Siman 68

[All the laws of secular courts in this siman refer to the Barbary states as they were in the time of the Shas; however, our secular courts under the government of our lord the Emperor, may his glory be exalted, and likewise the secular courts in all the countries of Europe, their words are strong and established, for the law of the kingdom is the law.] A document written in any language and in any script, if it was made according to the regulation of Jewish documents such that it cannot be forged, nor added to, nor diminished, and its witnesses were Jews who know how to read it, behold this is valid; and he cannot say "I have paid," and he collects with it from encumbered properties. And in siman 45 it was explained whether it is valid post facto when they did not know how to read it and relied upon others; see there.

Documents signed by common gentiles that were not made in the courts are completely invalid and are like a shard of pottery. However, regarding documents made in the courts, the sages, of blessed memory, said that all documents made in the courts are valid, except for documents that are like bills of divorce [Gittin 10b]. There are two opinions regarding this law: the opinion of the Rambam and the opinion of the Rosh, of blessed memory:

The opinion of the Rambam, of blessed memory, [Chapter 27 of Laws of Creditor and Debtor] is that any matter that is performed and established aside from the document, such as buying and selling where the kinyan is through money, document, or chazakah, and this document is merely for evidence, a document made in the arkaot is effective. And even though there are no witnesses from Israel, he is not believed to deny the document, for the arkaot will not discredit themselves to testify falsely, and it is as if it were made before the beit din of Israel. But a matter where the kinyan is through the document, such as a deed of gift through which he transferred ownership by writing to him "my field is given to you," it is not effective; for even though we believe them, nevertheless it is not effective from the Torah to acquire with such a document [unless by dina d'malkhuta]. And similarly, documents of admissions, waivers, and compromises are not effective, for perhaps they were not performed according to the law, as the admission was not a complete admission, and similarly the waiver and compromise were not performed according to the law of the Torah [Taz]. But documents of loans that the arkaot write, stating that in their presence he received the money and the document is merely for evidence, this document is effective, except that he may not collect from encumbered properties with it. And specifically that the arkaot write that in their presence the borrower or the seller received the money, and they write in the document "before us Ploni gave to Ploni such and such the price of the sale or the loan," and that specifically the judge of the arkaot signs upon this. But in a gathering of the members of the arkaot without the confirmation of the judge, it is nothing. And the matter of the document according to this opinion is that the document is made before commoner Cutheans and they write and sign and go to the arkaot only to confirm their signatures, and this is similar to our confirmation of documents where the witnesses write and sign and go to beit din to confirm the signatures. Therefore, witnesses of Israel are required to testify about the signed Cutheans that they are trustworthy and do not lie and will not take a bribe to testify falsely, and also regarding the arkaot and the judge they shall testify that they are not known for accepting bribes; and then they collect from unencumbered properties. And if any of these things are missing, they are like a shard of pottery.

And according to the opinion of the Rosh, of blessed memory, there is a distinction in four matters from the opinion of the Rambam, for we require that everything be done before the courts, meaning the writing of the deed and the signatures of the witnesses shall be written and signed before the courts; but if they brought a written and signed deed for validation, it is nothing. And they do not require witnesses to testify regarding the signatories and regarding the courts that they do not accept bribes, for ordinary courts will not act falsely. And also, it is not necessary that it be written in the deed that they saw the giving of the money, for presumably it was done properly, and one collects with this deed even from encumbered properties, for all matters done in the courts have a voice, and the purchasers should have been careful. And according to this, even if the judge is not signed to validate the signatures of the witnesses, but rather since it is known that all matters were done before them, or that the courts wrote thus—that everything was done before them—they would not disqualify themselves by lying. And even if a report went out about them that they accept bribes to pervert judgment, nevertheless, for false testimony they would not disqualify themselves. And there is no distinction whether one other Cuthean witness is signed on it or two, since it was done before the judge. However, if only the scribe appointed by the judge wrote it not in the presence of the judge, it is nothing; yet, in a place where there is dina d'malkhuta to validate a deed made by the scribe of the judge, it is valid.

