Malveh veLoveh - Chapter 27

E. g., a document written in Hebrew, but in English characters.

I.e., it is written with ink that cannot easily be wiped out. Thus, if someone rubs out the writing and add anything to the document, the change will be noticeable.

See Chapter 24, Halachah 5.

For there is no need that a legal document be written in Hebrew.

As explained by the Maggid Mishneh and Sefer Me'irat Einayim 68:3, there are two types of legal documents:
a) documents that resemble bills of divorce, in which the document itself brings about the activity mentioned within it. For example, with regard to a bill of divorce, it is the transfer of that document that effects the divorce.
b) documents that serve merely as a legal record. For example, with regard to a deed of purchase, the transfer of the property is brought about through other kinyanim, and the deed is merely a record that such kinyanim were indeed carried out.
With regard to the first category of legal documents, since they effect a change of legal status, the signatories to the document must be Jews. For only Jews can bring about such changes of status. With regard to the second category, since all that is required is a legal record, it is not necessary that the signatories be Jews. As long as we are certain that the record is honest - hence, all the conditions the Rambam mentions - the document is acceptable.
Other authorities, including the Ramban, the Rashba, the Baal Ha’Ittur and Rabbenu Asher, maintain that all legal documents certified by an honest gentile legal authority are acceptable. The Rambam’s view is quoted by the Shulchan Aruch (Choshen Mishpat 68:1), while the other position is cited by the Tur and the Ramah.

I.e., in the presence of the witnesses.

We do not automatically assume this to be the case (Maggid Mishneh).
As mentioned above, Rabbenu Asher has a different conception of this issue. According to his view, the entire process, including the signing of the legal document, is carried out in the presence of the gentile legal authorities. As such, he maintains that it is unlikely that there will be any deception or falsehood involved.

If, however, they are composed with all the above qualifications, they are acceptable. Hence, in such a situation, the borrower’s word is not accepted if he claims to have repaid the debt. Such a document is not, however, used to expropriate property from purchasers, as the Rambam explains at the conclusion of the halachah.

The standard published texts of the Mishneh Torah also state “promissory notes,” butbased on a comparison to the preceding paragraph and the text in the authentic manuscripts and early printings - this appears to be a printing error.

This involves a situation where the waiver was not made orally beforehand. If that were the case, the legal document would not be necessary.

The rationale is that these legal documents are not merely records of transactions that took place, but they themselves formalize the matter. And the signing of a document by gentiles is not an acceptable kinyan.

There is a responsum from Rabbenu Yitzchak Alfasi - the teacher of the Rambam’s master, Rav Yosef MiGash - that reflects this view.

For it is the transfer of the money that brings about the kinyan.

The Ra’avad agrees with the Rambam’s master, explaining that since a promissory note signed by gentiles may not be used to expropriate property from purchasers, it is comparable to a handwritten statement of obligation signed by the debtor, which, as the Rambam states in Chapter 11, Halachah 3, does not convey any greater strength than a mere verbal commitment.
The Maggid Mishneh explains the opinion of the Rambam’s masters as follows: The actual transfer of the money establishes a loan, not the promissory note. Nevertheless, the promissory note gives the lender far greater power than he would have without it. Even if a borrower admits taking a loan, his word is accepted if he says that he repaid it. If the lender has a promissory note, by contrast, his word is not accepted. Hence, the Rambam’s masters maintain that gentile witnesses do not possess the legal power to convey this status to a legal document.

Significantly, in his Commentary on the Mishnah (Gittin 1:7, the source for this halachah), the Rambam mentions only that deeds of sale prepared by gentile authorities are acceptable. In that source, he does not mention promissory notes, apparently indicating that he originally followed the approach taught by his teachers.

The Maggid Mishneh explains that the Rambam maintains that since the lien is established through the transfer of the money, the borrower should have asked for the promissory note to be returned if he paid the debt. The Shulchan Aruch (loc. cit.) cites the Rambam’s view. Note, however, the comments of the Siftei Cohen 68:3.

We do not rely on the word of the gentiles as legal testimony. On the other hand, since the word of one can be used to counterbalance the other, we assume that they are telling the truth.

When a legal document is signed by Jewish witnesses, we assume that word of it will spread throughout the Jewish community, and all potential purchasers will be able to take note of the matter. When, by contrast, the legal process is carried out by gentile witnesses, it is not obvious that Jews will know of these matters. Hence, it is not appropriate for the lien to be extended to property that was sold.

