Translation:Shulchan Aruch/Choshen Mishpat/43
Paragraph 1- 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.
Paragraph 2- If the scribe omitted mentioning that the years in the document were from creation of the world, or even if he omitted the 5,000 or the hundreds and just wrote the ones, the document is valid. If, however, the scribe wrote the thousands and the ones, but omitted the hundreds or tens, the document is invalid.
Paragraph 3- If the scribe wrote thousands but omitted “five,” the document is valid.
Paragraph 4- If the scribe wrote “on the fourth, on the 20th day of Shevat,” and omitted “of the week,” the document is valid.
Paragraph 5- If the scribe wrote “on the 4th day of the week, on the 22nd of Tishrei,” and those days do not conform because Wednesday in Tishrei of that year fell out on the 24th, the document is still valid.
Paragraph 6- A document written in the borrower’s handwriting does not require a date.
Paragraph 7- Predated documents are invalid because the lender may illegally collect from third-party buyers. Thus, the Rabbis penalized the lender and he can only collect unencumbered land with a predated document as a gezeirah lest he collect from the predated date. If the borrower claims he paid back, we apply the same rules as we do for other documents. If the borrower claims the loan never occurred, the borrower is established as a fraudster. There are those that say that the document is completely invalid.
Paragraph 8-When do we say the lender may collect from unencumbered lands? Where the witnesses did not intentionally predate the document. There are those that say that witnesses are believed on this issue, even if we have a copy of their signatures from another source. The same applies to any error that witnesses often make and they are believed to say they erred. There are those that disagree. If, however, the witnesses intentionally predated the document, the lender can certainly not even collect from unencumbered land because the witnesses are invalid witnesses who signed falsely.
Paragraph 9- If a gift-document should have said “year 58” but said “year 57,” and it’s evident from within the document that it was the scribe’s error because the document says “give to so and so, my son-in-law,” and the recipient was not the giver’s son-in-law yet, and one of the signatories was a person who is pious and great in Torah, none of this would save the document from being disqualified. Nevertheless, if the witnesses are around and we don’t have their signatures from another source, they can sign another document from this second date. If we have their signatures from another source, they are no longer believed, but the recipient of the gift is believed to say it was an error migu that he could have said it was a good document and that the kinyan was made in year 57.
Paragraph 10- A predated document that stated before the signatures, “this document was written on such and such date but not signed until such and such date,” is a valid document.
Paragraph 11- Even if the witnesses had observed the lender lend to the borrower and the borrower told them to write and sign a document and give it to the lender, if there was no kinyan, the witnesses would write the date the document was handed over and not the day of the loan.
Paragraph 12- Postdated documents are valid because they hurt the document-owner’s ability in that he can now only collect from the date of the document. The document is valid, even if it did not state that it was postdated. When is this true? Where the document says “that I will acquire.” If, however, it does not say “that I will acquire,” the document is invalid unless it explicitly says “we wrote the document and delayed it.” One should not delay any document in the first instance because it appears like a falsehood.
Paragraph 13- This that a postdated document is valid is only with respect to loan documents. With respect to transactional documents, however, even a postdated document is invalid unless the delay was explicit.
Paragraph 14- A document whose date falls out on Shabbos or the 10th of Tishrei is considered a postdated document and is valid. We are not concerned that it may be predated and was really written on Sunday or the 11th of Tishrei. Rather, we uphold the status of the document because it’s well known that one cannot write a document on the Shabbos or the 10th of Tishrei and that is why they delayed it. There are those that say that if the borrower tells the lender to swear to him, the lender is obligated to swear. This is only true for a verified document. If, however, the document was unverified, the document-holder has the burden of proof.
Paragraph 15- Any document that appears in front of us is assumed to be given on the date that it is written except where something negative occurred that calls its status into question, such as where the document fell, in which case the document-holder would not be able to collect if there was no kinyan until he brings a proof that he received the document on the date that was written because a negative occurrence affected the document’s status.
Paragraph 16- If a document was written at night and signed on the following day, the document is valid because the day follows the night. If, however, it was written by day and signed at night, the document is invalid. When is this true? When they were not dealing with that topic. If, however, they were dealing with the topic, the document is valid. This is only where the party did not immediately take the item with a kinyan. If, however, the party took the item with a kinyan, the document is valid, even they did not sign until much later. Therefore, if witnesses observed a kinyan and delayed writing until later and they remember the date of the kinyan, they should write the date from that day. If they do not remember, they should write the date the document was written.
