The Process of Notarizing a Shetar
In the previous shiur, we discussed the rabbinic requirement of kiyum shetarot, notarization of contracts before collection. Fundamentally, the Torah regards every shetar as valid, but the Rabbanan demanded validation prior to collection. Did the Rabbanan completely nullify the shetar, requiring a reconstitution of the document under the supervision of beit din? Or did they ACKNOWLEDGE the enduring validity of a shetar and merely require a final check prior to legal action? This question affects the status of a shetar that has not (yet) been validated.
This shiur will explore a related question: How rigorous must the notarization process be? Presumably, if kiyum shetarot requires a reworking of the shetar, we would require HARD evidence to validate the shetar. By contrast, if the Rabbanan merely required a final “check-through,” the standards for signature verification may be more relaxed.
The gemara presents three leniencies in notarizing a shetar that are unacceptable in classic litigation. Firstly, we accept testimony based on information gathered BEFORE the eidim were of legal age. If eidim recognize the signatures of the contested shetar based on having witnessed these signatures when they were minors, we may accept their testimony. Typically, testimony must be based on evidence witnessed AFTER reaching the halakhically legal age of 13. The gemara attributes this leniency to the fact that kiyum shetarot is merely a Rabbinic demand (Ketuvot 28a).
Furthermore, the gemara allows witnesses who have testified about the shetar signatories to subsequently serve as judges on the beit din which validates the shetar. Typically, Halakha demands a separation between witnesses and judges: “Ein eid na’aseh dayan.” Once again, the gemara (Ketuvot 21b) attributes this leniency to the fact that kiyum shetarot is merely a Rabbinic requirement!
Most astonishingly, the gemara in Gittin (3a) allows ONE witness to verify the signatures of a shetar, even though normally a minimum of two eidim are required for halakhic testimony. The gemara presents the well-documented scenario of a shaliach who transports a get from overseas land and delivers it to a woman on behalf of her husband. Fearing the difficulty of notarizing this shetar, the Chakhamim demanded that the shaliach verify the signatures by claiming “befanai nechtam,” asserting that he personally witnessed the signatures. Alhough he is only a LONE shaliach, his testimony can validate a shetar, seemingly contradicting the conventional requirement of two witnesses. Once again, the gemara attributes this anomaly to the fact that kiyum shetarot is merely a Rabbinic requirement.
To be sure, in this last case, there may be an additional impetus for leniency – the concern that an aguna situation will ensue. If the standards are not relaxed to allow a single-witness verification, the get may never take effect and the woman may be trapped as an aguna. In fact, many suggest that this extreme allowance is driven by the aguna worry and not merely because kiyum shetarot is Rabbinic in nature.
Beyond these three leniencies, how relaxed are the standards for kiyum shetarot? One interesting indication is the possibility of verification through comparative analysis of signatures. As noted in a previous shiur, one method of notarizing a shetar is by comparing the signatures to signatures of these witnesses that appear on comparable documents. If the signatures appear identical, forgery is less likely and the shetar is verified. The gemara in Chullin (96a) dismisses this form of comparative evidence for use in conventional litigation. Is the willingness to employ it for shetar verification indicative of relaxed standards for kiyum shetarot since it is merely a final check through? Or is signature comparison a more superior and reliable form of forensics, such that its employment for shetar verification does not reflect a relaxation of standards?
An interesting position of R. Sherira Gaon (cited by the Shach Choshen Misphat 69:12) implies that signature comparison is a relaxation of standards based solely upon the view that kiyum shetarot is a mere check through. Although a previously signed shetar is the classic document issued for loans, a borrower can also issue a personally written confession, which is actionable even without signatories. This document, known as a “ketav yado,” must also be verified before enabling collection. R. Sherira Gaon claimed that this ketav yado CANNOT be validated by comparing the penmanship of the contested “document” to comparable texts written by the borrower. Since verification of ketav yado is a de’oraita requirement, it cannot be achieved through comparative analysis; this method was only allowed for a shetar whose verification is only a Rabbinically required stage. This position implies that comparative analysis is not valid in a classic context and was only advanced for kiyum shetarot since this process is merely a final check through.
A different method of gauging the “rigor” of kiyum shetarot is to probe the degree of legal initiative or creativity that can be adopted to discredit a shetar. Though typical cases are litigated by processed testimony, Halakha equips a beit din with numerous legal tools to determine the outcome of a litigation. For example, the rule of palginan dibura allows a beit din to selectively edit testimony to eliminate potentially ruinous elements and “save” the overall testimony. As the gemara in Sanhedrin (9b) determines, self-incriminating elements of testimony can be edited out so that the remainder of the testimony can be processed. If someone admits to committing adultery with a married woman, we can eliminate the incriminating element of the testimony (that HE was the adulterer) and process the remainder – that the woman committed adultery. Without this editing, the entire testimony would be inadmissible based upon the rule against self-incrimination.
Can this partial editing of testimony be employed to scuttle a shetar? The mishna (Ketuvot 18b) cites a situation in which the original eidim concede to signing the shetar but claim they were bribed and the shetar should be invalidated. Since their claim of bribery is self-incriminating, the entire testimony is discarded and the shetar can be subsequently validated. Tosafot (18b) question why the partial editing “palginan dibura” mechanism can’t be employed to selectively edit this testimony. The mechanism should allow their testimony about coercion to be admitted while the information as to HOW they were coerced can be excised. In the absence of self-incriminating evidence, their partial statement that they signed under coercion can be employed to disqualify the shetar.
One of the responses offered by Tosafot is that the mechanism of palginan cannot be employed to disqualify a shetar. If a contract is discredited by direct testimony, the shetar is disqualified. However, legally problematic testimony cannot be "edited" to allow the invalidation of shetar. Effectively, Tosafot claims that Beit Din will not engineer a disqualification of a shetar; they will avoid employing creative tools, even the same tools which can be employed to edit testimony in capital offenses yielding a death sentence. Perhaps Tosafot viewed kiyum shetarot as a final “checkup” of an otherwise valid shetar. If direct and frontal testimony is received, the shetar is discarded, but in the absence of direct testimony, Beit Din will not endeavor to cancel the shetar.
Similar sentiments emerge from a Tosafot (19a) about employing a “migu” to discredit a shetar. Migu is one of the most broadly applied halakhic tools and, in theory, should be available to invalidate a shetar. Yet Tosafot suggests that at least according to one position amongst the Amoraim, migu CANNOT be employed to cancel a shetar during the kiyum process. This is even more dramatic than the non-application of palginan. Presumably, the entire process of kiyum shetarot demands a conservative approach whereby the shetar is only disqualified if glaring and independently compelling testimony is offered. Beit Din will not re-engineer testimony or employ a migu to bolster the testimony of the discreditors of the shetar. This would strongly indicate that the Rabbinically demanded kiyum process is merely a final check through and not a rigorous process of reconstituting the shetar.