The rationale is that since the Jewish witnesses saw the transfer of the legal document, it is acceptable (Gittin 10b, 11a).
Rabbenu Asher does not accept this ruling and maintains that since gentile witnesses signed the document outside the presence of their legal authorities, the document is considered a forgery and is never acceptable. The Shulchan Aruch (Choshen Mishpat 68:2) quotes the Rambam’s opinion. However, it also quotes the opinion of the Remo, who stipulates that the gentiles’ nationality must be obvious from their names so that a person reading the document will not err and suppose that the gentiles who signed the document are in fact Jews.
The Kessef Mishneh notes that a legal document that is signed by Jewish witnesses who are disqualified - because of a family connection to the principals or for other reasons - that was transferred in the presence of acceptable witnesses is invalidated. He therefore questions why this document signed by gentiles is acceptable. He explains that when a legal document is signed by unacceptable Jewish witnesses, one might err and consider it valid even when it was not transferred in the presence of acceptable Jewish witnesses. When, by contrast, a legal document is signed by gentile witnesses, it will be obvious that it is not valid except when it was transferred in the presence of acceptable Jewish witnesses.
He does note that this explanation is not evident from the Rambam’s wording. He explains that it is possible that leniency was granted, because all that are involved is financial matters and not any of the Torah’s prohibitions.

I.e., the points mentioned in this and the ensuing halachot.

I.e., the information included in the last line is ignored when considering the intent of the document. Nevertheless, the document is not disqualified, and the other information is considered as having been stated in a legal document [Maggid Mishneh, in the name of the Ramban; Shulchan Aruch (Choshen Mishpat 44:1)]. The Tur and the Ramah, however, quote opinions that disqualify the legal document entirely.

I.e., we assume that after the legal document was composed and signed, a dishonest person might come and add a line between the signature of the witnesses and the legal document. To prevent this from happening, we say that the contents of the last line are of no consequence. In order to enable the contents of the last line of the actual text to be taken into consideration, our Sages ordained that after a document is completed, an extra line be written restating the matter.
The Shulchan Aruch (loc. cit.:4) quotes the ruling of Rabbenu Asher that states that if the legal document concludes hakol sharir v’kayam, “Everything is affirmed and valid,” we can take in consideration the content of the previous line. Since it has become customary to write sharir v’kayam at the end of every document, everything stated before that is part of the legal document.

Bava Batra 16lb states that our Sages feared that a person might cut off the original document that the witnesses signed and write anything else that he desired above their signatures.
Even if the witnesses state that nothing was added to the legal document, it is unacceptable, because it was not written according to the norms of standard documents (Rashba).
The Shulchan Aruch (Choshen Mishpat 45:7) quotes Rabbenu Yonah, who states that although such a legal document cannot be used to expropriate property that has been sold, nor can it be used against a borrower who claims to have paid the debt, it still has some value to the lender. If the borrower denies ever taking the loan, such a promissory note can be used to obligate him to pay.

For there is not enough space for him to write.

The intent is not the scribe and the witnesses who signed this particular document, but scribes and witnesses at large. Thus, with the term witnesses, the Rambam means ordinary people, individuals who are not trained to write professionally (Maggid Mishneh).

A scribe is trained to write, and his penmanship is more controlled than that of the witnesses. They, by contrast, will write more carelessly and require more space.

Whose top protrudes above the line.

Whose end protrudes below the line. Thus, we are speaking about room to write two lines and leave three spaces in between them: one for the protrusion above the line, one for the protrusion below the line, and one for the space between the two [Shulchan Aruch (Choshen Mishpat 45:9)].

These individuals must explicitly have the intention that they are signing not as witnesses, but merely to fill in the space. If they sign as witnesses, they disqualify the legal document. See Shulchan Aruch (Choshen Mishpat 45:12).

I.e., these individuals signed the document to fill in the empty space.

