The Laws [Governing] Witnesses, Legal Documents, and [The Deposition of a Legal Document in the Hands Of] a Third Party

The Rules [Governing] Witnesses, Legal Documents, and [the Deposition of a Legal Document in the Hands of] a Third Party. (1-53)

1 Whoever1 knows testimony2 concerning another person,3 is fit to deliver that testimony,4 and that testimony will benefit that person,5 is obligated to testify on his behalf6 in court7 if that person summons8 him to do so. [This applies] whether there is another witness [who will testify together] with him9 or he will testify alone.10

Nevertheless, one witness should deliver testimony only regarding a financial concern that would lead to an oath or a matter that involves a prohibition. If, however, a transgression was already performed, he should not testify [alone. Indeed,] were he to do so, he would be like one who defames a person’s character.11 For [the testimony of] one witness is not accepted with regard to imposing punishment on its basis, as it is written:12 “One witness shall not arise against a man with regard to any sin....”

Two witnesses, by contrast, are obligated to deliver testimony so that a person will be punished for a transgression that he violated,13 for this is [the subject of] a positive commandment of the Torah:14 “And you shall eradicate the evil from your midst.” [This verse refers to] a transgression for which one is liable for capital punishment. A similar [obligation also applies] concerning other transgressions with regard to [meting out] the punishment appropriate for them.15

2 [The following principles apply when] a Torah scholar knows testimony benefiting another person and he summons him to testify on his behalf before a court whose wisdom is less than [the scholar’s] and it is demeaning for him to go to them. If the testimony concerns financial matters, he need not go and testify,16 for the positive commandment of honoring the Torah17 takes precedence over preserving his fellow’s finances.18 Instead, [the court] should send three men to his home and he should testify in their presence.19 If, however, his testimony could in any way lead to safeguarding the violation of a prohibition,20 he is obligated to go and testify, for “There is neither wisdom nor understanding... before G‑d.”21

3 When a Jew knows testimony [benefiting] a gentile who has [filed a] suit against a Jew in a secular court,22 it is forbidden for him to testify23 if his testimony will result in the Jew being obligated for more than he would have been obligated by Jewish Law.24 If not, it is permitted to testify. If, at the outset, the gentile designated a Jew to serve as a witness for him, [the Jew] must testify in all instances, since failure to do so would lead to the desecration of G‑d’s name.25

4 As long as one remembers a matter, he may deliver testimony any time [thereafter].26 He need not be concerned that [his recollection of] the matter has been affected by the lengthy passage of time and he no longer remembers the event clearly. He may testify even if he remembers the event only [with the aid of] notes that he wrote in his journal27 to serve as a record at the time the testimony was related to him28 and now he remembers it only because of this record.

[This applies] provided he remembers the matter when he sees his written record. If, however, he does not remember the matter, he may not deliver testimony even though the matter recorded in his diary is true, as [indicated by] the verse:29 “[The matter will be established] on the basis of the statements30 of two witnesses.” [This excludes] their writing.31

Similarly, if a witness is reminded about the matter by another person — even by the litigant himself — and he remembers it, he may testify if he is a Torah scholar, for [a Torah scholar] would certainly not testify unless he remembered the matter.32

5 It is forbidden to testify about a matter that one did not see oneself.33 [This applies] even when he was told [about it] by a person who he knows will never lie.34

Even if [a litigant] tells a person: “Come and stand together with another witness that I have. You will not [have to] testify. It is only to frighten the other litigant and have him think that I have two witness so that he will admit [his liability] to me,” he should not heed him.35

6 When an acceptable witness knows that a colleague is a wicked person and thus disqualified as a witness by Scriptural Law,36 but the judges are not aware of his wickedness, he is forbidden to testify together with him even though the testimony is true, as it is written:37 “Do not join hands with a wicked person to be a corrupt witness.” For it is a decree of the King38 that even when there are many [witnesses], if there is but one unacceptable witness among them, the entire testimony is invalid.39

7 What is meant by “a wicked person who is disqualified as a witness by Scriptural Law”? Anyone who committed [a sin] that is widely known among the Jewish people to be a transgression40 and which is forbidden as a negative commandment by Scriptural Law.

One is disqualified if he transgressed willfully and did not repent,41 for he would have been liable to be punished by lashes42 if two witnesses had warned him.43 And one who is liable for lashes is called wicked by the Torah, as it is written:44 “If the wicked person is liable for lashes....” Needless to say, [this applies to] a person who is obligated to be executed by the court, as it is written:45 “He is a wicked person who is [sentenced] to die.”46

If, however, it is possible to suppose that [the transgressor] acted inadvertently or in error, i.e., he was unaware of the prohibition, he is not disqualified as a witness even according to Rabbinic Law.47

8 It is forbidden to take a fee for going to testify in a court48 (in one’s town)49 regarding a matter that one has already observed, since he is obligated [to testify] according to Scriptural Law50 and it is forbidden to receive a wage for observing mitzvos. It is, however, permissible to receive a fee for going to see a matter so that he will be able to serve as a witness concerning it afterwards. [This is permitted,] because one is not obligated at all to see the matter.51 For this reason, witnesses to a bill of divorce are permitted to charge a fee for their signatures.52

9 The hearing of testimony requires three expert [judges] who are knowledgeable concerning the laws of testimony, [knowing] which testimony is valid or invalid, and who are careful in the way they conduct the hearing of the testimony of each person,53 as our Sages commanded:54 “Sages, be careful with your words, lest [witnesses] learn to lie from your words.” In recent ages, commoners55 have begun hearing testimony and this leads to the perversion [of justice].56

10 When a person gives a friend a loan in the presence of witnesses,57 they should not compose a record of their testimony and give it to the lender without the consent of the borrower,58 for perhaps the borrower does not desire that the lender have a contract of loan [obligating] him.59

When does the above apply? When an act of contract60 was not formalized with the borrower. [More stringent laws apply,] however, if an act of contract using a kinyan sudar61 was performed with the borrower in the presence of the lender.62 [Indeed,] even if a loan was not actually made, but a person established a contractual obligation that he is liable to give a colleague a maneh63 through the performance of a kinyan sudar, the witnesses may compose [a legal document], sign it, and give it to the person to whom he obligated himself.64 [This applies] even if the person who undertook the obligation did not tell them to compose [such a contract], for any contractual act65 is performed with the expectation that it will be recorded [in a contract], unless the person who accepted the obligation [explicitly] protested against its being recorded.

Even if there was a lengthy interval,66 but afterwards the person to whom the obligation was made came to [the witnesses] and asked them to compose a legal document, they may compose such a document [at the later date] and give it to him without any further [deliberation]. They need not consult the person who undertook the obligation,67 nor need they be concerned that perhaps the debt was paid.

