The Rabbinic Requirement to Notarize a Document
One of the most fascinating halakhic instruments is a shetar (contract). Some shetarot launch halakhic transformations. For example, a kiddushin contract (shetar kiddushin) can transform the status of a woman in a similar fashion to kiddushin money. On the other hand, many shetarot are merely evidentiary and are not employed to cause any halakhic result. These types of contracts are known as shetarei re’ayah and most often are relevant to loans. The borrower (loveh) deposits a shetar with the lender (malveh) thereby empowering him to collect the loan based on the testimony contained within the shetar re’ayah.
A well-known statement of Reish Lakish (Gittin 3a, Ketuvot 18b) asserts that every shetar is deemed valid testimony even without classic processing. In an ideal world, forgery is infrequent and every shetar is assumed to be authentic. Unlike verbal testimony, which must be interrogated by the beit din, testimony written in a contract is assumed to be veritable.
Although Reish Lakish describes an ideal condition, the Chakhamim acknowledged concern over forged shetarot and therefore required notarization of a shetar prior to its employment to collect funds. This process is known as kiyum shetarot and entails various options of accreditation. Thus, although at a Biblical level a shetar is considered genuine testimony, the Chakhamim required secondary verification by the beit din.
What is unclear is the mechanics of this notarization requirement. Is this merely a final checkup for the shetar before the loan is collected, an attempt to verify the signatures one final time to ensure against forgery? Or did the Rabbanan completely discredit a non-verified shetar, essentially requiring that the shetar be rewritten under the supervision of beit din? According to this second view, even though mi-de’orayta a shetar is assumed to be valid, the Rabbanan declared it invalid and essentially meaningless until beit din reconsiders its validity. These two different perspectives greatly impact both the mechanics of kiyum shetarot as well as the status of a shetar prior to notarization.
The mishna in Ketuvot (18b) presents a situation in which the original signatories of the shetar appear in beit din at the time of notarization. They claim that they signed the shetar, but assert that they were coerced to sign about a loan that never occurred. Under certain conditions, this testimony is accepted, and the shetar is in fact invalidated based on their testimony. Our willingness to accept this testimony contradicts the well-known principle of “keivan she-higgid,” which prevents witnesses from recanting their testimony (see here for an elaboration of this halakha). The original signatures of the witnesses imply that the loan occurred and that their signatures were appropriate. The constraints of keivan she-higgid should prevent a secondary testimony that asserts a coerced signature!
Perhaps our willingness to accept this secondary testimony despite their original contrary testimony, indicates that a pre-kiyum shetar has been completely nullified by the Rabbanan. The rabbinic requirement for kiyum effectively reduces a shetar to a meaningless piece of paper. The original signatures are irrelevant and the original eidim have not yet offered any halakhically meaningful testimony. Upon entering beit din at the moment of kiyum, they are essentially offering their “first” testimony about this loan, and their comments are therefore accepted.
An additional method of gauging the status of a pre-kiyum shetar is to probe its utility in validating other shetarot. One of the methods of notarization is comparing the signatures of the shetar in question to signatures of other documents. If the signatures of the contested shetar are identical to the signatures of the very same witnesses which appear on other documents, we can presume that no forgery has occurred. Can we employ a pre-kiyum shetar as a “baseline” to verify a different shetar affixed with the same signatures? Most Rishonim deny this ability, but the Ramban’s comments on Ketuvot (19a) suggest that even non-verified shetarot can be used as a baseline to notarize other shetarot with similar signatures. This would indicate that a pre-kiyum shetar has some residual validity, as it can be offered as evidence to verify a contested shetar with similar signatures.
A further indicator of the status of a pre-kiyum shetar may be the manner of treating a non-notarized shetar. If the attempts to validate the shetar have failed or testimony has asserted that the shetar was forged, is the failed shetar immediately disposed of? Or is the shetar “suspended” and collection barred, while the shetar is retained for possible subsequent notarization? Perhaps the shetar cannot enable actual collection but will, under certain circumstances, allow the claimant to seize funds. Rashi (Ketuvot 19a) claims that a shetar that has failed notarization is discarded, but the Ritva suggests that it is merely suspended. This debate may reflect the status of a pre-kiyum shetar. If the Rabbanan completely nullified a non-notarized shetar, a contract which lacks or has failed kiyum has no meaning and can be thrown away. By contrast, the Ritva may have claimed that the Rabbanan did not absolutely nullify a non-notarized shetar. After all, every shetar has validity on a de’orayta level. The Rabbanan merely required a final check to allow collection. If that check fails, collection is stalled, but the shetar still retains its original validity; it cannot simply be discarded.
Finally, an intriguing position of the Rambam may affirm that he maintained that a non-notarized shetar is meaningless and that the kiyum process entails reconstituting the entire document. In the 8th perek of Hilkhot Eidut, the Rambam claims that if the original witnesses participate in the notarization process, they must remember the original testimony. If they have no recollection of the original event – even if they can verify the authenticity of their signatures – the shetar is disqualified. If a pre-kiyum shetar were effectively a viable shetar that merely requires a final check, it would illogical to demand that the witnesses recall their original testimony. Evidently, then, the Rambam believed that kiyum essentially reformulates the shetar. If the original eidim are present, that reformulation requires a new issuing of eidut, mandating that the eidim actually remember their testimony! Of course, it is still challenging to understand why the shetar can be notarized if the original eidim are not available even without reconstituting the original eidut.