Paragraph 17- There are those that say that this that a document is valid where they were dealing with that topic is only with respect to loan documents. With respect to obligatory documents- where a party obligates himself with a kinyan or document- however, the document would not be valid.
Paragraph 18- When the witnesses write the date of the kinyan, they juxtapose the date of the kinyan [note: version of the Shach and Sma] to that day. They write, “we made a kinyan from so and so on such and such date and we wrote and handed over the document to so and so.” When they write the current date, they juxtapose the writing to the date. They write, “we made a kinyan from so and so and we wrote and signed on this date and gave it to so and so.” If they don’t do it this way, it appears like a falsehood. If, however, they simply wrote “in such and such place we made a kinyan from so and so” it does not appear like a falsehood.
Paragraph 19 If the witnesses do not remember the date of the kinyan, they cannot say we are certain that it was in Tishrei but we are just not sure what date, so we will write the beginning of Cheshvan, because that has the appearance of a falsehood. There are those that say that if the witnesses remember that they made a kinyan in the beginning of Tishrei, the middle of Tishrei or the end of the Tishrei, they can write the first-third of the month, the middle-third or the last-third.
Paragraph 20- If witnesses received testimony in one country and were documenting their testimony in another country, they do not write the place they received the testimony but the place they are signing. This is only true where they are not writing the date of the kinyan, but the date of the writing. If, however, they remember the date of the kinyan and are writing it, then they should write the locale where the kinyan took place, because if they were to write the place where it was written, they would be found to be fraudsters and will be disqualified. When they write the place of documentation, they write, “this is what so and so told us and we wrote it in such and such place.” If, however, they are writing the place where the testimony was handed over, they write “so and so told us” or “we made a kinyan from so and so in such and such place and we wrote and signed it and handed it over to so and so.”
Paragraph 21- This that we said that the witnesses write the place of documentation even if the kinyan was in another place, is only where there is no distinction in the currency used in the place of the kinyan and the currency used in the place of the documentation or even if there is a distinction but they write in the document “the currency that is used in such and such place.” If, however, there is a distinction between the currency used in the place the testimony was given and the place of the kinyan and the document does not say it is the currency used in such and such place, the witnesses should only write the place where the testimony was received because the party owes the currency of that locale and if they were to write another place, the party would owe the currency of the place where the document was written.
Paragraph 22- A document that does not state where it was written is still valid.
Paragraph 23- If Reuven and Shimon both had a document against Levi and on Reuven’s document it said 5 Nissan and on Shimon’s it simply said Nissan, and Levi only has one field that cannot cover both loans, we would give the field to Reuven because Shimon’s document may have been written at the end of Nissan. Similarly, Shimon cannot collect from third-party buyers who purchased land from Levi in Iyar or later because the buyers can tell Shimon that they left him a place to collect his loan- the field that Reuven collected illegally because Shimon’s document was before Reuven’s. Therefore, if Reuven and Shimon were to write a joint power-of-attorney, they would be able to collect from third parties who purchased land in Iyar or later.
Paragraph 24- Even if a receipt were to omit the document-witnesses and the date of the document, since the sum of money in the document and receipt are identical we say the receipt was written on this document.
Paragraph 25- If a document dated Nissan was produced against someone, and that individual produces a waiver document dated 18 Nissan, the waiver has the power to nullify the debt.
Paragraph 26 If Reuven produced a document against Shimon dated on a specific date and Shimon produces a receipt on that document with the same date, the document-holder is in the inferior position.
Paragraph 27- If Reuven produced a loan document on Shimon dated 5 Nissan and Shimon produces a receipt that was written on 5 Nissan which states that Reuven waived all claims he had on Shimon until that date, Reuven may collect with such loan document because common usage of “until” does not include that date. If, however, the document stated that Reuven waived all claims that he had against Shimon until now, the matter is in doubt and we would not take away money based on doubt.
Paragraph 28- If two documents were created in a leap year and one simply says Adar and the other says the second Adar, and the borrower does not have enough property for both loans, we would give the property to the document that says Adar. If both documents simply said Adar, it is as if they were both written in the first Adar and we would give the land to the document-holder with the earlier date of the month. See Orach Chaim Siman 427 regarding how we write it. See Even Haezer Siman 126. Any date that is written in a document, such as “until Pesach” or “until the harvest” is judged the same way we judge the case with respect to vows.
Paragraph 29- If a document says “until after Pesach,” that means until most of the days between Pesach and Shavuos had passed.