Even if the lender died and the date for payment passed during his lifetime, [a legal document] may be composed after his death; we are not concerned that perhaps payment was made. [The rationale is that] since [any obligation confirmed by] an ordinary contractual act is fit to be recorded [in a contract], it is as if [the creditor] is holding a contract in hand from the time of contractual act. When [a creditor] is holding a legal document [substantiating the obligation] and [the debtor] desires to pay [the debt], he must take the document from his [creditor’s] hand. If he does not, it is he who has caused himself a loss, [because a court] will accept the statements of anyone who produces it and says that it was not repaid.

Similarly, in this instance, when [the debtor] pays, he must inform the witnesses to the contractual act that he paid. If he does not inform them, it is he who caused himself a loss. For the word of [the creditor] who asks that the obligation be recorded and who claims that he was not paid is accepted and [the witnesses] may compose a legal document on his behalf. Similarly, if the creditor dies, [a legal document] may be composed for his heirs. This also applies if both [the creditor and the debtor] die.

11 All the above applies with regard to witnesses who were designated to testify [concerning the obligation]. By contrast, others who [observed the event, but] were not designated to testify should not record the matter without the consent of the person accepting the obligation. Were that not so, if there were many people [present at the time an obligation was made], any pair of [observers] could have a legal document composed [for the creditor] on which basis, he could collect the debt.68

All the above applies when one made a commitment to give [a sum to a friend]. If, however, one waives a right [belonging to him]69 in favor of a colleague in the presence of witnesses70 or frees him from a debt that he owes, [the witnesses] may compose a legal document and give it to [the debtor] without [the creditor’s] consent even if they were not designated as witnesses.71 The same ruling applies when a person admits to a colleague in the presence of witnesses: “I received this-and-this amount from you [as payment] of the debt you owe me,” even if he did not [specifically appoint them, saying:] “You are witnesses.”

12 When any legal document — whether a promissory note, a deed of sale, or a deed reporting a gift — was affirmed by a contractual act that was made conditionally and with an asmachta, i.e., it can be assumed that the person making the stipulation presumed that the condition would never be fulfilled,72 the contractual act is of no consequence and thus the person has not made a binding commitment with regard to the transaction. Accordingly, even if the condition is fulfilled, the contractual act is of no consequence unless the contractual act was performed in the presence of a prestigious court in which instance, [it may be assumed that] he made a binding commitment.73

Alternatively, even if he actually did not perform a contractual act in the presence of a court, but merely instructed that it be stated in the legal document that he carried out a contractual act in the presence of a prestigious court, [he is assumed to have made a binding commitment with regard to the transaction]. For although [the statement] is false, [we follow the principle that] an admission made by a litigant is equivalent to [the testimony of] 100 witnesses.74 [Thus we may assume that] he made a binding commitment with regard to the transaction. [Similarly, his commitment is binding] if he instructed that it be written [in the document] that he accepts a ban of ostracism or an oath [if he does not fulfill his obligation], for such measures are effective even with regard to an asmachta. Therefore, when he orders that [a legal document] be composed [stating the above, he is assumed to] have made a binding commitment, even if he did not actually undertake [these measures].75

The witnesses must be careful with regard to all the above. They should not include any such statements in the legal document unless the person accepting the obligation tells them to do so, and should not do so when only an ordinary act of contract was carried out. [This applies] even if the custom in that region76 is to write [such statements] in all legal documents recording contractual acts.77

When, however, [the person accepting the obligation] says: “Compose a legal document and give it to him,” [the witnesses] should write all of the phrases that are customarily included in all similar legal documents composed in that town, even though the person did not explicitly tell them to include all the statements that are effective [in clarifying that a stipulation is not] an asmachta.

[They may include] statements that are effective with regard to: a) [clarifying that a stipulation is not] an asmachta, b) the acceptance of [the lender’s] word,78 i.e., that the lender’s word would be accepted without having to take an oath79 or accept a ban of ostracism on condition that the debt was not repaid,80 c) the nullification of a protest with regard to a bill of sale,81 d) [the statement:] “Write this in the marketplaces,” that is included in a document recording a present so that the present will not be considered as “hidden,” in which instance it is of no consequence.82

[Similarly, they may include] any other [wording] that amplifies the legal power [of the bearer of a legal document] which is customary to include, whether in a promissory note or in other legal documents. [This applies] provided that this is the accepted custom with regard to all the legal documents in that town and the person ordering the witnesses to compose the document is aware of this custom. Thus, had he not intended that they should compose the document in such a manner, he should have explicitly told them not to compose the document according to the local custom. If he did not make such a stipulation, he caused himself a loss.

Similarly, even with regard to an ordinary contractual act that may be recorded in a legal document, all of [the expressions that] amplify the legal power [of the bearer] that are customarily included in such a legal document should be included83 if the person accepting the obligation knows that this is the custom. Since it can be assumed that [any obligation confirmed by] an ordinary contractual act will be recorded [in a contract, if he had not wanted these expressions included,] he should have told [the witnesses] explicitly. If he did not do so, he caused himself a loss. For [these expressions that] amplify the legal power [of the bearer] are not falsehoods that require the statements of the litigant to substantiate them, as is necessary with regard to the inclusion of [the statements mentioned above with regard to] a prestigious court, an oath, or a ban of ostracism.84

13 If it is not common custom to include such expressions in all such legal documents composed in a town, or it is not clearly known that the person accepting the obligation knows of the custom [to include them], one should not include any expressions that amplify the [bearer’s] legal power85 without the consent of the person accepting the obligation. [An exception is made when] it is known that the court does not at all render judgment on the basis of these expressions that amplify the document’s legal power, because they are customarily included in the legal document as mere stylistic niceties and not as an indication that in truth the bearer of the legal document will have the powers implied by these expressions.

Therefore if the owner of a legal document does indeed desire that his powers be enhanced, [he should have] the person accepting the obligation explicitly tell the witnesses to include these powers [in the document. The witnesses] should have [the document] composed in this manner, stating that [the person accepting the obligation] explicitly told them [to include these powers]. For example, if a lender desires that his word be accepted without an oath or the acceptance of a [conditional] ban of ostracism that he did not receive payment of his debt,86 the borrower should explicitly tell the witnesses [that he accepts this provision] and it should be stated in the promissory note that the borrower specified that he accepts the lender’s word [with these provisions].

If the lender desires that, after paying the debt, the borrower not have the right to require [the lender] to take a sh’vuas heseis87 that the debt was not paid twice,88 he should have the document state that the borrower accepts his word forever. If he desires that his word also be accepted against the claims of the heirs of the borrower, [the witnesses] should write in the promissory note that [the lender’s word is accepted] “against [the borrower] and all those who represent him.”89 If he desires that the word of his heirs also be accepted, [the witnesses] should write in the promissory note that the word of the lender and all those who come on his behalf [should be accepted].90

All of the above must be done with the consent of the borrower. [These stipulations are binding] even if they were not [affirmed] with a contractual act, provided they were made before the loan was given,91 since [the lender] is making the loan to him based on these conditions.

