שולחן ערוך

Disqualification Due To a Potential Benefit, 22 Seifim: 1. A person is disqualified from any testimony in which he gains some kind of benefit by testifying. Therefore, if two people are partners in land and a third party attempts to remove the land from one of the partners by claiming that the individual who sold the land to them had originally stolen it from him, the other partner may not testify on behalf of his partner to disqualify the plaintiff’s witnesses. His testimony would not even help for his partner’s portion unless he removed himself from the field and they made a kinyan to give his portion to this partner. If the kinyan was not done until after the third party comes, it would still be valid. The testifying partner must accept that if his creditor were to come and collect from the partner that he would pay the partner the value of the taken land. He should make a condition that if a third party were to come to claim the land based on other claims, such as saying it was stolen from him or something similar, then he would not indemnify his partner. If, however, the plaintiff is only making a claim on partner’s share, such as a claim that the partner sold it to him, then he may testify because he has no stake in the testimony at all.

Some of the Laws of Impeachment: 1- If two witnesses testified about an individual that he owed so and so a maneh and two others come and contradict or impeach the witnesses, the alleged borrower is exempt. If witnesses testified in court that one owed his adversary a maneh and they later said they testified falsely, their original testimony stands because once they testify they cannot re-testify. They are, however, believed with respect to themselves and they must pay whatever loss they caused the defendant. RAMA: The Mechaber summarized in an area where he should have discussed at length. Although we do not judge the laws of impeached witnesses today because it is a fine, there is still a practical importance to the laws in that an impeached witness can no longer testify as was explained above in Siman 34, whereas witnesses who were merely contradicted are valid witnesses as was explained above in Siman 31. Thus, the author of the Tur wrote a significant amount of rules regarding impeached witnesses and anyone who wants to study them should look there.

Writing a document for the borrower without the lender, and on which admissions we write, 17 Seifim: When someone lends money to another before witnesses, or someone admits before witnesses that he owes another money, this is called a verbal loan, and the lender cannot [unilaterally] collect from the borrower's real estate. When someone lends another money with a written deed, he may collect from the borrower's real estate, even if the deed does not specifically mention a lien, since we rule that [omission of mention of] a lien is considered to have been a mistake on the part of the writer of the deed. If there are witnesses that the loan was effected with a "kinyan sudar", then even without a deed the lender may collect from the borrower's real estate. RAMA: See later, chapter 61 Paragraphs 2 and 10 for the definition of a deed. And see later at the beginning of chapter 225 for the laws of [omission of mention of] a lien being considered an error of the scribe.

1. The Law of One Who Obligates Himself to His Friend, 2 Seifim: If one unconditionally obligated himself monetarily to another, he is required to pay, even if he was not otherwise obligated. How so? If one tells witnesses “you are witnesses that I owe so and so a maneh,”; if there are no witnesses but he writes in a document “I owe you a maneh”; or if he does not say “you are witnesses” but says in front of witnesses “I owe you a maneh via a document”- since he said the term “document” it is as if he said you should be witnesses for me- in all such cases he is required to pay even if both parties admit, and the witnesses are aware, that he did not in fact owe the other anything, because he has obligated himself in the same fashion a co-signer can obligate himself. All the more so in a case where one writes “I accepted such and such sum of money from you with respect to the debt you owed me” would he waive his right to the loan even though we know he did not in fact accept any money. (Beis Yosef, Seif 73, in the name of the Ritvah)

1. The Laws of One Who Lost His Loan Document or Had It Erased, 4 Seifim: If a lender’s loan document is deteriorating and will ultimately be erased, he may arrange for witnesses and go to a court who will verify the document. RAMA: There are those that say that even if the document was completely erased the witnesses may testify since they know what is written in it. (Tur, in the name of the Rambam [the Rashbam] and Nikutei Yosef, Get Pashut). Witnesses testifying on a document may testify even if not in the presence of the parties. (Rabbeinu Yerucham in the name of the Rashbah). The witnesses on the document themselves, however, may not write another document for the lender. They may, however, come to court and the court will verify the document. How do they verify this document? They draft another document that says, “we, the court of so and so, so and so and so and so, had produced in front of us by so and so a document that was erased and had such and such date with so and so and so and so as witnesses.” If the court wrote that they processed the witnesses’ testimony and the testimony conformed, the lender can collect with this document that they wrote for him and he would not need any other verification. If the court did not write this language, the lender would need to bring an additional proof on the original witnesses until their testimony is verified. (Until here is the opinion of the Rambam) RAMA: If the witnesses are not verified, it is as if the lender produced an unverified document.(HaMagid, Chapter 23). There are those that say that it must state in the verification that they tore up the original document because otherwise we are concerned that the lender will go to another court who will process another verification for him and then he can collect and recollect. With respect to a gift document that was erased, however, we would write another document even though the first has not been torn up. RAMA: We would use the original date and not the date the court is writing the new document on (Beis Yosef in the name of Tosefos) . In a case where the gift was secured or in a case of a transaction document, however, the court must tear up the original document or write in the second document that this document is not intended to allow for collection from properties sold to a third party or to collect from unsold properties, but simply to enable this particular field to remain in the hand of the gift-recipient or the buyer and prevent the gift-giver or seller from reclaiming it.

