Siman 69

One who borrows from his fellow and did not make a document with witnesses for him, but rather wrote in his own handwriting, [the lender] collects from unencumbered properties and not from liened properties, because such a document has no "voice" and is like an oral loan. Even if he wrote to him, "my signature below shall testify for him like a hundred witnesses," nevertheless it is only like any other handwriting. Even if it was validated in beit din that it is his handwriting, it only has the law of an oral loan, and he does not collect from the heirs nor from the purchasers, as will be further explained in section 9. Likewise, he does not take precedence to collect against a later lender, for there is no law of precedence in this, and he only collects from the borrower himself if he admitted that he did not pay. But if he claims "I paid," he is believed and takes a hesset oath and is exempt. The lender cannot say to him, "Why did you leave your document in my hand?" for he can say to him, "I was not concerned about leaving it in your hand since it is not a document with witnesses." Some say that he cannot say "I paid" regarding handwriting, but the primary ruling is according to the first opinion [Shach]. Even if the lender seized [property] and says "I am certain according to the opinion of the 'some say'," he cannot say so. All the more so today, the custom has spread that we judge that he is believed to say "I paid" [ibid.]. Our teacher, the Rema, wrote that a judge has only what his eyes see, thus far his words; for example, if the judge sees some assessment that if he had paid him, he would not have left the document in his hand, he is not believed to say "I paid." For instance, if the lender was able to collect with this document in the secular courts; therefore, it is a simple matter that if the document is of the governmental documents, such as a note of exchange (weksel) and the like, he is not believed to say "I paid" [Urim VeTumim]. However, he has the power to impose an oath upon the lender that he should swear that he did not pay him. And in this too, if the judge sees that the borrower is seeking pretexts against the lender to impose an oath upon him because he knows that the lender will not swear, we do not obligate him in an oath, but only a herem stam, as has been written regarding all types of oaths in siman 15. Likewise, regarding a document payable to the bearer, it appears that he cannot say "I paid," for he would not have left it with him since anyone who finds it would be able to claim from him, as has been written in siman 50. And in this too, it is according to the sight of the eyes of the judge [it appears to me]. If "trustworthiness" is written in the document, certainly he cannot say "I paid," and also the lender does not need to swear. Whether an act of kinyan is required for the trustworthiness will be explained in siman 71. If the borrower admits to a part, he is obligated to take a Torah oath. If there is trustworthiness in it such that he cannot deny [the debt], the admission does not obligate him in a Torah oath, but rather he takes a hesset oath [Shach]. It is a simple matter that even though he is believed to say "I paid" regarding handwriting, nevertheless he takes a hesset oath as has been explained. And if the borrower says to him, "Swear and take your money," he can say so to him, unless the judge sees that there is craftiness in the matter, as has been written.

If the borrower denies and says that this is not his signature and it is forged, it must be validated in beit din. The Tur wrote in the name of Rav Sherira Gaon that it is validated by witnesses who testify in beit din that it is his handwriting. However, if they validated it from two documents or from two ketubot, they do not, since the validation of documents is rabbinic; where it was stated, it was stated, and where it was not stated, it was not stated. The Tur questioned him and wrote that one should not distinguish between the validation here and other validations. Thus far his words. Some say that the opinion of the Gaon is that only regarding the validation of witnesses did the sages, of blessed memory, show leniency with several types of validation, as I wrote in siman 46, because according to the Torah, witnesses signed on a document are as if their testimony was investigated in beit din, and it was the rabbis who required validation; but the signature of the borrower himself requires validation according to the Torah, therefore it requires complete validation through the testimony of witnesses that it is his handwriting [Bach and Shach]. And according to the reasons we wrote there, one should not distinguish in this. And it appears to me that the opinion of the Gaon is that when the litigant claims it is forged, it requires validation according to the Torah, and as I wrote there that some say so, see there. The great later authorities agreed with this reasoning [Beit Shmuel Even HaEzer siman 42 and Urim VeTumim in siman 46]. According to this, if the borrower does not claim it is forged and they collect from orphans, such as when it is within its time, they validate it like other validations [ibid.]. When witnesses testify regarding his signature, he is established as a liar and pays, and he is not believed to say "I paid"; even if he did not deny the loan but only claims that the loan is true and the document is false, he is also established as a liar [Netivot HaMishpat]. If his signature was not validated and he claims that he did not borrow at all, he swears a shevuat hesset and is exempt. Even if there is a trust clause in the document, it requires validation, for what benefit is the trust clause since he claims it is forged?