14 [The following principles apply with regard to] all legal documents, whether promissory notes, deeds of sale or deeds recording presents that were affirmed by an act of contract. If the document was not written on the date when the contractual act was performed,92 [the documents] should be dated on the date when the contractual act was performed93 and not on the day the legal document was written.94 [The document should] state: “We performed an act of contract with so-and-so on this-and-this date and we have composed [a legal document recording the matter], signed it, and given it to so-and-so.”

If they do not remember the day on which the act of contract was performed, they should write the date on which the document was composed, mentioning the act of contract without its date. [The document should] state: “We performed an act of contract with so-and-so and we have composed and signed [a legal document recording the matter] on this-and-this date and given it to so-and-so.” Nevertheless, if they remember that they performed the act of contract in the beginning of a particular month, at its end, or in its middle, they should write: “We performed an act of contract in the first third of this-and-this month,” “...in its midst,” or “...in its last third.”95 If they do not remember the month or they do not remember if it was at the beginning of the month, its midst, or its end and hence, they date the legal document on the date of its composition, they should write in the document: “We delayed the composition of this legal document.”96

15 When the legal document is dated on the day of its composition, [the witnesses] should also include the place where they were located at the time of its composition and not the place where the act of contract was carried out.97 Similarly, whenever testimony was entrusted to witnesses28 in one place and recorded in another place, the place where the document is composed should be recorded.93 If, however, [the witnesses] remember the date on which the act of contract was performed and they record it, they should also record the place where the act of contract was performed.98 [Such a document should] state: “We performed an act of contract with so-and-so in this-and-this place and we have composed [a legal document recording the matter], signed it, and given it to so-and-so.” When they record the place where the document was composed,99 [the document should] state: “We performed an act of contract with so-and-so and recorded it [in a legal document] and signed it on this-and-this date in this-and-this place.”

When should they record the place [where the document] was composed and not [the place where] the act of contract was performed? When there is no difference between the value of the currency used in the place where the document is composed and that used in the place where the contractual act was performed or even if there is such a difference, but the currency used in a particular place is [explicitly] mentioned in the legal document. If, however, the value of the currency used in the place where the document is composed is different from that used in the place where the contractual act was performed and the document does not refer to the currency used in a particular place, only the place where the act of contract was performed should be mentioned even though they do not remember the date [of the act of contract] and the date when [the legal document] is composed will be mentioned. [The rationale is that] the lien is established according to the currency in the place where the act of contract was performed. If, however, they would mention the place where the legal document was written, the lien would be established according to the currency used in the place where the legal document was composed.

16 The witnesses must be precise in [their choice of] wording with regard to an act of contract that was performed by a person who obligated himself to give a particular entity — whether it be money, land, movable property, or food and clothing — whether immediately or at a given date, for [often,] this contractual act is of no consequence.100 [Such a commitment] should not be recorded [in a legal document] unless [the person making the commitment] used the expression that he “accepts an obligation upon himself” to give [an entity] immediately or at a later date. If, however, he did not use the expression that he “accepts an obligation upon himself,” but instead, said “I will give it immediately” or “...at a given date,” even though an act of contract was performed, [his statements] are of no consequence.101 For when a contractual act is performed to affirm a promise to give, the contractual act refers merely to words and [for] a contractual act [to be effective], it must apply to the actual substance of the article, if he transfers ownership of it from that time [onwards].102

If he does not transfer ownership of the article from that time [onwards], but [merely] says that he will give it to him immediately or at a given date, the contractual act does not apply to [the article in question. Instead,] it applies to the body and soul of the giver, [requiring him] to give [the article] to [the recipient. Such a commitment would be binding only] if he used wording [that connotes accepting] an obligation, [i.e.,] he obligates himself to give.

For this reason, it has become customary to compose tenaim acharonim103 [second and final tenaim] at the time of a wedding; the first [agreement] is not sufficient.104 [The rationale is that] in the original agreements, the two sides do not obligate themselves using the wording of accepting an obligation upon themselves. [This ommision is intentional;] it is possible that either of the sides will desire to withdraw for a particular reason and will wish to absolve himself merely by paying a fine. For the ban of ostracism that is included in the [original] tenaim is of no consequence unless it is explicitly accepted.105 (It was only included in the agreement to resolve the question of the fine being considered as an asmachta72 to the satisfaction of all opinions.)

17 When a promissory note is supported by an act of contract, it is permitted for the witnesses to compose it, sign it, and give it to the borrower even though he [has not yet taken the loan, and] will not borrow with it,106 nor give it to the lender, until several days later.107 [The rationale is that] immediately upon performing the contractual act of exchanging a handkerchief,61 the borrower’s property comes under lien to the lender, for a benefit can be acquired for a person outside his presence.108 Therefore it is not considered a predated promissory note.109

If, however, [the borrower] did not perform a contractual act, the witnesses should not compose and sign a promissory note until the lender is together with the borrower and the promissory note is given to the lender in their presence on that day.110 [They must act in this manner,] lest [the borrower] not give [the lender] the promissory note until the following day in which instance, the note would be predated and therefore invalid.111 Even if [the promissory note] was composed during the day and given at night, it is invalid112 unless [the promissory note] is dated for the following date.

18 (The rationale why a predated promissory note is invalid113 is that [the creditor] could expropriate property from those who purchased it [from the debtor] immediately after the date written in the promissory note, before [the date when] it was given to the lender,114 and thus he would be expropriating those properties unlawfully.115 For [the borrower’s] property does not come under the lien of the lender until he gives him the legal document.116

Therefore a promissory note that will not be used to expropriate property will not be invalidated if it was predated and thus can be written for a borrower even though he is not accompanied by the lender. An example [of such] a promissory note [is one] that was not signed by witnesses to validate the matter, but rather signed by the borrower and the witnesses signed below to validate the borrower’s signature, but not the matter [discussed in the promissory note].117 The promissory notes that are composed in these countries118 exemplify [this practice], for the witnesses do not sign [to validate] the contents [of the note] only [the authenticity of] the signature.)

19 By contrast, a promissory note may never be written119 for a lender unless he is accompanied by the borrower.120 [This applies] even if a contractual act was previously performed with the borrower, employing a kinyan sudar,61 outside the presence of the lender, [affirming that the borrower] owed a debt to this lender. [The rationale is that] the principle that [any obligation confirmed by] a contractual act is fit to be recorded in a legal document121 does not apply when the contractual act was not made in the presence of the lender.122

Even if the lender tells the witnesses: “Compose a promissory note, sign it, and hold it in your possession. When the borrower comes today and tells you to give it to me, do so [only at that time]. If he does not [come], tear it up,” they should not heed him, for perhaps he is being deceitful [in the hope that] the promissory note might fall from their hand and he would find it or perhaps, he could steal it from them.

Similarly, a receipt [for payment of a debt] should not be written and signed for a borrower unless he is accompanied by the lender.123 One may, by contrast, compose and sign such a receipt for a lender even if he is not accompanied by the borrower.

