Edut - Chapter 6

Chapter 3, Halachah 4.

According to Scriptural Law, witnesses who sign on a legal document are considered as if they gave testimony in court. Nevertheless, were we not to require the verification of the signatures of witnesses, there is the possibility that there would be forgeries and no one would rely on a legal document (Lechem Mishneh).
The Radbaz (in his gloss to Chapter 7, Halachah 1) questions how it’s possible that Scriptural Law would accept any signed legal document as valid. That would leave the possibility open for forgeries. He explains that the Torah does not suspect that a Jew will ever lie. It is only after our people became assimilated among the gentiles and learned dishonesty that there arose a need for such safeguards.

According to law, if only two judges presided over the verification of the authenticity of a legal document, their actions are of no consequence. Nevertheless, it has become customary to allow a leading local Rabbinic authority to verify the authenticity of legal documents alone [Ramah (Choshen Mishpat 46:4)].

I.e., we _do not require the unique semichah necessary to take part in a formal court. Since the verification of the authenticity of a legal document is a Rabbinic requirement, our Sages sanctioned even a court that is acceptable only by Rabbinic decree to perform this process (Ketubot 28a).

I.e., since it is considered as a judgment.

Hilchot Sanhedrin 3:4. The Sefer Me’irat Einayim 46:6 states that if both litigants agree, the verification may be made at night.

In this and the previous instance, since the judges have firsthand knowledge of the witnesses’ signature, there is no need for further testimony.
There is a debate among the commentaries with regard to the rationale for this concept. Some explain that with regard to questions of Rabbinic Law (and the verification of the authenticity of the signatures of the witnesses is a question of Rabbinic Law), a witness can serve as a judge. Hence after seeing the signatures of the witnesses, the judges can serve as both witnesses and judges.
Others explain that the rationale for this law is that, when testimony is not required, as in this instance, the judges can act on their knowledge without the necessity for testimony.

In this instance, the witnesses are testifying that the event described in the legal document took place; we are not validating their signatures. What in fact the witnesses are saying is “By seeing the document and my signature, I recall that this event transpired” (Lechem Mishneh, based on Chapter 8, Halachah 1; Sefer Me’irat Einayim 46:15).
Accordingly, there is no necessity for another person to join the witness and testify concerning his signature. See also the notes to Chapter 7, Halachah 4. See also the Tur (Choshen Mishpat 46) who states that if the witnesses do not remember that the event took place, but can identify their signatures, each of them together with another witness may validate their signatures.

Based on Chapter 3, Halachah 6, it appears that this principle applies even if the witnesses are in the city and do not come to court for other reasons (Kessef Mishneh). The Rambam was mentioning the more likely situation. For if the witnesses were present, it would be probable that they would appear in court themselves. Moreover, it is preferable that if the witnesses are available, they testify in court themselves [Bayit Chadash (Choshen Mishpat 46)].

The Ramah (Choshen Mishpat 46:7) quotes a responsa of the Rivosh (Responsum 382) who states that the witnesses do not have to testify in the presence of the judges. It is sufficient for them to write a document acknowledging that they recognize the signatures in the original legal document.

Which had already been validated as authentic by the court [Shulchan Aruch (Choshen Mishpat 46:7)]. See also the following halachah.

For once a person benefits from property for three years, he has a chazzakah on that land; i.e., it is presumed that he is the legal owner unless a claimant presents proof to the contrary (Hilchot Toein ViNitan, Ch. 11).

A woman’s ante-nuptial contract. These ketubot must belong to women who are presently married. The Tur ((Choshen Mishpat 46) adds that they must have been married for at least three years.

Rashi (Ketubot 20a) gives a different rationale: Perhaps the possessor of the documents looked carefully at the signatures of the witnesses and learned to forge these signatures. According to this rationale, even if the signatures on one of the legal documents has been validated by a court of law, this suspicion still applies (Kessef Mishneh). The Rambam, by contrast, would not cast suspicion over such a legal document. See the Ramah (Choshen Mishpat 46:7) who quotes both views.

For example, a promissory note which the debtor challenged, claiming it to be a forgery. To collect his debt, the creditor had the authenticity of the signatures to that promissory note verified. Obviously, the judges presiding over that case were careful in verifying the authenticity of the signatures. Hence that document can be used as a standard from which signatures on other documents can be verified.