And if he claims and says, "It is true, it is my signature, but I never borrowed from him, and I remember that I signed my name at the bottom of the paper and forgot that damage could arise from this, and it is possible that he found this paper and wrote a debt-contract upon it above my signature," he is believed with a shevuat hesset by way of a migo that if he wanted, he could have said "I paid." According to this, if it is within the time that he is not believed to say "I paid," as I wrote in siman 78, he is not believed in this claim either [it appears to me]. And also, he is not believed in this claim even after its time except when he claims a claim of certainty—that he did not borrow from him and did not sign himself upon this loan. But if he claims a claim of doubt, such as saying, "It seems to me that I do not remember this loan at all, and presumably I did not borrow from him, and perhaps there is some reason for this signature," he is obligated to pay, for his doubt does not remove the certainty of his signature. However, he can adjure the lender according to the assessment of the beit din. And similarly, he is believed to say, "It was a matter of trust between me and him, for I trusted him that he would not claim from me"—he is also believed when he has a migo of "I paid," as has been explained. But he is not believed to say that he prepared the shtar to borrow with it and it fell from him and this person found it, for we do not concern ourselves with such a falling—that he would lose it and this lender himself would find it—even when he has a migo of "I paid," for it is a matter that is not common at all. Furthermore, presumably as soon as it was written it was delivered to the lender, for it is not the way to write a debt-contract against oneself when the loan is not ready and prepared [see Shach and Netivot HaMishpat]. And the beit din does not claim any of these claims on his behalf unless he claims them himself.

There is no difference in a handwritten document between whether he wrote himself "I, so-and-so, the undersigned" or "I, the undersigned, admit that I owe so-and-so a maneh" and signed his name below, or whether the entire document was written in the handwriting of another and he signed himself below. Similarly, if the entire document is in a single line, where at the beginning of the line it is written "I, the undersigned, owe so-and-so a maneh" and he signed himself at the end of the line, it is valid [Shach]. Similarly, if he did not sign himself below at all, but rather wrote "I, so-and-so son of so-and-so, owe so-and-so or any bearer of this document a maneh," except that in this there is a distinction: for when he signed below, even if the entire document is from the handwriting of another, it is a superior document; but when he signed above and not below, it is required that the entire document be in his handwriting, and it is not sufficient that he signed his name at the top of the paper, because a person is not careful about signing his name at the top of a paper, and we fear perhaps this person found it and wrote a document beneath it. And in this, even if he did not claim so, we claim on his behalf, because this is not the way of a document. Therefore, we require that the entire document be in the handwriting of the borrower. And if the document was written in one line and his signature is in a second line, or if the document and his signature are in one line, it is valid even when the document is not in his handwriting. And if the borrower claims that he was signed as a witness on the debt document of another, and this plaintiff cut off the entire document and in the space between the document and the witness wrote a debt document against him, his claim is a valid claim, and he swears a hesset oath and is exempt; however, we do not claim this claim for him.

Our teacher, the Beit Yosef, wrote that even if he did not write his name at all, but rather wrote "I am indebted to so-and-so such-and-such," since it is his handwriting, he is liable. Therefore, the notes that partners produce against one another, since it is their handwriting, even if there is no name in it at all, but rather it is written "I received on such-and-such a day from the partnership business such-and-such," we collect with it from unencumbered property, and he is not believed to say "the matter never occurred." Thus far his words. And there are those who disagree on this, for certainly partners have such a custom, but regarding a promissory note, since the custom of the world is not so, how can we extract money with this? For behold, he can claim that he wrote it as a mere template and not for the purpose of a legal document [Shach]. And so the later authorities agreed. And it appears to me that if he did not claim this argument himself, we do not claim it for him; rather, the beit din says to him: "Is this not your handwriting?" If he responds that he wrote it as a mere template, he swears a hesset oath and they exempt him. And if he did not claim this, they tell him that he must pay, and he can administer an oath to the claimant that he is owed such-and-such.

A document in the handwriting of the borrower where witnesses are also signed upon it: if the witnesses do not testify to the essence of the loan but rather testify that this is his signature, it does not have the law of a document with witnesses. However, when witnesses testify to the essence of the act, in that they write "we testify that Ploni borrowed from Ploni and in our presence the borrower signed himself," this has every law of a document, and he is not believed to say "I paid," and he collects from encumbered properties. And even when the entire document is in the language of the borrower, wherein it is written "I, the undersigned, admit," and not the language of witnesses, nevertheless, since the witnesses signed themselves upon the essence of the act, this has every law of a loan in a document with witnesses.

Our teacher, the Beit Yosef, wrote: A ledger upon which the parties signed and had one witness sign with them, he is not believed to say "I paid" as long as the ledger is in the hand of his fellow. Thus far his words. And there are those who disagree with this, for according to the reason explained in section 1, that whenever a document is without witnesses he was not concerned about leaving it in his hand, if so, also regarding this ledger he was not concerned about leaving it in his hand since he cannot collect from encumbered properties with it. And the first opinion holds that the reason he is believed to say "I paid" regarding a document in his own handwriting is because he can say, "Since there are no witnesses on the document, I forgot about it," and this reason does not apply to a permanent ledger. But in truth, the primary reason is as I have written [Shach]. However, the main point depends on the assessment of the dayanim and according to the custom, for there are times when partners make a ledger from the outset to write there the receipts of each and every one, and since it was made for this from the beginning, it is complete proof. And so too there are merchants and shopkeepers who give merchandise on credit and they have a ledger where the one receiving the merchandise writes in the ledger in his handwriting, "I received such and such merchandise," and when he pays, he erases it from the ledger; such a ledger is certainly complete proof. And in similar cases, the dayanim must understand the ways of commerce and the status of the parties according to their trustworthiness and their wealth, and they will then be able to bring forth the law to its truth. And if it is not possible to clarify this according to their understanding, the defendant shall swear a shevuat hesset and be exempt.