20 Similarly, a deed of sale should not be written and signed for the purchaser unless the seller124 accompanies120 him. [This applies] even if a contractual act was performed with the seller outside the presence of the purchaser,125 and even if the purchaser tells [the witnesses]: “Compose [a deed of sale], sign it, and hold it in your possession until the seller comes and tells you to give it to me.”126 Similar principles apply with regard to a deed recording a present.127

One may, however, compose [and sign a deed of sale] for a seller even though he is not accompanied by the purchaser,120 provided he affirms the transaction by performing a contractual act via a kinyan sudar.61 As a result, the contract is not considered as predated,128 even though he will not give it to the purchaser until after several days [have passed]. Similar laws apply with regard to a deed recording a present.129

If, after a contractual act is performed, the seller merely states: “Compose a bill of sale,” and does not say that it should be given to him, [the witnesses] should compose it, sign it, and give it to the purchaser, for it can be assumed that his intent was that it be given to the purchaser and not to himself unless he explicitly [states otherwise]. This also applies with regard to a promissory note that is supported by a contractual act.

If, however, he did not perform an act of contract, even if he told [the witnesses to] compose a document, [sign it,] and give it to [the purchaser], they should come back and check with him before giving it to the purchaser, lest the seller have retracted.130 Similar laws apply with regard to a promissory note that was not affirmed by a contractual act.

21 If the witnesses do not compose the legal document themselves,131 they may not sign it until they first read it in its entirety,132 word by word, and thoroughly understand everything stated in it. If they cannot read it themselves or cannot understand it themselves, it should be read and explained to them by two others who are of upright character, trustworthy, and fit to give testimony.133 [Only] afterwards should they sign. As an initial preference, one should not [select] witnesses to sign a legal document if they do not know how to read it and understand it themselves.134

22 The witnesses must sign [the legal document] themselves. If a witness does not know how to sign, but he orders another person to sign for him — [even if] he gives the pen to him — [the second person’s] signature is of no consequence. For this is considered as relating the testimony of another person.135 (Needless to say, [it is unacceptable for him] to tell the other witness to sign for him, because then there will be only one witness [to the legal document].)136

If, however, the person accepting the obligation is to sign on the legal document, as is the present custom,137 but he does not know how to sign, the legal document is acceptable if he commands another person to sign for him by passing him the pen. Two witnesses [must] sign below that signature, saying that this is the signature of [the principal] who commanded [another person] to sign [for him] and passed him the pen.

23 The witnesses must be exceedingly careful not to sign [on a legal document] unless they observed the matter [described within] themselves in a manner that would allow them to testify in court as witnesses. For their signature on a legal document is equivalent to testimony delivered in court.138 Therefore they must be very careful that there be no element of falsehood whatsoever in their testimony.

For example, a person desires to borrow money from a colleague at a later date and therefore has a promissory note composed for the loan. He gives [the promissory note] to the prospective lender, trusting that if he does not give him the loan, he will return the promissory note. It is forbidden for witnesses to sign on such a promissory note.139 If they sign it, it is comparable to delivering false testimony. Similarly, [the prospective lender] is forbidden to accept such a legal document. If he accepted it, it is forbidden for him to keep it in his home, as it is written:140 “Do not [allow] iniquity to reside in your home.”141

The statement made above142 — that witnesses may compose and sign a promissory note that was not affirmed by a contractual act and give it to the borrower when he will give it to the lender in their presence that day — applies only when he already made the loan, he intends to make the loan in their presence, or he does not make the loan at all, but the “borrower” obligates himself with this promissory note as a gift in consideration of a favor [the other person] performed on his behalf or will perform.

When witnesses sign on a statement of protest143 which states: “We recognized how so-and-so acted under duress...,” they must be very careful not to rely on [the seller] unless they themselves are certain that he acted under duress.

24 Similarly, witnesses must be careful not to sign any promissory note until they recognize and know that [the name contained in the document] is in fact the name of the borrower.144 They should not rely on the statements [of the person professing to be the borrower] that this is his name, for perhaps he is mentioning the name of another person120 in order to create a liability for that person with this promissory note and he has made a deceitful agreement with the lender.145

With regard to a receipt for payment of a debt, it is necessary [for the witnesses] to know that the name [stated in the receipt] is that of [the person professing to be] the lender. For perhaps the latter has made a deceitful agreement with the borrower [to defraud] another person with that name to whom the borrower owes this [same] sum.146

Similarly, with regard to a deed of sale or a deed recording a present, it is necessary for them to know that this is the name of the seller or the giver of the present. For it is possible that he has made a deceitful agreement with the [alleged] purchaser or the recipient of the present [to defraud] another person with that name and expropriate this property from him.147

25 If [witnesses] do not know the name of [a principal], they can rely on the statements of another person, even that of a woman or a relative,120 who say that this is his name. [The rationale for this leniency is that] people will not lie regarding a matter that will inevitably become known.148

With regard to the name of the lender, the purchaser, or the recipient of the present, by contrast, one may rely on [the person who professes to be that individual] if the document was affirmed by an act of contract. For such a document may even be composed outside the presence of the lender,149 the purchaser, or the recipient of the present. Similar laws apply with regard to the name of a borrower with regard to a receipt for a loan.150

26 Whenever anyone has been known by a name in a town for 30 days, we [operate under the assumption that this is his name and] use it in a legal document. We do not suspect that he changed his name for 30 days in order to perpetrate deception, for were we [to entertain such suspicions] there would be no end to the matter, because we could never be certain of the name [of a newcomer].

If there are two people in a town whose names and the names of their fathers are the same, the witnesses should include the names of their grandfathers93 [in a legal document]151 if [the witnesses] know [their grandfathers’ names] without asking the person accepting the obligation. Alternatively, if one is a kohen or a levite, that point should be mentioned. Alternatively, distinguishing physical characteristics, that one is tall while the other is short, or the like, should be mentioned.

27 Similarly, witnesses should be careful not to sign a legal document unless they check it very precisely to see that all of its letters are similar, that the penmanship is straight and [the letters and spacing] are balanced throughout the text, so that the letters will not be overly separated from each other. [Otherwise, it would be possible for] a forgery to be made by inserting a small letter between two others, thus causing the meaning to change.

[Moreover,] even if the letters are not overly separated from each other [in general], but they are further apart in one place than in the remainder of the legal document, forgery is possible by adding a smaller letter in that place. It will not be obvious, because the spacing between the letters will resemble that of the remainder of the legal document. [Attention to all the above is necessary, because] our Sages invalidated any legal document that could possibly be forged,152 even though it was not actually forged.

[Similarly,] one should not squeeze the letters too tightly together, lest [the document] be disqualified out of the suspicion that a forgery had been made and additional smaller letters were squeezed in afterwards. (Similar suspicions arise if the letters are not of the same size, but instead, one is large and another is small.) Also, one must be careful with regard to the vavvim and the zayinim that they not be squeezed within the words, lest they be disqualified because of the suspicion that a forged vav or a zayin was added. Similarly, they should not be too distant [from the other letters] lest they be disqualified because of the suspicion that one letter, e.g., a hei or a ches was erased except for one leg that was left as a vav or a zayin.153 Similarly, one should be precise regarding all analogous situations that might arise in any language and with any script.