1. One Can Write a Document In Any Language and the Laws of an Unspecified Coin, 15 Seifim: We do not write a loan document on something that is forgeable. If they wrote the document on it, the document is invalid, even with respect to an immediate collection. This is only true with respect to a loan document. With respect to a kinyan document, however, it would be valid (R"an Perek 2 Gittin). Any document that is not made as the Rabbis instituted is invalid, even if there is no rationale to invalidate it. Therefore, if one were to make a tied-up document today it would be invalid. (Nimukei Yosef according to the opinion of the Rosh). There are those that disagree and we rule like those opinions. (Ramban and many other Poskim) (See later 44:1).

1. The Date Must be Written in a Document and the Specific Laws of Postdating and Predating, 29 Seifim: The date of the loan must be written in the document so that we will know which third-party buyers the lender may collect from because the lender cannot collect from buyers that purchased from the borrower prior to the loan. If there is no date in the document, the lender may collect with the document but he cannot collect from third-party buyers because the buyers can argue that they purchased the land prior to the loan. There are those that say if the third-party purchased the land after witnesses had seen a written and signed document, the lender may collect from them. A receipt without a date is valid. The receipt-holder is in the superior position. (Teshuvos HaRosh, 20, 73)

1. The Laws of Summarizing the Document On the Last Line and How We Verify Erased and Hanging Letters, 11 Seifim: When writing a document, one must repeat the content of the document in the last line because ( we do not deduce anything from the last line - Tur ) due to the fact that the witnesses are not capable of ensuring that their signatures are immediately juxtaposed to the text. We are concerned that the witnesses left space the size of a line and a forger wrote what he wanted there. If the document did not review the content, it would not be disqualified over this, but we would not be able to deduce anything from the last line. RAMA: This view is not like those that say that the entire document would be disqualified because it was not written in the way the Rabbis had instituted, even though there is no logical reason to disqualify it. (Tur, in the name of the Rosh; Tosefos) This, that we do not deduce from the last line, is only in a situation where we are concerned of a forgery. If, however, the last line negatively impacts the party that produces the document, we would deduce from it because it was certainly not forged. (Nimukei Yosef, in the name of the Rivta and the Ra"a)

1. That Witnesses Must First Read the Document and the Laws of A Document on Paper and the Witnesses on Erased Paper, 23 Seifim: Witnesses sign on the bottom of the document and not from the sides or on top.

1. Witnesses That Said We Were Minors or We Were Disqualified or the Document Was Given on Trust and All the Laws of Verifying Documents, 38 Seifim: If one produces a loan document against his counterparty, so long as the document has not been verified the borrower can claim the document is a forgery and he never instructed anyone to write it. Even if the borrower confesses and says it is true that he instructed it to be written but he paid back, it was given on trust or he wrote it with the intention to borrow but he never borrowed or anything similar, he is believed because if he wanted he could have said the loan never occurred and the document is only verified on his say-so. He must swear a heses oath and will be exempt. If the lender later has the document verified, the document will be like any other document. (See later at the beginning of Siman 82).

1. One Who Claims the Document Was Given On Trust or Was Paid Back, 2 Seifim: If a lender says that the document in his possession was given on trust or was paid back, the lender owes other people money and has nothing else to pay them back with other than this document, the document contains a believability clause and the document was affirmed in court or was being held by a third party, the lender is not believed. Even if we were unaware at the time of his admission that he owed others money and we only discovered this later, he would not be believed since he is coming to negatively impact others. The lender is not even believed where he is negatively impacting himself too, such as where the document is for 200 and he only owes others 100. If after the lender said the document was given on trust, he paid back his creditor and he now wants to use this document to collect from the borrower we analyze the situation. If he said it was given on trust when his creditor came to collect from this document then we say his intent was certainly just to push away his creditor. (If, however, he confessed that the document was given on trust without his creditor making a claim) (Tur), then he cannot retract and collect with the document.

That We Write the Outline of Documents, 1 Seif: If a scribe desires to write outlines of documents so that they will be accessible to him, he may do so. He can write everything that is contained in the document: the names of the borrower and lender and the description of the money. He must leave the place for the date blank so that the document will not be predated. With respect to a document that was written for one loan and was paid back, however, one cannot re-borrow with it even if it was all on the same day and was therefore not predated because once the lien is waived one cannot re-borrow with the document. If the borrower paid back a portion of the loan, he cannot use the same document to re-borrow that portion because that lien on that portion was already waived. RAMA: There are those that say that concept of the lien being waived only applies for the original kinyan. Thus, if the borrower made a second kinyan, he may re-borrow with the document. (Mordechai, Perek 'Kol HaGet') This applies even if they did not actually make a kinyan but the borrower simply gave the document to the lender in front of witnesses according to the view that the witnesses of transfer are primary even with respect to ordinary documents. (Mordechai Perek 'HaKotev') (See later Siman 51.