That which we explained, that the defendant is believed to say "I paid" regarding his own handwriting, this is specifically when the time for payment according to the time of the document has passed. However, if it is still within its time, he is not believed to say "I paid." The details of the laws regarding this will be explained in siman 78, for sometimes even within its time he is believed to say "I paid" when he has a migo; see there. And one who produces against his fellow a signature alone without any writing of a document, and says that he gave him his signature and trusted him not to write upon it more than what he would borrow from him, and says that he borrowed from him such and such—the great Acharonim agreed that one cannot collect with a blank signature, and it is nothing, except in a place where there is a custom. And it appears to me that with a Wechsel one can collect with a signature alone, for with a mere paper it is certainly not the way of the world to give the lender a blank signature into his hand without writing, as he could write as much as he wants; and sometimes it occurs that they give a blank signature, they place it in the hand of a third party, and when the third party delivers it to the second side, he writes upon it from above that such and such is owed on this, for this reason, so that the claimant will not write as much as he wants. But with a Wechsel, where by the law of the kingdom it is recorded on every Wechsel how much to collect with it and no more, there is no longer a concern in this that he will write as much as they want. And such is the custom of borrowers, that they give to the lenders a Wechsel with a signature alone so that he can write upon it whatever time he wants, so that its validity will not be lost according to the statute of the Caesar.

If the lender produced a document in the handwriting of the borrower against his heirs, even though they admit that it is the handwriting of their testator, we claim on their behalf that perhaps it was paid, and they are exempt even from the oath of heirs. However, we issue a general ban in the presence of the heirs, so that perhaps if they know that their testator had not yet paid, they will be caught in the ban if they do not pay; for the beit din must claim on behalf of heirs everything that their testator could have claimed. This is the primary view, and not like those who disagree and say that the heirs must swear that they do not know that their testator is still indebted to him. Nevertheless, our teacher, the Rema, wrote that in recent generations it has become the custom to be stringent upon the heirs that they should swear if there are some grounds for the matter and there is reason to doubt if he still owes him. Thus far his words. And according to the poskim who hold that he is not believed to claim "I paid" against a document in his own handwriting, as I wrote in section 1, the heirs are also not believed and must pay. And even though we do not rule like these poskim, as I wrote there, nevertheless there is a practical difference in a case where he himself would not have been able to say "I paid," such as a Wechsel, as I wrote there; regarding this, the heirs are not believed. Also, according to what we explained there, that it depends on the assessment of the judge, the law is the same regarding heirs: if according to his assessment the borrower had not yet paid, he must obligate the heirs to pay, and likewise the opposite, if according to his assessment they already paid, he exempts the heirs.

If there is a clause of ne'emanut in a document, even a general ne'emanut and it is not explicitly stated therein that he grants him ne'emanut also against his heirs, they are obligated to pay [Taz]. And likewise, if the document is still within its time, if the heirs admit that this is the handwriting of their decedent or if it was authenticated in beit din, he collects from them. But if they do not admit that it is the handwriting of their decedent and his signature was also not authenticated, even though it is within the time and contains a clause of ne'emanut, they are exempt from paying. However, they place an issur in the presence of the heirs if any person knows that their decedent owes this debt and did not pay it. And if the decedent admitted during his illness with a complete admission that he owes a certain amount to so-and-so by a document and commanded to pay, or if it was found written in his ledger that the handwriting of his in the possession of so-and-so is still unpaid, or if the lender summoned him during his lifetime to beit din and the beit din commanded him to pay and it is known that he has not yet paid, then even if the handwriting of the borrower was not authenticated, the heirs are obligated to pay [great later authorities wrote regarding this, and according to what I have written, so it appears primary for the law]. 11. If Reuven produced a judgment against the heirs of Shimon that their father was obligated to him an oath regarding a monetary claim, and they say "perhaps he swore to you" or "he paid you," they are exempt even without an oath, and they only place an issur in the presence of the heirs lest they heard from their decedent that he owes money to this one and did not pay it, for then they would be obligated to pay. And even if it is known that he did not swear and did not pay, he also has nothing against the heirs except the imposition of the issur that we wrote, since he was not clearly obligated in money but rather an oath, and they are able to say that had he still been alive, he would have sworn that he is not obligated to this one [Sma]. And if their decedent said during his lifetime that he does not wish to swear but rather to pay, and he did not admit to the money that is due from him but rather said that he does not wish to swear even in truth and it is better for him to pay, and he did not manage to pay before he died: if he was still able to retract what he said—that he would pay and not swear—the heirs are not obligated to pay. But if he was not able to retract, it has become a complete debt upon him and the heirs are obligated to pay. And when he is able to retract was explained in siman 22.