28 One should be careful that letters not be used for any of the numbers mentioned in a legal document, e.g., writing a ב,ג,ד,ה or a ו.154 For a forgery could be made and the ב altered into a כ, the ג into a נ, the ד into a ר, the ה into a ח or a ק, and the ו into a ז. Similar laws apply with regard to other letters in other scripts. [Attention to the above is necessary, because] our Sages invalidated any legal document that could be forged, even though it was not actually forged.

Similarly, one should be careful not to write the Hebrew term for the numbers from three until ten at the end of a line, because the term for three (שלש) could be made into thirty (שלשים),155 the term for four, made into the term for forty, and so on, until ten.153 Similarly, the hei of the word שמנה (eight)156 could be erased and שמונים (eighty) written instead [if that word was written at the end of a line].157 A similar [concern arises] if the words שלשה (three), ארבעה (four) until ten are written at the end of the line, because [the hei] could be erased and [the word implying the multiple of ten written instead].158 If one of these numbers happened to be written at the end of a line, he should write it again at the beginning of the next line.

29 On the last line of a legal document, one must repeat some of the previously mentioned subject matter159 that need not be [restated].160 The rationale is that we do not derive any privileges161 for the bearer of the legal document from what is written on the last line162 if they were not already spelled out above that line.

[To explain:] witnesses [generally] are not able to constrict themselves and [do not] sign directly below the body of the document. There is reason to be concerned about the possibility that the witnesses left enough empty space to write a line [below the document] and the bearer of the legal document wrote whatever he desired there. Accordingly, [our Sages] stated that nothing should be derived from [the contents of] the last line of a legal document. Therefore they ordained that it should be used only to restate some of the previously mentioned subject matter.163

The above applies even if the signatures of the witnesses [on a document brought before the court] are removed [from the body of the document by] the width of a line. [Although] there are no grounds to suppose that the witnesses left two lines [of open space between the document and their signatures], nevertheless, nothing should be derived from the last line [of the document] and it should contain only some of the previously mentioned subject matter. [For] our Sages did not make a distinction between one document and another [when ordaining] their decrees.

30 If a legal document contains erasures,164 letters or words inserted between the lines, or words that were crossed out, these changes must be validated,159 i.e., [toward] the conclusion of the legal document, it should be stated that this-and-this word is written over an erasure, is written between the lines,165 or was crossed-out. This validation must be made before the last line, because no new concepts are derived from the last line.166

31 At present, (in the places where) it is customary to write at the end of all legal documents: והכל שריר וקיים, “Everything [stated] is firm and enduring,”167 if a legal document does not [conclude] in this manner, it is unacceptable and witnesses should not sign it. [Consequently,] new concepts may be derived from what is written on the last line before [the statement], “[Everything stated] is firm and enduring.” [The rationale is that] there is no reason to suspect that the bearer of the document added this last line in the line of empty space left by the witnesses [between the text and] their signatures, since the expression, “[Everything stated] is firm and enduring” is not stated before this line.168

Accordingly, the erasures and the additions should be validated on the last line before the expression, “[Everything stated] is firm and enduring.” One should not follow the practice of those who err and make these validations after the expression, “[Everything stated] is firm and enduring.”169 If they forgot to make these validations before the expression, “[Everything stated] is firm and enduring,” the witnesses should first sign [the legal document] and then make the validations and sign again after them.

32 The witnesses must be careful not to distance their signature from the text [of the document] by a width of two lines together with the open spaces [needed for them],162 [i.e., sufficient space] to write a lamed170 on the upper line and a final chof171 on the lower line, i.e., two lines and three spaces.172 If they left that much empty space, the legal document is invalid, because it is possible to forge it and write whatever one desires in the first of these two [empty] lines and repeat some of the content of the document in the second line. Even if the expression, “[Everything stated] is firm and enduring” was written at the end of the document, it could have been erased and the erasure validated in the line before the last and then “[Everything stated] is firm and enduring” written again in the last line.173

In contrast, when [the witnesses] only distanced [their signatures] one line [from the end of the document], if the expression, “[Everything stated] is firm and enduring” that is at the end of the document was erased and one wrote whatever he desired in the last line and then wrote “[Everything stated] is firm and enduring,” no concepts would be derived from the validation of the erasure that is stated in the last line. [The rationale is that] since the erasure is as large as the space it takes to write “[Everything stated] is firm and enduring,” one might suspect that anyone would erase the expression, “[Everything stated] is firm and enduring” at the end of the document and add a line174 — for the witnesses are unable to constrict themselves and sign directly under the text of the document175 — and in that line he will validate the erasure and write “[Everything stated] is firm and enduring.” The [above] statement176 that an erasure can be validated in the last line applies only when it was not large enough to write “[Everything stated] is firm and enduring” in it or it is not in a place where it is appropriate to write that expression.174

33 [The size of] these lines is estimated according to the penmanship of the witnesses172 which is [usually] large and not according to the penmanship of the scribe who has trained himself to write with a finer script. [The rationale is that] anyone who attempts to forge [a document] does not take it to a scribe, for perhaps he will not heed his [request],177 but instead, performs the forgery himself and he does not know how control his hand to write with a fine script like a scribe.

34 When the entire text of a legal document and the signatures of the witnesses appear on one line, it is acceptable,178 for our Sages did not prescribe a minimum measure [of lines] for the size of a legal document. If, however, the entire text of a legal document was written on one line and the signatures of the witnesses are on a second line, it is invalid. For it is possible that the witnesses had signed another document and had not signed directly under its text, leaving the space of a line empty, and the possessor of that document cut off the entire text of the [first] document and wrote whatever he wanted on that [empty] line. Thus [it will appear that] the witnesses signed [in affirmation of those statements. Moreover,] even if the signature of the witnesses was removed the space of a line from the present text,179 [it is invalid, because] our Sages did not make any distinctions with regard to their decrees.

Even if one witness signed on the same line on which the [entire] document was written and the other signed below his [signature] on another line, it is unacceptable, because there is only one witness signed on the same line as the document. The signature of the second is of no consequence,180 for perhaps he signed on another document and left an empty space of one line between the text and his signature and the possessor of the document cut off the entire document and wrote whatever he wanted on it and had one witness sign there. [This applies] even if the witness states that this is his signature, because [the statement of] one witness [alone] is not sufficient [basis] to expropriate money.

