Siman 61

Anything that is customary in the province to write in deeds—whether it be "trustworthiness," or "they wrote it in the marketplace," or "cancellation of protests," or other improvements of the deed that the scribes are accustomed to write—anyone who grants a transfer via sudar to write a deed, his intention is that they write it according to the custom of the province. One does not need to specify that they should write all the fine language contained therein, and it will be further explained in siman 71. Similarly, if they are accustomed to write in deeds that all this was done with a "stringent ban" and with a "formal document," "not as an asmakhta" and "not as a mere template of a deed," the witnesses must write so, and they do not need to ask the borrower or the seller whether to write so. And in siman 42, section 13, we explained that there is a dispute among the poskim whether through superfluous language in a deed, such as "not as an asmakhta" etc., there is an empowerment for the holder of the deed and we do not say "his hand is at a disadvantage," or not. It was explained there that it is difficult to extract from the one in possession by means of this; see there. Regarding a deed that comes before us and there was not written in it that which is customary to write in all deeds, some say that we judge it as if it were written, provided only that it is known that the borrower or the seller knew that it is customary to write so in deeds (Shach). And some say that since it was not written in it as in all deeds, presumably they explicitly stipulated so, that the holder of the deed should not have this empowerment (Urim VeTummim and Netivot HaMishpat). And there is a proof from what the sages, of blessed memory, said, that "responsibility is a scribal error" because "a person does not throw away his money for nothing," and they did not state the reason being that they are regular to write so in all deeds. And it appears to me that the primary view is like the first opinion, as I wrote in siman 42, section 19, and so wrote there our teachers, the authors of the Shulchan Arukh. And so it is implied from our teachers, the authors of the Tosafot (Bava Metzia 104a, s.v. "Haya"). And from "responsibility" there is no proof, for certainly regarding collection from purchasers, it is impossible to collect based on this reason, and therefore they stated a powerful reason that "a person does not throw away his money for nothing." But from the borrower or the seller himself, such as "trustworthiness" and "cancellation of protests," even though it was not written, it is considered as if it were written if the custom is to write so in all deeds, provided only that they knew of this, as I wrote.

And they further brought proof for their words from the words of Rav Hai Gaon, which our teacher, the Rema, brought, and this is his wording: One who accepts to write a document with all the languages of merit, even though the scribe did not know how to strengthen it properly, since it is written in it, "And the responsibility of this document I have accepted upon myself like all documents that are customary in Israel, not as an asmakhta and not as a mere template of a document," it stands for all the generalities at the beginning of the matter; but conditions such as trustworthiness or the cancellation of a protest in a gift, we do not consider them unless they are specified. Thus far his words. It follows that since in all documents this is written and here it was not written, we do not say it is considered as if it were written. And the first opinion explains his words that the debtor did not know that the custom is to write trustworthiness and the cancellation of a protest in all documents. And besides this, there is no proof from here, for certainly if the custom in his days was to write trustworthiness and the cancellation of a protest in all documents, he would have judged this document also in this manner. And perhaps in his days there was no fixed custom in this, and therefore the Gaon says that this scribe who did not know how to write the strengthening of the document properly, since he wrote in it "And the responsibility of this document etc.," it is as if he wrote all the strengthenings. And he explains that this is specifically for the details explained in the document, but not to add upon what was not explained. However, if the custom is so, we certainly say that even though it was not written, it is considered as if it were written.

Any matter that the people of the province have practiced regarding documents, even if it is not according to the enactment of the sages, we follow it, provided that it is not against the law of the Torah. For example, a document in which it is written that the creditor has permission to seize the property of the debtor, whether in his presence or not in his presence, without the permission of the beit din and without appraisal and public announcement—he is not permitted to transgress the words of the Torah to seize his property, for one who lends to his fellow shall not take a mashkon from him except through the beit din, as has been written in siman 97. However, if he did not find a judge who wants to adjudicate for him, then he has permission to take the law into his own hands. And likewise, if it is a common custom in the city to seize without appraisal and without the permission of the beit din, we follow it [Sma], for since the custom is such, everyone who borrows does so with the understanding of the custom. And the Torah did not forbid this except when doing so without the will of the debtor, but if the debtor is amenable, the Torah did not forbid it. And since the custom is such, it follows automatically that the debtor is amenable to this. And in siman 103 more of this has been explained; see there.