There is no possibility of the document being cut off and a new one being composed above the signatures of the witnesses.
The Maggid Mishneh quotes a difference of opinion among the commentaries when the others must sign to fill up the space. The Rashba states that the document must already be filled with the signatures before it is given to the purchaser or the lender. For otherwise, they are transferring an unacceptable legal document. Alternatively, it may be taken back from the lender or the purchaser, filled with other signatures and returned to him. In that instance, the document takes effect from the time it is returned to the lender or the purchaser.
The Ra’avad, by contrast, states that the purchaser or lender can have these signatures added on his own before he brings the document to court. The Shulchan Aruch (Choshen Mishpat 45:14) quotes both of these opinions without favoring one over the other. Both the Maggid Mishneh and the Shulchan Aruch (loc. cit.:15) emphasize that there is room for leniency with regard to legal documents that were affirmed with a kinyan. In certain situations, they can be corrected later, for the kinyan establishes the contractual agreement.

I.e., they acknowledged that the lines were added there with the full consent of both principals.

If the authenticity of the signatures of the witnesses is verified, there is no question that there was any forgery on that one line.

And yet they had no knowledge whatsoever of this second document.

As the Rambam proceeds to explain, we fear that the signatures of the witnesses below are genuine, but they had not signed on this legal document, but rather on another document that was cut off. The signatures of the witnesses on the same line as the document, by contrast, we fear are forgeries. Hence, we require the bearer of the legal document to validate those signatures for the document to be acceptable.

For which the witnesses below had signed.

I.e., the judges should sign on the margin to the right or the left of the legal document. In their statement, they must emphasize that the legal document is to their right or to their left.

Here also when doing so, they state that the signatures of the witnesses to the document on the other side of the page are authentic. Otherwise, a new document could be written above their signatures.

I.e. the court’s statement. The document itself, by contrast, is still valid (Maggid Mishneh).

The Maggid Mishneh emphasizes that lines of ink are acceptable. If, however, the entire portion was covered with ink, it is not acceptable. We fear that a legal document had been written there that the witnesses signed. A person then blotted that document out and composed a new one above it that the witnesses never saw.

There is no fear that a false document will be written in the empty space, because it has been filled.

As we suspected with regard to the signature of witnesses. See Halachah 4.
The Rashba does not accept the Rambam’s ruling and maintains that even when judges position their signatures far from the document, that validation cannot be corrected. In his Beit Yosef, Rav Yosef Karo maintains that the Rashba’s position is also shared by Rabbenu Yitzchak Alfasi and Rabbenu Asher. Hence, he mentions both perspectives in his Shulchan Aruch (Choshen Mishpat 46:32). Sefer Me’irat Einayim 46:80 and the Siftei Cohen 46:88 do not accept that interpretation of the positions of Rabbenu Yitzchak Alfasi and Rabbenu Asher. And the Siftei Cohen argues both forcefully and at length in favor of the Rambam’s view.

I.e., when a portion of a document is written on a surface where there have been erasures, before completing the document and writing sharir v’kayam, the scribe must mention all the words that were written on the erased surface. In this way, the witnesses are attesting to the authenticity of the document as it appears before them.

The Maggid Mishneh notes that this addition teaches an important concept. With regard to words that are attached between the lines, the Tosefta (Bava Batra 10:5) states that if they are not validated, they are not considered, but the document as a whole is not disqualified. The same concept, the Maggid Mishneh postulates, applies when a word is written on a surface that was erased, and the word is not validated. That word is not considered, but the document as a whole is accepted.
The Tur (Choshen Mishpat 44) differs and maintains that it is possible that the person in possession of the legal document erased a point that ran contrary to his own interests and wrote something else instead. If the legal document was validated as is, the interests of the other party could thus be impinged. The Shulchan Aruch (Choshen Mishpat 44:5) quotes the position of the Maggid Mishneh, while the Ramah cites the Tur’s view.

I.e., the conclusion of the document where it is customary to state hakol sharir v’kayam, “Everything is affirmed and valid.”

I.e., we fear that the document originally ended before the place it ends at present. The person in possession of the document erased the words sharir v’kayam, added a clause that is to his benefit, and then wrote sharir v’kayam again. Thus, the signature of the witnesses will be genuine, but the document will have been falsified.
The Rambam’s wording implies that sharir v’kayam is written after the scribe mentions all the words written on surfaces where there are erasures. The Tur (Choshen Mishpat 44), by contrast, states that the scribe can mention the erasures after sharir v’kayam. See also the Maggid Mishneh and Sefer Me’irat Einayim 44:7, which mention this issue.

Thus, the court will be able to see that the surface on which the document itself was written has been erased twice, and the surface on which the witnesses signed was erased only once. Hence, they will disqualify the document.

