Siman 51

Reuven who produced a document against Shimon and only one witness is signed on it, if Shimon denies and says "I did not borrow," he swears a shevuat de'oraita to contradict the witness, for in any place where two witnesses obligate payment, one witness obligates an oath. And even if there is a clause of trust in the document [Sma], for how is trust relevant when he denies the essence of the matter? But if he claims "I paid," the opinion of the Rambam in chapter 14 of Malveh is that he is not believed. And even though regarding his own handwriting he is believed to say "I paid" according to the Rambam, as was written in siman 69, because he was not concerned with receiving it back when he paid it, nevertheless regarding one witness, if he had paid him, he would not have left it in his hand. Therefore, his status is like one who is obligated an oath and is unable to swear, who must pay, as was written in siman 75, for the witness obligates him an oath to contradict him, and a claim of "I paid" is not a contradiction of the witness, for he does not contradict him with this. And even though according to the Rambam all documents are rabbinic, as was written in siman 28, and regarding a rabbinic oath it was explained in siman 75 that we do not say "one who is obligated an oath and is unable to swear must pay," nevertheless documents are different, for they established them entirely like those of the Torah for the sake of the order of the world. And if the borrower claims "let the lender swear to me that I did not pay him," he must swear. And even though regarding anyone obligated an oath and unable to swear he must pay and cannot say to his counterparty "you swear," as was written there, nevertheless here the lender is obligated to swear when the borrower demands of him that he swear, for it is no worse than a complete document when the borrower says "swear to me that I paid you," where he is obligated to swear as was written in siman 82. And even when there is a clause of trust in the document he must swear, for behold, if he were to contradict the witness, the trust would not be effective; therefore also regarding "I paid" he can make him swear [Taz]. And many of our teachers disagree with the Rambam and hold that he is believed to say "I paid" just as with his own handwriting, for in this case too he was not concerned with taking it from the hand of the lender since it contains only one witness; therefore he swears a shevuat hesset and is exempt. And to this the Acharonim agreed, and such is the primary ruling [Shach], and even if there is a clause of trust in it [Ir HaKodesh]. And if the witness says that he knows he did not pay him, he swears a shevuat de'oraita to contradict him.

If one witness is signed on a document and a second witness testifies orally regarding that same loan, they join together regarding the matter that he cannot say "the things never occurred," for it is no worse than if two were testifying orally, where he would not be able to contradict them. However, when he claims "I paid," according to the latter opinion that was explained—that he is believed to say "I paid" against one witness who is in a document—he is believed in this case as well. For even though they join together, nevertheless, it is only like oral testimony, where he is believed to say "I paid," as one who lends to his fellow in the presence of witnesses does not need to return it to him in the presence of witnesses, as written in siman 70, and he takes a hesset oath and is exempt. But if the oral witness says, "I performed a kinyan from his hand regarding this, only the lender did not come to request that I sign," the two of them join together to make it a loan in a document regarding the matter that he is not believed to say "I paid," but not regarding the matter of collection from purchasers. Since they are not equal—as one is in a document and one is by kinyan—it is worse than if both were by kinyan, where they would collect from purchasers as written in siman 39, for in such a case there is no publicity. And in truth, if the kinyan here was also in the presence of the signed witness or in the presence of another, he would collect even here from purchasers. And if the one who testifies orally says that the document was also delivered in his presence together with the signed witness, it is a complete document to collect with it even from encumbered properties, for witnesses of delivery effect the legal severance, as will be explained. And even if he says plainly that it was delivered in his presence, we say that presumably it was delivered before both of them, for such is the way of the world, either to deliver before two or between him and himself. But if he says explicitly that it was delivered only before him, he does not collect from purchasers; for even two documents where one witness is signed on each document, or where each document was delivered before one, they do not join together to collect from purchasers, and all the more so a signed witness with a witness of delivery. But from the borrower himself he collects [Shach]. And all this is according to the poskim who hold that witnesses of delivery effect the legal severance, but according to those who disagree on this, as will be explained, there is nothing in delivery.

If even two are signed on the document, but each one signed not in the presence of his fellow, and the lender did not inform each one that his fellow is signed upon it, and the second one, when he signed, even though he saw the signature of the first, nevertheless the first did not know of the second; and similarly regarding a kinyan where each one performed it before the owner not in the presence of his fellow, and he did not inform each one that there was also a kinyan in the presence of his fellow—he may not collect from purchasers, for there is no kol in such a case. But if he informed each one that his fellow is also signed, or that there was also a kinyan in the presence of his fellow, he may collect from purchasers, for in such a case there is a kol, and it was upon the purchasers to be careful not to purchase from the borrower. However, regarding the claim "I have paid," there is no difference, for even if one does not know of his fellow, he is not believed to say "I have paid," for since he knows that two are signed upon it, he should not have paid until he received his document. And similarly regarding a kinyan, since he knows that the kinyan was before both of them and they can write a document when they become aware of one another, he should not have paid until he informed them that he paid so that they would not write a document [Netivot HaMishpat], and since he did not inform them immediately, it is proven that it is a lie and that he did not pay him.

