Malveh veLoveh - Chapter 24

Chapter 23, Halachah 5.

For as explained in that halachah and notes, from the time the kinyan was performed, the lien on the borrower’s property was established.

For the deed of sale is only to the purchaser’s benefit; it cannot cause him any loss. If he does not desire the purchase, he can destroy the deed.
From the Rambam’s wording, it appears that this law applies even when the sale is not affirmed by a kinyan (Maggid Mishneh). When citing this ruling, however, the Shulchan Aruch (Choshen Mishpat 238:1) adds the comments of the Tur, who states that this law applies only when the witnesses saw the recipient of the field (or his agent) acquire the field through a valid kinyan, or the seller testifies that it was acquired through a valid kinyan. This opinion is also based on the rulings of Rashi, the Ramban and the Rashba.
The rationale is that, like a promissory note, the deed of sale could have been composed before the sale was completed, and the possibility for deceit arises. For example, a deed of sale could have been written in Nissan, but not given to the purchaser until Sivan. In the interim, the seller could have sold the field to another person in Iyyar. In Sivan, when the first deed of sale is received, the first purchaser can expropriate the property from the second, because his deed of sale makes it appear that he purchased the property first.
Sefer Me’irat Einayim 238:2 explains that the Tur’s ruling is intended to negate an opinion that maintains that when the witnesses sign the deed of sale, they effect the transfer of the property. It is not clear, however, that the Rambam accepts that view.

A receipt that a promissory note was paid.

For this situation can certainly not cause the borrower a loss.

A receipt stating that she received the money due her by virtue of her ketubah.

For the husband cannot suffer a loss under these circumstances.

For the decision whether or not to divorce is solely the man’s. The woman has no say in the matter whatsoever according to Scriptural and Talmudic law.

This refers to an agreement regarding the commitments of the groom’s and bride’s families to provide money and objects for the new couple. Since the agreement mentions the obligations of both families, each of the parties involved must be present.
The Tur (Even HaEzer 51) quotes opinions that state that even when both parties agree, a formal legal document should not be composed, because the commitment is not powerful enough to establish a lien on property sold to others. Significantly, he maintains that the Rambam would also share this view.
These statements are dependent upon the Rambam’s previous rulings (see Hilchot Zechiyah UMatanah 6:17). There the Rambam states that these commitments “are not appropriate to be written down.” The Maggid Mishneh, however, interprets those statements to mean that a record of these commitments does not - and cannot - have the power of a formal legal document and establish a lien binding on properties that have been sold.

This refers to the ketubah, the document that mentions the husband’s obligations to his wife and her obligations to him.

Since these agreements involve two sides, neither can have the agreement drawn up without the other.

When two litigants have a dispute and they choose not to bring their case before an established court, they may make up a court in the following manner. Each one chooses a judge, and those two judges choose the third judge. Since the choice of the judges is a matter concerning which both sides agree, and each person is allowed to change his selection until the document is composed, both must be present when the document recording the choice of the judges is composed [Shulchan Aruch (Choshen Mishpat 13:2)].

A scribe records the claims each of the litigants offered before the court of law. Each of the litigants has the right to see this record and each must consent to the text of the document [Shulchan Aruch (Choshen Mishpat 13:3)].

The general principle is that the person who receives the greater benefit from the matter must pay for the composition of the legal document.

For he desires to receive the loan, and that would not be possible if a promissory note had not been composed.

For he desires to purchase the property, and the deed of sale serves as a record that it becomes his own. Hilchot Mechirah 30:1 states that this law applies even when a person sells his field because it is of inferior quality. Although in this instance the seller is happy to rid himself of the property, our Sages maintained a uniform practice.

According to Scriptural Law, the husband should is responsible for paying for the divorce. Nevertheless, our Sages feared that a husband might lack the financial resources to have the bill of divorce composed and cause the woman to wait unnecessarily (Bava Batra 168a).

For the purpose of this document is to make sure that they receive their share of the crops or their wages from the owner of the field or the employer.

For these documents are not to the advantage of either litigant over the other.

Even in the present age, when it has been common to use family names, according to Torah law, a person is identified in a legal document using his or her father’s name.
The commentaries mention that the Rambam’s words could be interpreted as teaching that the witnesses must recognize the name of the principal’s father, and it is not sufficient for the principal to give them that information themselves. This, however, is not the common practice.

I.e., we fear that two people will deceitfully have a legal document drawn up stating an obligation that another person undertakes in favor of still another, and later uses that legal document to expropriate money or property from that person. The legal document will appear valid, for the signatures of the witnesses will be genuine. It will, nevertheless, be a forgery, because the people whose names are stated in the document will never have undertaken the obligation.
The Maggid Mishneh questions this ruling, stating that with regard to a promissory note, seemingly all that is necessary is to know the identity of the borrower. And with regard to deeds of sale, all that is necessary is to know the identity of the seller. He explains that the Rambam’s statements apply in an instance when the document is not affirmed by a kinyan. This interpretation is accepted by the Shulchan Aruch (Choshen Mishpat 49:2). The Perishah (Choshen Mishpat 49), however, differs with the Maggid Mishneh and justifies the simple interpretation of the Rambam’s words.