There is a slight difficulty with this situation, for seemingly the witnesses would realize that the document was erased only once, and the place where they signed was erased twice. Note Sefer Me’irat Einayim 45:43, which offers two resolutions.

In such a situation, it is likely that they would realize that the document had been erased only once, and the place where they signed twice.

I.e., on the same piece of paper, but on a portion on which there had not been erasures previously.

I.e., the judges [Shulchan Aruch (Choshen Mishpat 46:33)].

I.e., because of the suspicion explained by the Rambam, we do not accept the previous validation of the document and require that the signatures of the witnesses be validated again.

See Halachah 7.

Sejer Me’irat Einayim 46:89 states that we do not suspect that the person erased the entire document and the signature of the witnesses, because such a large erasure would be distinguishable. See also Siftei Cohen 46:81.

To negate that supposition, the signatures of the witnesses that are in question must be validated.
The Shulchan Aruch (Choshen Mishpat 46:33) also quotes the opinions of Rabbenu Yitzchak Alfasi and Rabbenu Asher, who maintain that it is sufficient to validate the signature of the judges. The Shulchan Aruch does not state which of these views he favors.

In the future.

Thus, it will be possible to verify the authenticity of the signatures, and yet, the witnesses will never have seen the document written above their signatures.

Thus, the document and the signatures of the witnesses will look uniform. As stated in Halachah 9, such a document would be validated by the court.

For in this instance, the document could not be erased and another substituted in its place.

The Shulchan Aruch (Choshen Mishpat 45:21) rules that this is not merely a suggestion. If this statement is written above or below the signatures of the witnesses, the document is not acceptable.

If the statement were included after the signatures of the witnesses, it could be cut off and then the document could be erased. If it were placed above the signatures of the witnesses, it could be erased together with the entire document (Sefer Me'irat Einayim 45:46).

Since the signatures of the witnesses can be validated, the document will look authentic.

As stated in Halachah 9.

These laws are derived from the conduct of Abbaye, who, as Bava Batra 167a relates, carefully scrutinized two legal documents brought before him and discovered each of these types of forgery.

When quoting this law, the Tur and the Shulchan Aruch (Choshen Mishpat 42:3) state that for this reason, a scribe should compose a legal document using an ordered and even script.

The Ramah (Choshen Mishpat 42:4) states that one may write the masculine sheloshah, because that word ends in a hei. To forge the document, one would have both to erase and to rewrite, and such changes would be noticeable.

This is possible by adding two letters, a yud and a mem. The fact that the text of the document will then project slightly into the margin is not significant.
The Shulchan Aruch (Choshen Mishpat 42:4) adds that one should not write the numbers as letters - e.g., a bet for 2 - for a minor alteration can cause it to appear as a chaf, numerically equivalent to 20, or a reish, numerically equivalent to 200.

Rewriting either a portion of the text or the text in its entirety.

If necessary - i.e., if when the document is written a second time, a number comes out at the end of the line - the concepts should be restated again until all the numbers come out in the middle of the line (Sefer Me'irat Einayim 42:8).

100 zuz.

We assume that the person composing the document changed his mind in the middle and the final sum mentioned is what he agreed upon (Sefer Me’irat Einayim 42:11).
The Hagahot Maaimoniot [and his words are quoted by the Shulchan Aruch (Choshen Mishpat 42:5)] states that if the differences between the two portions of the document are not conflicting and can be easily resolved, we accept them both, for it is unlikely that a person composing a legal document would contradict himself.

For, as stated in Halachah 16, the bearer of a promissory note is always placed at a disadvantage, for he is trying to expropriate property from a colleague. In this instance as well, seemingly he should be given the lesser of the two amounts.

For in this instance, the two amounts are interrelated. There is obviously an error, and so, because of the doubt that is generated, the lender is given the lesser amount.

Because these are his final statements.
Together with the Rambam’s view, the Shulchan Aruch (Choshen Mishpat 42:5) also quotes the opinion of the Tur that maintains that when the upper portion of the document gives a detailed account of moneys owed, and the lower portion just mentions a total, if there is a discrepancy between the two, we follow the upper portion. We assume that the person erred while tallying the total.