In siman 45, section 16, it was explained that regarding a shtar where its witnesses were many and one of them was found to be a relative or disqualified, and the witnesses are not available to ask them, if there is clear testimony that they all sat to sign intending to testify, this shtar is void, for testimony that is partially void is entirely void, as I wrote in siman 36. And if it was not clarified, the testimony shall be established by the valid ones, for it is possible that the valid ones signed alone and left space for a great person to sign, and this relative or disqualified person came and signed without their knowledge, and we establish the shtar in its presumption of validity. And it is only valid if the disqualified ones are among the first, as I wrote there. Therefore, a shtar in which only two witnesses are signed and one was found to be a relative or disqualified, it is like a shard, even though there are witnesses of delivery. And it does not even require an oath against the valid witness, for its law is not even like a shtar with one witness, and we do not hang the matter on the possibility that there was no witness but the valid one and the disqualified one signed on his own, since there are only two witnesses here. And some say that even in this case we hang the matter on the possibility that the relative signed only as a filler, and the valid witness left space for another valid witness, and this one came and signed upon it, and its law is like a shtar with one witness that was explained in section 1, unless it was clarified that this disqualified person signed himself by the word of the owner of the shtar, for then the entire shtar is disqualified and it is only like an oral claim, so that if the borrower says "the matter never occurred," he swears a hesset oath and is exempt. And there is one who decided in favor of this opinion, but it is not clear, and in any case it is a legal doubt. Therefore, any shtar in which two witnesses are signed and one of them is found to be a relative or disqualified, if the valid witness remembers the testimony, he shall come before beit din and testify and he will be at least one witness. And if there is another who knows the matter and was present at the time of the act of the shtar, he joins with him to testify even though they did not designate him for testimony, as I wrote in siman 39, for it is not necessary that the witnesses be specifically invited to testify. And the valid witness is not valid unless he was not with the disqualified one at the time of the act upon which the shtar was written, for if they were together, the valid one is also disqualified, and it no longer avails that he should testify orally [Shach]. However, this is specifically when both of them sat to sign the shtar for the purpose of testimony, for then it is completely disqualified; but if they did not sign together, the valid one is not disqualified because of the seeing of the act that he saw together with the disqualified one, and he can now testify orally in beit din [Netivot HaMishpat]. And we have already explained in siman 36 that the primary view is like the one who holds that the disqualification of the valid one who was disqualified by the disqualified one depends on seeing and telling, and it was explained there in section 11 and in siman 45, section 19; see there.

One who writes all of his property to two people in one testimony, and the witnesses are relatives of one of the recipients of the gift and unrelated to the second, behold the deed is invalid because it is one testimony, and testimony that is voided in part is voided in its entirety, unless that person for whom the witnesses are disqualified withdraws from that money as is written in siman 37. And the withdrawal is only effective prior to the writing of the deed, but after it was written and disqualified, the withdrawal is not effective [Shach]. And regarding oral testimony where they testify in this manner, their testimony is accepted for the unrelated person; even though they testified that Reuven gave a gift of a maneh to two people and one of them is a relative of the witnesses, their testimony is accepted for the unrelated person, for they are able to testify that he gave fifty to this unrelated person, and the testimony regarding the relative does not affect the unrelated person. But a deed that was for two people and witnesses came to ratify it and they are relatives of one, it is not effective even for the unrelated person, for it is impossible to ratify this without that. And similarly, when they testify that an object was stolen from two partners and they are relatives of one, their testimony is not effective even for the second, for since they testify it was stolen from the unrelated person and he is a partner with the relative, perforce their testimony affects the relative and it is impossible to divide them, and from this one may judge regarding all matters [Shach]. And similarly, that which we said that in a deed it is invalid, this is specifically when it was written for both of them together, such as where it is written in it "I gave to Reuven and Shimon such and such," but if they are separated in the deed, such as where it is written in it "I gave to Reuven such-and-such field and I gave to Shimon such-and-such field," and the witnesses are found to be relatives of this one and unrelated to that one, the one to whom they are unrelated, his gift is established, for they are two testimonies even though they are in one deed. And similarly, if two or three matters were written in a deed and the deed was voided for one matter due to some reason and not due to a disqualification of the witnesses, the other matters in the deed are not voided. The general rule of the matter: in oral testimony, even when they testified regarding both of them together, their testimony is accepted for the fit person unless the subject of the matter is such that it is impossible to divide them, as has been explained. And regarding testimony in a deed, if it was written regarding both of them together, even though it is possible to separate them from one another, nevertheless the deed is disqualified; and when it was written for each one individually, their testimony is accepted for the fit person.

Regarding a get, we hold that the witnesses of delivery effect the severance, and even when witnesses did not sign on the get, since it was delivered in the presence of witnesses, the get is valid, as is written in Even HaEzer siman 124. Some of our teachers ruled that also regarding legal documents the law is so, that a document delivered in the presence of witnesses is a complete document even when they did not sign it, and also to collect with it from purchasers it is a complete document. Nevertheless, if the witnesses of the signature were found to be disqualified, even if only one witness is disqualified, the document is disqualified even if it was delivered in the presence of valid witnesses, because it is forged from within. However, the witnesses of delivery can testify orally before a beit din, and their testimony is effective to be oral testimony, but they do not have the power to write a document, and even the beit din does not have the power to write a document since he did not make them agents for the writing of the document, unless the borrower or the seller or the giver now commands them to write [Sma]. And some of our teachers disagree with the essence of this law and hold that witnesses of delivery are of no effect at all regarding documents, and the one in possession can say "I stand by" this opinion [Shach]. But if the borrower or the seller and the giver commanded at the time he delivered to them in his testimony that they should write a document, and they wrote it and did not sign, they can sign even afterwards; and if there was a kinyan then, they can write from the first date, as is written in siman 39.