35 Therefore if there is empty space [in the margin] of the legal document before the signature of the witnesses, they should sign one below the other and not one next to each other on the same line. [The rationale is that in the latter instance,] a forgery could have been made [in the following manner]: One could cut off the entire legal document and write in the margin that so-and-so owes him whatever sum he desires to state. [This would produce] a document with its content and its witnesses on a single line. [Hence, the original document would be unacceptable, based on the principle that] any legal document that could be forged is invalid,181 even if it was not forged.152

If the text of a legal document ends in the middle of a line, the witnesses should sign in the remaining portion of that line, one next to the other and not one below the other.182 Were they to sign one below the other, the last line and a half would have to contain nothing more than a restatement of the [previous] content of the document.183 [The rationale is] that no privileges for [the bearer of the document] will be derived from [information stated] there which was not stated previously, since it is possible that the witnesses left the space of an empty line because they could not constrict [their writing to sign directly under the document] and [when it came to] the second line, they signed in the center. Thus, were they to sign one below the other, there would be no reason to suspect [forgery, when] there is space on the margin before their signatures.184 [In such an instance,] the bearer of the document could have written whatever he wanted in this line and a half.

When, however, they sign one next to the other, in the half a line that remains, there is no need to repeat the content of the document even in the last half a line and privileges [for the bearer of the document] may be derived from what is stated there. For there is no suspicion that the bearer of the document added anything [on that line], inasmuch as witnesses are not allowed to leave any open space before their signatures when they sign one next to the other.

36 If the witnesses do not sign in the remaining half line, but instead, sign at the beginning of a new line, the document will be disqualified entirely, unless they are able to constrict their writing and sign immediately below the text. [It would be disqualified if they] leave an empty space of a line, because a forgery could be made and anything that one wants could be written in the remaining half line, after which the contents of the document could be repeated in the last line. [Since this possibility exists, the document is invalidated, because] any document that can be forged is unacceptable [even if it was not actually forged].152

Even if the expression, “[Everything stated] is firm and enduring” is included at the conclusion of the document, [it is still unacceptable,] because that expression could be erased and whatever one desires written instead and then the erasure validated in the half line that remains before the last line that he adds as explained above.185

37 All of the laws that are dependent on the concept that the witnesses cannot constrict their signatures and [are unable to] sign directly below the text of the document, also apply if the person undertaking the obligation himself signs. [For it is just as possible that] he too cannot constrict his signature and we suspect that he left the space of a line empty and the possessor of the document wrote whatever he wanted to [in that line]. Therefore the last line should contain nothing more than a repetition of the [previous] contents of the document. If, however, the entire document is written by [the person undertaking the obligation], we do not entertain such suspicions. (The above also applies with regard to a document [signed] by witnesses, when the entire document was written by [one of] the witnesses who signed below.)186

With regard to the legal documents that are employed in these countries187 in which the amount of the debt is written on the other side of the paper and the person undertaking the obligation signs opposite it on the other side,188 he should be careful to write the sum directly opposite the signature and not even one line below it. Otherwise, [such a document] could be forged by writing a greater sum [in the space] above the signature. [The forger] would then cut off the sum of money written on the other side of the page together with the signatures of the witnesses.189 Thus this would not [produce] a promissory note [confirmed by the signature] of witnesses,190 but rather one for a large sum [affirmed by] the signature of the debtor. He would not be able to claim that such a loan was never granted.191 [Since such a document could be forged, the document is invalidated, because] any promissory note that can be forged is disqualified.

If, however, the sum of the debt, even if it is only written in one line, would be written on the other side of the page a line or two above the place where the debtor signed, there is no concern about [the possibility of] forgery. [The rationale is that] if the amount of the debt will be cut off, there will not remain more than one line of blank space above the [debtor’s] signature. If [the creditor] will write a sum [so that] the signature will be positioned below it, [the document] will not be valid even if [the debtor’s signature] could be validated by witnesses for the reason explained above192 with regard to a promissory note written on one line with its witnesses on another.

38 [The following laws apply when] witnesses signed on a legal document and afterwards, the document was burnt in their presence, torn accidentally, or erased, whether immediately thereafter or at a later date, and the lender requests that the witnesses compose another document for him. They should not compose another document193 and give it to him without the consent of the borrower, for the borrower appointed them as agents only to compose one document and they have already performed that agency.194

[Different rules apply] if they did not complete their agency, e.g., the second witness did not manage to sign the document before it was erased or torn; alternatively, they both signed, but a scribal error was found in the sum owed, the date, the name of the borrower and the lender or the like, [i.e.,] matters that are certainly an error, or they forgot to include a stipulation such as the debtor’s acceptance of the creditor’s word195 or the like. In all these instances, they may compose a second document without the consent of the borrower.196

Figure 1

Figure 2

39 Even if [the witnesses] already fulfilled their agency and thus do not have the license to compose another promissory note for the lender themselves, they may go to a court and testify [concerning the loan and the destruction of the original document]. The court then composes another legal document and gives it to [the lender] without the consent of the borrower.197 In this, the legal power of the court is superior.198

When the court composes a [second] promissory note for [the lender], they date it from the original date.199 When, by contrast, the witnesses compose a [second] promissory note without [the jurisdiction of] the court, but with the consent of the borrower, they should date it from the time it is rewritten. [The rationale is that] if it is a promissory note that [enables the lender to] expropriate property that has been sold, [the borrower] cannot place his property on lien retroactively and thus cause a loss to those who purchased property from him in the interim, [for] the lien established by the first promissory note already expired when it was torn, burnt, or erased.200 [The above applies both] to a promissory note and to a deed of sale [in which the seller] accepts responsibility for the sale and establishes a lien on his property [for that purpose].

40 [Different laws apply] with regard to a deed recording a present201 or a deed of sale which explicitly states202 that [the seller] does not accept responsibility [if it is expropriated. In such a situation,] the original date should be written,203 even when the giver or the seller has no knowledge of [its composition].204 [Moreover, this applies even if the witnesses] did not see the loss of the first document [by the recipient],205 because there is no concern lest he will have two legal documents and take possession of his due twice, because [both deeds speak of the same] designated plot of land.206 And there is no concern that [the witnesses] already performed the agency [for which they were appointed], because they are not causing any obligation for [the seller or the giver], for the purchaser or the recipient already acquired this land [through the acquisition of] the first legal document and this [second] document merely [serves as] proof of ownership.