A community that enacted a regulation that no deed of purchase, sale, gifts, or loans shall be effective unless it was in the handwriting of the city scribe, and they enacted this due to concerns of forgeries—this includes only deeds upon which witnesses are signed. However, a deed in the handwriting of the borrower, the seller, or the giver, or a deed of waiver in the handwriting of the waver, is not included in this. For since the deed is in his own signature, the admission of a litigant is like a hundred witnesses, and the primary purpose of the regulation is due to false witnesses; but regarding his own handwriting, what concern is there? And there is no difference whether the entire deed is written in his handwriting, or if the entire text was written in the handwriting of another and the litigant signed in his own handwriting upon it [Sma].

The custom of the ancients was that when one would perform a kinyan before the scribe and the witnesses to write a certain document, if they were not free at that time to write the document to deliver it into the hand of the lender or into the hand of the buyer, they would write a brief draft of the document as a memorandum so that they would not forget when they were free to write the document properly. The scribe would write the draft and the witnesses would sign it, and it would remain in the hand of the scribe. That draft does not have the law of a document unless there is a custom in the city that it should have the law of a document; for as long as the witnesses did not sign it to deliver it to the claimant, but only as a mere memorandum, it is not called a document. So too, a document that was not authorized to be written, such as where the witnesses wrote without the command of the obligated party and it is possible to say that the witnesses erred, one does not judge based on that document, as I wrote in siman 39, because it is considered "from their writing," as I wrote in siman 28, for the sages only permitted a document written properly for the sake of the order of the world, as is written there. However, there are those who disagree and hold that whenever they wrote a draft with the intent to write a document, even though the document was not written, this draft has the law of a document. This is specifically if it was by the command of the borrower who obligated himself before witnesses to write the document and they did not manage to write it properly; then the draft has the law of a document. But without the command of the borrower, this has no law of a document [Shach and Acharonim].

A document in the name of Reuven, in which it is written that anyone who produces it may collect with it without a power of attorney—if there is a custom in the city not to collect with it without a power of attorney, one may not collect, for this is written only as a general reinforcement [Tur]. However, if there is no custom in the city not to collect with it without a power of attorney, his condition is valid, and he collects with it without a power of attorney, even if it is not explicitly written "without a power of attorney," but rather that anyone who produces it may collect with it [Beit Yosef]. And even if it is written in it that he is obligated to anyone who produces it, whether a Jew or a non-Jew, and even though the idolater does not acquire it by the letter of the law—for it must be said that the witnesses acquire it now on behalf of the one who produces it, and acquisition is based on the principle of agency, and there is no agency for an idolater [Damesek Eliezer]—nevertheless, regarding a Israelite, his condition is valid. And some disagree and hold that even regarding an idolater he can obligate himself [Netivot HaMishpat]. And this is specifically when the one producing it was born at the time of the loan; but if he was born after this time, he does not collect with it, for he could not obligate himself to one who has not yet come into the world. And a document in which the name of the lender was not written at all, but only "to any bearer," anyone who produces it collects with it, as I wrote in siman 50.