Formal testimony is not necessary to establish a person’s identity. It is sufficient that a woman or a minor identify the person (Hilchot Yibbum VaChalitzah 4:31).

It is highly possible that a person trying to assume a false identity would be discovered within a 30-day period. Hence, if a person has been able to maintain an identity for this time, we assume that it is true.

There would always be some reason to suspect a person’s identity.

Pointing to a person who is accompanying him.

Witnesses who testify to that effect.

I.e., he waits 30 days. At present, when photo ID’s and the like are common, these are accepted as proof of a person’s identity with regard to most financial transactions.

The laws governing situations when there are in fact two people in the city with the same name are mentioned in Halachah 8.
The Maggid Mishneh quotes the Ramban, who asks: “Why do we not suspect that the person came from another city where there was another person with that name? Thus, the witnesses could have signed a legal document in the proper manner, but it would be used deceitfully.”
The Ramban answers that we do not harbor such suspicions, because if so, there would be no limit to the matter. For surely, somewhere throughout the world, there is another person with that same name. Hence, we do not suspect that someone will come from another city to try to perpetrate deception. (Kin’ at Eliyahu questions whether this logic would apply in the present age as well. For now communication and travel between cities and countries are more common, and we have seen many instances of people from one city trying to defraud others.)

Since, as stated in Halachah 3, the witnesses must know the identity of the principals before they sign a legal document, we assume that the people whose names are mentioned within the legal document were in fact the ones involved in the transaction.

For this reason, if the witnesses who signed the promissory note testify later that the borrower was a minor, their testimony is not acceptable [Shulchan Aruch (Choshen Mishpat 46:38)].

See Halachah 7.

See the following halachah.

I.e., the witnesses. See Sefer Me’irat Einayim 45:7, which cites views that state that the punishment should not be meted out to the witnesses, but rather to the judge who had them sign the promissory note.

This is the standard punishment given for violating a Rabbinic ordinance.

Gittin 19b explains that such a practice was adopted in order to enable witnesses who were unable to write their signatures to sign a bill of divorce. (See the rulings of Hilchot Gerushin 1:23.) Nevertheless, that passage explicitly states that this leniency is granted only to enable a woman to receive a bill of divorce and thus remarry, but not with regard to other legal documents.
There is, however, a difference of opinion among the Rabbis with regard to the Rambam’s ruling that the promissory note is unacceptable. The Rashba maintains that although it is forbidden to sign a legal document other than a bill of divorce in this manner, the document is not disqualified. The Shulchan Aruch (Choshen Mishpat 45:4) cites the Rambam’s view, while the Tur and the Ramah mention the other opinion.

Sefer Me’irat Einayim 45:3 states that the judge saw the matter recorded in the legal document.

The Ra’avad interprets this as referring to a document recording a decision rendered by the court. The Maggid Mishneh infers that the Ra’avad is restricting this leniency to such documents. Hence, he takes issue with that view, maintaining that a head of a court may rely on his scribes with regard to other legal documents as well.

Implied is that the leniency is restricted to that scribe and does not include other people who might read before the judge, or that scribe and other judges (Gittin 19b).

I.e., if it is discovered that the scribe lied, he will lose his position and his reputation.

The Rambam’s decision is quoted by the Shulchan Aruch (Choshen Mishpat 45:2). The Tur and the Ramah cite opinions that maintain that if two people read a legal document for a witness (and translate it for him if he does not understand its contents), he may sign on it. For we assume that two people wiii not lie.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 49:7) state that this applies only with regard to promissory notes affirmed by a kinyan. The Shulchan Aruch explains the rationale: When one of the persons named Yosef the son of Shimon produces a promissory note with the other’s name on it, the other can claim: “That promissory note was mine. It records the debt you owed me. I returned it to you after you paid me.”
The Ramah explains that this rationale applies whether the promissory was affirmed by a kinyan or not [and thus, he questions the approach of the Shulchan Aruch (op. cit.)]. He explains another reason that is relevant only when a promissory note was not affirmed by a kinyan: The promissory note can be written for the borrower, even though he is not accompanied by the lender. Yosef, the son of Shimon, who is being sued, can claim: “I never borrowed money from him. The person suing had the promissory note composed in order to borrow money.”

Because the defendant can always claim that he is not the person who undertook the debt.

The Maggid Mishneh quotes opinions that maintain that even when the witnesses come, the document is not considered a loan supported by a promissory note, because the promissory note itself does not have the legal power to cause property to be expropriated. The Maggid Mishneh rejects this argument, by stating that if the witnesses who signed the promissory note themselves testify concerning it, it has the strength of a promissory note, because it could be amended by them to include the third generation or another identifying factor. If, however, other witnesses come and testify concerning the loan, it is not considered a loan backed by a promissory note. This understanding is adopted by the ShuZchan Aruch (loc. cit.).