This differs [from the ruling that applies] to a promissory note207 which although it also serves as proof [of a debt, also serves other purposes, as evidenced by] the many differences between a debt supported by the oral testimony [of witnesses] and one recorded in a legal document.208 [Hence a promissory note should not be composed without the borrower’s consent,] because legal action that is to a person’s detriment may not be taken without his consent.209

Similarly, if a person pays a portion of his debt and the lender asks the borrower to exchange the old promissory note for a new one and the debtor agrees, the witnesses should not date the new promissory note from the original date,210 but from the date of the composition of the new promissory note. For the lien established by the original promissory note was annulled by its return to the debtor and he is unable to retroactively establish a new lien against his property. [Moreover,] without the consent of the borrower, the witnesses may not compose a promissory note at all, even using the present date, since they have already fulfilled their [original] agency.194

41 [The following rule applies when] one paid part of a debt and had the promissory note entrusted to a third party, telling him: “If I do not bring you the [rest of the] money to give to the lender by this-and-this date, give him the promissory note so that he can collect the entire sum.” If the date arrives without him bringing him the money, [the third party] should not give the promissory note to the lender.211 [The rationale is that the stipulation] is an asmachta.72 For the lender assumed that he would [surely] have financial resources when the day [for repayment] arrived and he never made a definite commitment to the lender.212

42 When does the above apply? With regard to a stipulation that is recognized as an asmachta and hence, [it is obvious that the borrower] did not make a binding commitment [to relinquish his rights]. If, however, the third party is in doubt whether the stipulation was made as an asmachta or there is a doubt whether [the borrower] will claim that it was an asmachta, because perhaps he did make a sincere and binding commitment, for in truth he is obligated,213 the third party should act as he was charged. [This also applies] even if it is known that the borrower has a claim [supporting his position], but the third party does not know whether [the borrower’s claim] will be accepted in court.214

[The rationale is that the mandate given the third party was not to act as] a judge regarding this matter, but as a bailee and when the borrower will make his claim, he can do so in court.

The third party should, however, give [the promissory note] entrusted to him to [the lender] in the presence of witnesses. Before surrendering it from his possession, he should describe in their presence the circumstances under which [the promissory note] was entrusted to him and the stipulations made. The witnesses will compose and sign [a record of] this description and give it to the third party. The third party will give it to [the borrower] when he comes to lodge a claim so that [the borrower] will have it in his possession as a proof of what was entrusted to the third party and the circumstances under which it was given. On this basis, [the borrower] can lodge a claim against [the lender].

The third party, however, should not bring [the promissory note] entrusted to him to the court in order to give it to the [lender] in their presence, for the court will not allow him to give it to [the lender] without the consent of [the borrower] since [were he to be present, the borrower] could issue a claim [defending his position. Accordingly, the court would be bound to protect the borrower’s interests, because] they can, outside a person’s presence, advance any claims on his behalf that he could have made himself.215 [It would be inappropriate for] the third party [to do this, because] the [promissory note] was not entrusted to him with this intent, but rather with the intent that he give it to the one who should acquire it according to the stipulation that was made when it was entrusted to him.

43 If, however, the third party knows that one of them will [definitely] acquire the promissory note according to law, based on the stipulations made when the note was entrusted to him and the other party has no just and true claim, he should give it to the person who has the right to it in the presence of the court and describe the circumstances in which the article was entrusted to him. They will compose and sign a description of the matter, lest a dispute or denial arise among [the litigants] and the third party’s word will no longer be accepted at that time since the object has left his possession.216 Therefore the entire matter must be clarified before the court before the promissory note leaves his possession. Every third party should be careful about such matters.

If a third party was appointed by an agent who brought an entrusted article to him, he should act according to the instructions given him by the agent even though the principal subsequently contradicts the statements of his agent.217

44 [The following law applies when] a promissory note was entrusted to a third party on the condition that if the borrower does not pay the lender by a specific time, the promissory note should be returned to the lender. If the third party does not know whether a portion of the promissory note has been paid already, but the date of payment has passed and the money has not been brought to the third party, he should return the promissory note to the lender. He need not be concerned that [the borrower] paid the lender [directly. This applies] even if [the borrower] did not stipulate that he would bring the money to the third party. [The rationale is that] if [the borrower] had paid the lender, he would have done so in the presence of the third party and demanded the promissory note from him; he would not have left his promissory note in the third party’s possession.

45 If, however, the lender comes prior to the time of payment and seeks to retract and take back his promissory note from the third party,218 [the third party] should not return it to him. [This applies] even if the lender entrusted the document to him without the knowledge of the borrower.219 ([The rationale is that] when the lender extended the time for payment, no stipulation was made, nor does the concept of asmachta apply.220 [Hence] the borrower attained the extension without having to perform any act of contract,221 since he is in possession of his money.

By contrast, when [an object or a legal document] is entrusted to a third party [with the intent that it be given] to a person who [is entitled to] acquire it because [he fulfilled] the condition made by the one who entrusted the object, this may be considered an asmachta in certain instances. In such instances, the giver may retract, unless he performed a contractual act in a prestigious court. At times, however, this is not considered as an asmachta and he cannot retract. Therefore the third party has to be well-versed in the laws of asmachta.)

46 If [the third party] forgot the stipulation on which basis the article was entrusted to him and the two litigants deny each other’s claims, [the third party] should not return the article to either of them until Eliyahu comes.222 Similarly, when a person finds a promissory note in his domain and does not know the circumstances under which [it was entrusted to him]223 — was it the lender who entrusted it to him or the borrower or was it given him as a third party224 and a portion of it had already been paid — he should not return it to either of [the principals].225 If he returns it, he is violating the directives of the Sages. Similarly, the heirs of a person entrusted [with a promissory note] should not return any promissory note found in their father’s possession unless they know the circumstances [under which it was entrusted to their father].

47 Similar laws apply with regard to deeds of sale and those which record a present.226 Although there is no issue of payment [of a debt],227 we must be concerned about a change of mind. Perhaps the person transferring ownership had second thoughts about making the transfer228 and entrusted the document to this person until he would be willing to transfer ownership, at which time he would take it from him and give it to the purchaser or to the recipient of the present. Thus at the present time, [these persons] will not have acquired ownership. Hence [the third party] should not give it to [such a person] if the person transferring ownership claims that he entrusted it [to him and the other claimant maintains that he entrusted it].

48 When does the above apply? With regard to a legal document that does not [state that the transaction was affirmed by] a kinyan sudar.61 If, however, it [states that the transaction was affirmed by] a kinyan sudar, and it is a deed of sale or one which records a present and thus there is no [question whether a debt] was paid, he should return it to the purchaser or to the recipient of the present. For from the time [the seller or the giver] performed an act of contract, he became obligated [to transfer the property]229 and the deed merely serves as proof of ownership.

When does the above230 apply? When [the third party] does not know who entrusted it to him. If, however, he knows that the person transferring ownership entrusted it to him, but he did not state what should be done with it and he is unavailable at the present time — e.g., he died — [the third party] should nevertheless not give it to the person to whom it would be transferred. For perhaps [the person transferring ownership] made a stipulation with the witnesses who performed the act of contract with him that they should give him the deed and not give it to the person to whom he transferred ownership, so that [the person making the transfer] would have the choice [whether to complete the transaction. Thus at the time he performed the act of contract,] he had not, [as of yet,] decided [to actually] transfer ownership.231 Needless to say, [this applies] if the person transferring ownership is alive and actually makes such a claim.

[If] the person who transferred ownership [has died, the third party] should also not give the deed to his heirs, for perhaps he did not make any stipulation and in fact completed the transfer. If, however, that person is alive and makes such a claim, [the third party] should return [the deed] to him,232 since he knows that he entrusted it to him.