When the signatures to those documents were not verified by the court.
The Ra’avad had a different version of Ketubot 20a (the standard published text follows the Rambam’s version). According to his version, two documents are always necessary even if they have been validated by a court of law. The Shulchan Aruch (Choshen Mishpat 46:7) rules according to the Rambam’s view. The Ramah adds that even when the debtor did not challenge the authenticity of a promissory note, if for whatever reason, the creditor had the authenticity of the witnesses’ signatures verified, that document alone may be used to verify the witnesses’ signatures. The Sefer Me’irat Einayim 46:23 and the Siftei Cohen 46:25 state that it is likely that the Rambam would also accept this ruling.

The Sefer Me’irat Einayim 46:27 explains that although we do not suspect the court erred, by stating how the court validated the signatures we give the other litigant the opportunity to argue his claim if he maintains that the document is a forgery. The Siftei Cohen 46:29, however, states that it is not customary to state how the document was validated.

Bava Batra 138b, the source for the Rambam’s ruling, states that if witnesses compose a record of a dying man’s statements, we suspect that they transcribed his words without checking the validity of his claims. Hence we investigate the matter before accepting their statements.

After validating the document, but before signing it.

In which case, the validation is not binding, as implied by Halachah 1.

And by stating “a court,” they are implying that three judges were present.

The Shulchan Aruch (Choshen Mishpat 46:29) quotes the Rambam’s opinion, but also the opinion of Rabbenu Asher who states that if the judges write that they sat in session with three judges, it is not necessary to mention that one no longer exists.

See Chapter 10 which explains the disqualification of witnesses because of the violation of transgressions. Similar principles apply with regard to a judge.

The Sefer Me’irat Einayim 46:61 states that, before they sign on the legal document, the other two judges may testify that the third judge has repented and is fit to serve in that capacity.

Before accepting the appointment and thus was fit to serve in that capacity.

If, however, they testify that he never robbed, the matter is considered unresolved and he is not acceptable as a judge (Kessef Mishneh; Sefer Me’irat Einayim 46:62).

Even though he was not acceptable as a judge beforehand, since he became acceptable before the others signed, we do not say that the entire sitting was nullified.

When it is discovered that a person committed a transgression that disqualifies him as a judge, he is disqualified until witnesses testify that he repented. Even if he repented beforehand, until such testimony is delivered in court, he is unacceptable (Kessef Mishneh).
For this reason, even if he had already repented, if the judges signed the document before the witnesses testified to that effect, the validation is unacceptable. For at the time they signed, the third judge was unacceptable and their entire sitting was nullified. For the document to be validated, the judges must reconvene their sitting and discuss the matter again. Indeed, the Sefer Me’irat Einayim 46:63 suggests that it might even be necessary to rehear the testimony of the witnesses who authenticated the signatures of the witnesses on the legal document.
The Siftei Cohen 46:66 notes that Rashi differs with the interpretation advanced by Rabbenu Yitzchak Alfasi and accepted by the Rambam. According to Rashi, after signing the validation of the legal document, the two judges may not give testimony concerning the propriety of the third judge. Others may, however, give such testimony and if they do, that judge may sign the validation of the legal document. The Siftei Cohen 46:66 argues at length in favor of Rashi’s interpretation.

And thus unfit to serve as a judge.

I.e., it is revealed that, even during the time the judge was under suspicion, he was actually fit to serve in that capacity.

And the judges will not sign until it has in fact been validated.
The Shulchan Aruch (Choshen Mishpat 46:24) quotes the Rambam’s opinion, but also quotes other views which differ and forbid writing these statements before the testimony is actually given. The Siftei Cohen 46:60 elaborates in support of the Rambam’s position.

Witnesses, by contrast, must read the contents of a legal document and know them to be true before signing (Ketubot 109a, b).

See a practical application of this ruling in Hilchot Toein ViNitan 16:2.

For the judges are not testifying with regard to the contents of the legal document. Their statements concern only the authenticity of the signatures of the witnesses. Nevertheless, they must know the identity of the principals involved so that they are not their relatives. For that would disqualify the validation (Rabbenu Nissim; see the notes to Chapter 7, Halachah 1)
In his Kessef Mishneh and his Shulchan Aruch (Choshen Mishpat 46:20), Rav Yosef Karo quotes Rabbenu Nissim’s view, but in his Shulchan Aruch, he also cites the view of the Rambam which he interprets as implying that the judges need not read the legal document at all.