This applies only in a situation where the two woman also have identical names.

Because whenever either of them sues for payment, the debtor can produce the receipt.
The Maggid Mishneh quotes opinions that maintain that the two creditors can give each other power of attorney and in this way collect one of the debts. He explains, however, that if the debtor can claim that the receipt was written for both creditors, his claim is accepted. Moreover, the fact that the Talmud does not mention the issue implies that power of attorney is not acceptable. Note, however, the ShuZchan Aruch (loc. cit.).

I.e., they should mention their grandfather’s name in the legal document. For example, the person would describe himself as Yosef, the son of Shimon, the son of Ya’akov. In the present age, the inclusion of family names in legal documents also serves this purpose.

A description of the person, that he is tall or fat (Siftei Cohen 49:12).

Whether they are priests, Levites, or Israelites.

I.e., they should mention the names of their great-grandparents, and their great, great-grandparents, etc. until they find a generation in which their ancestors did not use the same name.
When discussing this law, the Ramah (loc. cit.) notes that the above applies only with regard to two people with the same name who come from the same city. He questions what to do when the two people with the same name come from different cities. Such concepts are particularly relevant today when the advances in travel and communications have made the world into a global village.

When quoting this law, the ShuZchan Aruch (Choshen Mishpat 50:1) emphasizes that the promissory note must be signed by witnesses.

I.e., instead of asking me to give you a loan, you should have asked that I repay the debt.
The Maggid Mishneh quotes opinions that state that this law does not apply in places where a loan is given before a promissory note is composed (see the following halachah), and the due date for the first loan has passed. For in such a situation, the recipient could certainly say: “I am accepting the money as payment of the debt you owe me.” The fact that he did not do so indicates that he is not owed any money. The Maggid Mishneh states, however, that we can understand why this law is omitted, because it is very uncommon to give a loan before a promissory note is composed.
The Tur and the Shulchan Aruch (Choshen Mishpat 85:3) also mention the opinion of the Ramah, who states that if the due date of one of the loans precedes that of the other, the person who was required to pay first can refuse to pay the other, claiming that instead of borrowing, he should have collected his debt. Nevertheless, they also quote the approach mentioned by the Maggid Mishneh. The Siftei Cohen 85:7,10-11 sharply rejects the Ramah’s understanding, and furthermore, maintains that the Rambam’s words should be understood simply, without the Maggid Mishneh’s emendation. Instead, in all situations, if there is some benefit in the expropriation of the debt and the transfer of the property, we carry out the court procedures.

If, however, there is a difference in the due dates between the two debts, there is an advantage to one over the other, and hence, the court deals with the matter.

I.e., if the standard court procedure was followed, the property each one possesses would be expropriated from him and given to the other. Since the properties are of equal value, no one stands to gain from such a transfer. Hence, the court does not become involved.

As is due a creditor; see Chapter 19, Halachah 1.

Since this is the only property the debtor possesses, the creditor has no alternative.
The Maggid Mishneh mentions that there is a difference of opinion among the Sages in Ketubot 110a. Rav Sheshet differs with the opinion quoted here by the Rambam, because once the one debtor expropriates the property of intermediate quality from the other, he will possess property of intermediate quality that can be expropriated from him. Thus, the other person will receive his property again in return.
Rav Nachman differs and maintains that for that person, the property of intermediate quality will be considered to be property of superior quality (for the only other property he possesses is of inferior quality). Hence, it should not be expropriated from him.
The Maggid Mishneh notes that the Rambam’s ruling in Chapter 19, Halachah 4, appears to follow Rav Sheshet’s opinion. He suggests that perhaps the Rambam’s text of Ketubot had a slightly different reading.

The Siftei Cohen 85:1 states that this law applies only when the authenticity of the deed of sale has been verified.

This refers to an instance when the date of the deed of sale is after the due date of the promissory note (Maggid Mishneh).

The Shulchan Aruch (Choshen Mishpat 85:1) quotes different opinions regarding the claim made by the alleged borrower. The Tur maintains that if the borrower claims that he paid the debt and was given a receipt, but lost it, his claim is accepted. If, however, he claims that the promissory note is a forgery, and the alleged lender is able to verify its authenticity, the promissory note is still viable. Rashi and Rabbenu Nissim, however, maintain that his word is accepted even when he makes such a claim. (Note, however, the Siftei Cohen 85:4 who rejects this interpretation of the position of Rashi and Rabbenu Nissim.)

I.e., and not composed the deed of sale until he was paid again.

In this way, if the purchaser claimed bankruptcy, the seller could seek to collect his debt from the property he sold the purchaser. There would be no necessity to seek to find other properties belonging to him.