One scrutinizes the wording of the document and judges according to that scrutiny, and we do not say "this man is not so learned and he thought that the law was such-and-such and because of that he wrote that wording." There is no distinction regarding a document in whatever language it was written, whether it was written in the Holy Tongue or whether it was written in a foreign tongue; one scrutinizes according to that language. And one who claims that he is an am ha'aretz and does not know at all and does not understand what was written—and even if we knew that he does not understand the language at all—there is no substance to his claim. As has been written in siman 45, since he signed himself or commanded the witnesses to write, he obligated himself to everything written in it. And all scrutinies that are to be scrutinized from the document, one scrutinizes in it, and we do not say "this man is not of the sort who would scrutinize so much," and especially if he cannot read at all. However, this is a great principle in all matters of conditions that a person stipulates with his fellow: one does not follow the written wording, but rather the intention according to the subject of the matter, as in the case of vows which is explained in Yoreh Deah siman 218. And the judges must understand the depth of the matter and they shall arrive at the truth.

One who wishes to disqualify a document because it is a very old document, and furthermore because the lender has already reached the height of poverty and did not produce it until now, and furthermore because he did not produce it during the lifetime of the borrower but only after his death and claims from his heirs—nevertheless, the document is not disqualified by this if the lender provides proper justifications, only that the beit din is obligated to investigate and inquire and examine it very thoroughly. And even though it contains a clause of trustworthiness and it is also written therein that the defendant shall not plead any claim against the document and he accepted this upon himself with all stringency, nevertheless the beit din is obligated to investigate and inquire and examine in order to bring the law to its truth. And if it appears to the judge by a proven assessment that the judgment is deceptive and false, he shall write and sign that no judge should involve himself in this judgment and give the writing into the hand of the defendant. And it appears to me that all this applies to a document with witnesses, but a document in the handwriting of the borrower, if it has so many flaws as have been explained, since in any case he is believed to say "I paid" by means of a shevuat hesset as written in siman 69, in this case we do not obligate him even in an oath but rather a herem stam, and all the more so if he produced it against his heirs, there is no substance to it and we plead that it is paid, and see there in siman 108.

A borrower who paid the lender, and the lender does not want to return his document to him, one must compel him until he returns it, because he violates a prohibition of the words of tradition: "let not injustice dwell in your tents." And a document that has been paid or that has been forgiven, the lender must return it to the borrower because the paper is his, as he pays the scribe's fee; and if the lender paid the fee, the borrower must pay him, and nevertheless he may not withhold the document for this reason, as I wrote in siman 57. Therefore, one who holds a document of a gift with which according to the law he cannot collect, and the giver claims that they should compel him to remove the document from his hand, they do not compel him, for the recipient of the gift pays the scribe's fee and the paper is his. However, if they see that by this document remaining in his hand there will be damage, they compel him to burn the document, and the other shall pay him the scribe's fee and the paper.

There is no difference in monetary laws between a man and a woman, for a woman is equal to a man regarding all laws and punishments in the Torah. Therefore, a woman who is obligated to swear according to the enactment of the Geonim—who enacted an oath for a debtor when he claims "I do not have [the funds]," as written in siman 99—and she refuses, we compel her until she obeys the law, just as we compel a man.

A document in which it is written that if Reuven does not do this thing, he shall pay Shimon the expenses he incurred, and he did not do it, he is obligated to pay him. However, if it is written in it that he shall pay the expenses in double the amount of what he incurred, it is an asmachta, since he accepted upon himself an additional matter in the nature of a fine, and he does not collect even when it is written in it "not as an asmachta," etc., for the writing of "not as an asmachta" is only effective in a place where the asmachta is not so explicit in the document. But when we see an explicit asmachta, this writing is not effective unless they acted in a manner that there would be no asmachta in this, such as with a kinyan and in a prominent beit din, or with "from now" as a complete gift according to the opinions that will be explained in siman 207 regarding the laws of asmachta. And even though he does not pay the double amount, he does pay according to what he incurred. And if it is written in it that he shall pay him for what will be his prevention of profit, it is an asmachta, for prevention of profit is not considered damage [Shach]. And it appears to me that specifically prevention of profit from a business that is not fixed for him for his livelihood is not called damage, but from a business fixed for him for his livelihood, it is certainly called damage and is not an asmachta. And similarly, if he caused him to lose thereby from the commerce of a fair fixed from time to time, it is certainly called damage; see Orach Chaim siman 539 [and the explanation of the Sma in subsection 12 regarding the version "until the double" has not been clarified to me, and delve into this].