Instead, the document is disqualified, because of the rubbed-out portion [Shulchan Aruch (Choshen Mishpat 42:6)].
Sefer Me’irat Einayim 42:17 writes that we disqualify a document when two letters have been rubbed out only when it is in the hands of a third party - e.g., a third party has a document whose upper portion states Chanani and its lower portion states Chan, and he is unsure whether to give the document to Chanani or Chan. When, however, the document is in the possession of either Chan or Chanani, they can use it to expropriate property.

An acronym for the words se’ah p’lag, meaning a se’ah and a half (the interpretation of Bava Batra 165b advanced by Rabbenu Yitzchak Alfasi and Rav Yosef MiGash).

An acronym for kav p’lag, a kav and a half (ibid.), a much smaller measure.

A kuf without its left leg is somewhat similar to a samech. In this instance, since there is a way that we can explain the contradiction between the two portions of the document, we accept that explanation rather than follow the amount stated in the lower portion of the document.
The intent is not that we expect a fly to rub out the ink of a letter and not to extend it, but that since there is a doubt, we grant the bearer of the promissory note no more than the lesser amount (Sefer Me’irat Einayim 42:21).

The rationale is, as stated in the following halachah, that since there is a doubt involved, and the bearer of the legal document seeks to expropriate property, he must prove his claim beyond any shadow of a doubt.
Note the conclusion of the following halachah, which states that in all situations where this general principle is applied, if the bearer of the promissory seizes movable property belonging to the borrower - since he is now in possession - he is given the benefit of the doubt.

A coin of the Talmudic period. The Rambam appears to share the opinion of Rabbenu Chanan’el and the Rashbam (Bava Batra 167a) that an isteira was equivalent to half a zuz. Significantly, Rav Yosef MiGash, the Rambam’s teacher, maintained that it was worth two zuz.

This applies with regard to questions concerning the intent of the promissory note. When, however, there is a question regarding the validity of the promissory note, we proceed on the assumption that it was written in an acceptable manner (Maggid Mishneh, gloss on Chapter 23, Halachah 4).

A copper coin of minimal value, the least valuable coin of the Talmudic era.

A zuz was worth 192 p’rutot. Instead of writing 600 p’rutot, the scribe would have written 3 zuz and 24 p’rutot. In contrast, since the value of an isteira is comparable to that of a zuz, it is likely to be considered independently.

I.e., the prevailing business practices within a community, whether or not they have their source in the Torah’s guidelines [Shulchan Aruch (Choshen Mishpat 42:15)].

M’ie is the plural of me’ah. Although usually, that term is used to refer to a silver coin worth one six of a zuz, in this instance, the intent is 100 copper m’ie. A copper me’ah is equal in value to a p’rutah.

I.e., we do not know if the intent is 100 isteira or 100 m'ie.

We assume that the 100 refers to m’ie, for that is the smaller sum. An isteira is worth 96 p’rutot. Thus, we can assume that the meaning of the promissory note was “an isteira, that is worth 100 m’ie.” For the value of the p’rutot were rounded off slightly.

I.e., since the money is in the possession of the borrower, the bearer of the promissory note cannot expropriate it unless he proves his claim. If not, “possession is nine tenths of the law,” and the borrower is allowed to retain possession of the money.

This applies when the person seizes movable property or money. If, however, he seizes landed property, he is forced to return it, for the above rationale does not apply (Siftei Cohen 42:16).

There are some opinions that maintain that this law applies only when there are no witnesses that the person seized the property. Their rationale is that in such a situation, we accept the bearer’s claim, because of the principle of miggo - i.e., had he desired, he could have denied taking the money entirely. Hence, when he says that he took it because it is due him, the borrower must prove that this is not so.
The Maggid Mishneh, however, states that this law applies even when the bearer of the promissory note seized the property in the presence of witnesses. He explains that, in the previous instance, the reason that the borrower was allowed to keep the money is that he was in possession. For that very same reason, should the bearer of the promissory note seizes possession, the borrower must prove the legitimacy of his claim. For in this situation, the borrower is considered as expropriating the money from the bearer of the note, who is now in possession.

For this was the smallest golden coin of the Talmudic era.

Since it uses the plural, we assume that at least two coins were involved.

We interpret the wording as meaning “the value in gold for two dinarim.” Since those dinarim are not specified as being of gold, we assume they were of silver. One golden dinar was worth 25 silver dinarim.
The Ramah (Choshen Mishpat 42:13) states that in all instances, the bearer of the promissory note is granted the lesser amount.