49 When a promissory note is found in the marketplace,233 it should be returned to the borrower if the lender acknowledges the borrower’s claim that it fell from his possession.234 If, however, the borrower acknowledges the lender’s claim that it fell from his [the lender’s] possession, it should not be returned to him.235 [The rationale is that] since [the lender] was not careful in guarding it, we can assume that it is not a valid promissory note. Hence, we suspect the possibility of deception, i.e., that the borrower already paid [the debt]236 and [the promissory note] fell from [the borrower’s] possession, [because] he was not concerned about guarding it.237 He is now perpetrating deception together with the lender, [attempting to defraud] the purchasers who acquired his property after the time the document was composed.238 Even if the lender identifies [the promissory note] by citing a marked distinguishing characteristic,239 it should not be returned to him.240

If, however, it is a promissory note that does not enable [the lender] to expropriate property that has been sold, it should be returned to the lender if the borrower acknowledges that it fell from his possession. If he does not acknowledge that claim, it should not be returned to either of them unless one provides a marked distinguishing characteristic.

The particular laws governing the identifying characteristics of legal documents involve many details. Therefore one should not return a document unless instructed to do so by the court. All of this applies even with regard to a promissory note affirmed by an act of contract,241 since there is room for concern that the debt was paid.242

By contrast, with regard to a deed of sale or one recording a present that was affirmed by an act of contract, since there is no concern about repayment, nor about a change of mind, it should be returned to the purchaser or the recipient of the present even though the person transferring the property does not admit that it fell from him.243

A kesubah244 is considered as a promissory note245 and we are concerned about the possibility of payment and deception.246 (In contrast, [we do not suspect that payment has been made for] a promissory note outlining an obligation accepted by a person to provide sustenance and clothing for his son and his daughter-in-law or his daughter and his son-in-law for several years,223 i.e., we do not suspect that the father had prepaid the money during one year for the sustenance of the year to come. Hence [the document] should be returned to [the recipients] and not to [the person undertaking the obligation], provided that this was affirmed by an act of contract, in which instance there is no concern about him changing his mind.)247

50 [The following rule applies when: a) the debtor] paid a portion of the debt and the lender does not desire to write the amount he was paid on the promissory note itself, but rather desires to write a receipt, or b) [the debtor] comes to pay his entire debt and the lender says that he lost the promissory note.248 If the promissory note contains a clause explicitly stating that the lender’s word should be accepted as that of two witnesses, the lender should write a receipt and sign it himself rather than have it signed by witnesses. [The rationale is that] since [the borrower] accepted [the lender’s] word as that of two witnesses if he says that the debt was not paid and [since we follow the principle:]249 “Two [witnesses] are considered as 100,” a receipt signed by witnesses would not be effective in contesting his statement [that the debt remains unpaid]. Instead, it is necessary that [the lender] sign [the receipt himself, in which instance, we follow the principle:]74 An admission made by a litigant is equivalent to [and even stronger than the testimony of]250 100 witnesses.

When does the above apply? To a promissory note made out to a specific lender. [Different laws apply,] however, if the name of the lender is not mentioned at all and the borrower accepted an obligation [to pay] any bearer of the document, as is the present custom.251 [In such an instance,] a receipt signed by the lender is not effective252 if another person produces the promissory note, stating that he purchased [the promissory note] from the lender and claiming that he did not know that [the debt] was paid. In contrast, if the receipt was signed by witnesses,253 [the purchaser] is not entitled to claim “I did not know,” because the witnesses make the matter public knowledge.

51 At present, the following custom has become widespread when a person loses such a promissory note254 and [the debtor] who signed it admits that he is liable, but does not desire to pay [the debt] lest [the promissory note] be found by another person who will present it [for payment]. It should be announced in the synagogue255 that a promissory note for this-and-this amount and dated on this-and-this date which was signed by so-and-so, [the debtor,] and verified by so-and-so and so-and-so, the witnesses, [was lost]. Whoever possesses such a promissory note should immediately appear before the court. If he does not appear, the court should nullify the promissory note and give a written and signed document to that effect to [the debtor].256

It has also become common practice that a person may not purchase such a promissory note unless he asks the signer, [the debtor,] if it has been paid. If the signer is not in the town, he may purchase it. He need not be concerned about [there being] a receipt, because, [as stated above,] a receipt signed by [the lender] is not effective. And [had a receipt been composed] by witnesses, it would be public knowledge.

52 Every receipt [for a debt] — whether composed by witnesses or signed by [the creditor] — must state that payment was made for a promissory note that was for this-and-this sum.257 ([In this way, a creditor] will not be able to claim that the receipt was composed for another debt and [if] he seizes [property] belonging to the debtor, it would be [allowed to remain in his possession].)258 If the date when the promissory note was composed is recalled, [the receipt should state that [the payment is for] a promissory note dated on this-and-this date. If the date of the promissory note is not recalled, the composers of the receipt should be careful not to date [the receipt], for perhaps the promissory note was post-dated and a post-dated promissory note is acceptable.259 Thus at times the date on the receipt will precede the date of the composition of the promissory note and it will not be effective for this promissory note. Hence one should not date the receipt unless he recalls the date of the composition of the promissory note257 written in that note.260

53 It is forbidden to keep in one’s home a promissory note that has been paid or for which payment was waived,261 even though the borrower trusts [the holder],262 as [implied by] the verse:140 “Do not allow iniquity263 to reside in your home.” This applies even if one composed a receipt [for the debt]264 unless he writes [the receipt] on the promissory note itself.

The above applies when the debt was paid in its entirety. If, however, [the debtor] remains obligated even for a p’rutah, the [creditor] may maintain possession of the promissory note, but should compose a receipt. And if the borrower trusts him, it is permissible [to hold the promissory note] even without a receipt.

Nevertheless, the lender may not withhold the promissory note because of the scribe’s fee which he paid on behalf of the borrower, [although] the borrower is obligated to pay the scribe’s fee.120 [This applies] even if the loan was given [as part of an investment in which the lender receives] half the profits.265

[To explain:] The borrower did not have the money [to pay] the scribe’s fee [for the composition of the promissory note] and the lender paid for it on his behalf. [After the debt was paid, the lender] may not withhold the promissory note until [the borrower] pays the scribe’s fee, because the promissory note was not written for these monies and they constitute another debt.266

([The above applies] even if the paper [on which the promissory note was written] also belonged to the scribe and thus the body of the document also belongs to [the lender]267 and it is not necessary for him to give it to the borrower at all, [not even] to use as a covering for his flask268 until he pays for it. Nevertheless, [the lender] may not keep [the promissory note] in his home unless it is torn. Needless to say, he should not withhold the promissory note for another debt that [the borrower] owes him for a completely different account.)

There are [authorities who] permit [keeping the document until the scribe’s fee is paid, but] (a G‑d-fearing person should himself adopt a stringent stance and follow the first opinion).269