A document in which it is written in this language: "An explanation of what Reuven admitted before us, that he has from the money of the estate of Yaakov such and such," this does not have the law of a document to collect with it from encumbered properties, for there is no kinyan in it, but it is a mere admission. The language proves that they did not intend with this writing anything but a memorandum of matters and not for the purpose of a document, as they did not write "we have testified regarding ourselves" or "we, the undersigned witnesses, testify," nor did they write "he admitted before us" without qualification as they write in documents of admission. And since they wrote "An explanation etc.," they diminished it by this, which indicates a mere memorandum of matters. Therefore, he is also believed to say "I paid," and it is not even like the testimony of witnesses orally, for this is "from their writing" [ibid.] and it is only effective so that he cannot say "the matters never occurred" or "I was mocking you" or "so as not to appear wealthy," if the witnesses say that he admitted before them with a complete admission, as will be explained in siman 81. And if the witnesses are not before us, since the claimant produces such a document and they recognize the signatures of the witnesses, the defendant cannot claim "the matters never occurred," "mocking," or "not to appear wealthy," for presumably it was a complete admission, as otherwise they would not have given the document into the hand of the claimant [it appears to me]. And any document regarding which there is a doubt whether it was written as a complete document or as a mere memorandum of matters depends on the understanding of the dayanim according to the matter and the language [it appears to me].

Reuven and Shimon were partners, and Shimon obligated himself in a document toward Reuven for up to one thousand gold pieces. It is written in the document that this document was given to him in a manner that whatever is made known according to the accounting that remains of Reuven's in his hand, and he gives him a writing signed with his signature, he shall be obligated to him for that sum via this document which is with witnesses, to seize with it from purchasers. Therefore, he wrote the sum of one thousand gold pieces because he knew that Reuven certainly did not have more than this in his hand. For if he had not written a sum at all, but rather indefinitely "whatever he shall be obligated," he would not collect with it from purchasers, as a matter that is not fixed is not collected from purchasers, as the Rambam wrote in chapter 21 of Hilkhot Malveh and as will be explained in siman 115. Therefore, he made a fixed matter of not more than one thousand gold pieces. And even though below it is not fixed, nevertheless, since above it is fixed, he collects from encumbered properties [Urim VeTumim]. And even if we say that we require it to be fixed below as well [Tosafot Ketubot 50b], this is also called fixed, for it is in the hands of the lender and the borrower to make it fixed when they perform the accounting [Netivot HaMishpat]. And this document was written on the first of Nisan, and on the first of Iyar, Reuven produced a signature of Shimon where he admitted that Reuven has one hundred gold pieces against him; Reuven collects them from purchasers who bought from Shimon from the time of the first of Nisan, for then the report went out that he has a document against Shimon for up to one thousand gold pieces.

Reuven who summoned Shimon to a beit din and said to him: "You admitted before witnesses with a complete admission that you owe me a maneh by a shtar, and now the shtar was stolen and they gave it to you," and Shimon replied: "It is true that I admitted, but you never lent to me, and the event was that Levi requested of me to make a shtar of debt against myself in your name as if I had borrowed money from you, and I delivered the shtar to Levi, and he gave me a pledge so that I would be secure in that which I obligated myself in the shtar, and he did so for whatever matter he was compelled to do so, and afterward Levi returned the shtar to me and I returned his pledge to him"—Shimon is believed with a shevuat hesset by a migo that if he wanted he could have said "I paid," and he would have been believed with a hesset since the shtar is not in the hand of the lender. Therefore, he is also believed to say that the event was as he says. And so too in all similar matters, he is believed with a migo if he has one.