And some say further that documents of admission are valid like documents of loans, and similarly documents of waiving a debt are valid in the ערכאות, and similarly a gift acquired through a kinyan or through chazakah where he only admitted in the ערכאות in a manner where the entire document is nothing but mere evidence, what was done before them is valid. Our teacher, the Rema, wrote this. And according to what we have explained, there is no dispute here, for certainly regarding the essence of the document even the first opinion admits that it is valid; rather, we are concerned lest the admission and the waiving of the debt were not according to the law, as I wrote in section 3. Therefore, even according to this opinion, it is obvious that if there is reason to be concerned for this, there is no logic at all to validate it. And if it is proven from the language of the document that it was done according to the law, certainly even the first opinion admits to validate it [so it appears to me]. Therefore, a person facing death who made a will before the ערכאות, the will is established, and as will be explained in siman 253, for the words of a person facing death are considered as if written and delivered, and the document is only for mere evidence. And a book in which the ערכאות write and confirm every matter is like their document, for since it is officially certified and confirmed, and it is possible to receive a copy from there according to the protocol, and the copy is also confirmed by the judge, certainly everything that was written there was done so.

All this applies if there is no law from the statutes of the kingdom regarding this, but in a place where it is the statute of the kingdom to write all matters in the courts, all deeds made before them are valid, and even deeds of gifts, by power of the principle "the law of the kingdom is the law," and all the more so when there is already a custom in that place to validate them, for all types of deeds made there are valid. In siman 369 the details of the laws regarding this will be explained. And any deed that we validate by power of "the law of the kingdom is the law," if it was not written properly according to the law of the kingdom, even though it was written properly according to our laws, it is invalid, for we shall not validate them more than they themselves do. And likewise conversely: if it is invalid according to our laws and valid according to their laws, for the law of the kings is only to validate the deeds that come up in the courts and to believe their judges and scribes, but not regarding the methods of kinyanim, for even the nations themselves differ in the methods of kinyanim. Therefore, if the method of acquisition is not effective according to our laws, his kinyan is not a kinyan. And some disagree even in this, for since according to their law the kinyan is good, he has acquired it. And in a place where there is no statute of the kingdom, they shall judge according to what we explained in the previous seifim. And as long as it was not done according to the law, even if the courts already judged according to that deed and established the buyer in his purchase, it is nothing. And likewise, in any place where it is invalid, even if the delivery of the deed was before Jewish witnesses, it is nothing [see Sma subsection 15]. The Rambam, of blessed memory, validates this, as he wrote [ibid.]: A deed whose witnesses are gentiles, which the borrower delivered into the hand of the lender or the seller into the hand of the buyer in the presence of two witnesses from Israel, even though it was not made in the courts of the gentiles and does not contain all the matters we enumerated, behold, he may collect from unencumbered properties, provided that the witnesses in whose presence he delivered it know how to read it and they read it when it was delivered in their presence, and it must be according to the correction of a Jewish deed such that it cannot be forged, neither to add nor to subtract. And why may he not collect with it from encumbered properties? Because it does not have a "voice." Thus far his words. And likewise, it must repeat the subject of the deed in the final line, as written in siman 44 [Sma]. And there is one who says that this is specifically when the names of the gentiles signed on it as witnesses are distinct names that it is not the way of Jews to be called by those names, or in a place where Jews are not accustomed to sign on deeds at all [and the reason is there, see subsection 20].

If the judges of Israel do not know how to read this document that was made in the courts, they give it to two people to read it, one not in the presence of the other, and they shall read the document such that each one is found to be speaking as one speaking in innocence, and he collects with it from unencumbered property; and according to the opinion of the Rosh that we explained in section 4, he collects with it even from encumbered property.

A document made before gentiles, even commoners, and the borrower himself is signed upon it, even though he does not know how to read, he is liable for everything written in it; for behold, he resolved in his mind to obligate himself since he signed himself. And certainly, either they read it before him and he believed that reader, or even if they did not read it before him, nevertheless, since he signed himself, behold, by his will he obligated himself to everything written in it, as I wrote in siman 45 and in siman 61. Unless he clarifies that they deceived him, in that they told him that such and such was written in it and it was not so written; and he is not believed in his words regarding this without the clarification of witnesses [it appears to me]. And a document made in the courts and the borrower denies it, the judge is believed to testify that he wrote it, and the borrower is established as a liar by his hand [see in Netivot HaMishpat at the end of this siman].