Amount of Lines that Invalidate a Document

The Gemora asks: And how much is the space that disqualifies a document?

Rav Yitzchak ben Elozar said: As much space as would be required for the writing of “lecha, lecha” above each other. [The “lamed” is a tall letter, and that should not touch the “end of chaf,” whose leg hangs low.] This indicates that he is of the opinion that the limit is two written lines and four blank spaces (for each of those words needs a blank space above for the “lamed” and a blank space below it for the “end of chaf”).

Rav Chiya bar Ammi said in the name of Ulla: As much space as would be required for the writing of a “lamed” on the top line and an “end of chaf” on the lower line. This indicates that he is of the opinion that the limit is two written lines and three blank spaces (for there is no “lamed” on the bottom line, and there is no “end of chaf” on the upper one).

Rabbi Avahu said: As much space as would be required for the writing of “Baruch ben Levi” on one line. Evidently he holds that the limit is one written line and two blank spaces (one space above for the “lamed,” and one space below for the “end of chaf”).

The commentators ask on Rabbi Avahu’s opinion: How can he maintain that the document is invalidated with one line of text and two spaces (one above and one below it) when the Gemora above clearly ruled that it is a space of two lines of text that invalidate a document!?

Some Rishonim answer that Rabbi Avahu disagrees with Chizkiyah and hold that the amount of space needed to disqualify the document is not measured according to the handwriting of the witnesses; rather, it is based upon the handwriting of the scribes. Accordingly, it is sufficient with one line of text and two empty spaces, for the scribe may manage to use the space for two lines of text with an empty space between them. According to this explanation, Rabbi Avahu agrees with the braisa above, which ruled that a space of two lines of text invalidates a document.

Tosfos Ri”d answers that Rabbi Avahu maintains that the space of two lines of text which invalidate a document is without any space above them or below them; it is referring just to the lines of text and the space between them (not like Rav Nachman bar Yitzchak). According to this interpretation, Rabbi Avahu’s amount and the ruling of the braisa are precisely identical, for one line of text with two spaces is exactly the same as two lines of text with one space between them.

The Ritv”a writes that Rabbi Avahu holds that the two lines mentioned above that invalidate a document refer to two blank spaces surrounding one line of text.

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Invalidated Contracts and Gaps in Sechach

Last Line of the Contract

Rabbi Yochanan says that a contract must review its content in the last line, and Rav Amram explained that this is because we disregard anything in the last line before the signatures.

The Rishonim explain that we fulfill this by writing vkanina – and we (the witnesses) received authorization regarding everything stated above.

The Rosh rules that if a contract does not summarize its content at the end, it does not conform to the required format of a contract, and is invalid.

The Ramban rules that it is valid, but we disregard whatever is written in the last line.

The Shulchan Aruch (HM 44:1) rules like the Ramban.

The Rishonim state that our custom is to fill in the last line with the phrase “v’hakol sharir v’kayam” - and all of this is in force and validated.

The Rashbam says that this phrase is a form of validation, and gives the line above it full legal force.

Other Rishonim disagree and state that even with our contracts, the last line has no legal validity.

Rabbeinu Tam explains the form of a get, in which we write the following last 2 lines:
v’dain etc. – this should be a contract of divorce
k’das moshe v’yisrael – as instituted by Moshe and Yisrael
Rabbeinu Tam says that the first of these lines is an integral part of the get, and not just a review of the earlier text. The last line takes the place of the validation of sharir v’kayam, and gives the preceding line legal validity.

The Rosh says that nowadays we require a contract to end with sharir v’kayam, and any contract without it is invalid. We therefore give all the preceding lines full legal validity.

The Shulchan Aruch (HM 44:9) rules like the Rosh.

See Shach (10-12, 21) for a deeper discussion of the rationale and ruling regarding sharir v’kayam.

The Gemora explains that a contract with two blank lines is invalid, since we are concerned that one will put false information in one of the blank lines.

The Ramban explains that on a contract with more than one blank line, we are concerned that there may have been more than two blank lines, and the last lines are false.

The Ri Migash says that even if we see nothing that would indicate that (no content at the end to the advantage of the creditor), the contract is invalid, since he could have forged part of the contract.

The Rema says that this is a fine on the holder of the contract, since he made forgery accessible.

1 ½ lines

The Gemora discusses whether a contract with 1 ½ blank lines before the signatures is valid or not, and resolves that it is not.

Tosfos (162b iba’ya) debates what was the case that the Gemora was discussing. Tosfos says that if the contract finished in the middle of a line, and the remainder of that line, in addition to the next line, was left blank, such a contract is clearly invalid, since the holder of the contract can fill in the space after the text of the contract. The other option is a case where the contract ended at the end of a line, a blank line was left, and the witnesses started signing half way through the next line. Tosfos says that such a case should clearly be valid, since the only line that can be filled in is the one before the signatures, and we disregard that line. Tosfos concludes that the Gemora’s question was a width of 1 ½ lines, similar to the measure of one and two lines, discussed in the braisa.

Filling in with Relatives

The Gemora cites Chizkiyah’s statement that if one filled in blank space in a contract with witnesses that are relatives to the parties, the contract is still valid.

The Rishonim debate in what context Chizkiyah made his statement. Rabbeinu Chananel says that Chizkiyah is referring to a get kereyach – a bald contract, i.e., a closed contract (mekushar), which is missing witnesses. Such a contract must be signed by three witnesses on each of its enclosures. Chizkiyah is saying that if one used relatives for the extra signatures necessary, the contract is valid.

The Mishna in Gittin (81b) records a dispute between Rabbi Akiva and Ben Nanas about this case and Chizkiyah is ruling like Rabbi Akiva, who only allows relatives to fill in the necessary signatures.

The Rashbam challenges this position, since Chizkiyah, an Amora, would not need to rule or discuss a case that was already discussed in a Mishna, nor would he need support from a braisa, since he is supported by Rabbi Akiva in a Mishna.

Rather, the Rashbam says that Chizkiyah is discussing the case of our Gemora, i.e., a contract that had too much blank space before the signatures, and is stating that if one filled in this space with related witnesses, the contract remains valid.

The Mishna in Makkos (5b) states that if a group of witnesses testify, and one is found to be invalid, the whole testimony is invalidated.

Tosfos (162b nimtza) cites different opinions regarding how to reconcile this Mishna with Chizkiyah’s statement, validating a contract in which relatives signed to fill in blank space.

The Rambam (Edus 5:6) rules that a contract with two valid witnesses is assumed valid, even if the remaining witnesses are not valid. If the witnesses are available, or if others were there, we investigate whether they signed together. If they signed together, the contract is invalid, but it is otherwise valid.

Rav Chaim Brisker explains that the Rambam considers witnesses on a contract to have two parts to their testimony – the witnessing, which takes place at signing, and the testimony, which occurs when the contract is brought to court. When a contract is brought to court, the Gemora says that witnesses signed in a contract are considered to be fully examined and accepted, and they therefore exist independently, and the invalid witnesses do not affect the valid ones’ testimony. However, if they signed together, they have joined together in their witnessing, and therefore fall under the ruling in Makkos, invalidating the contract they signed.

Invalid Schach and Gaps

Chizkiyah cites the rules for gaps in s’chach, and invalid s’chach, as a precedent for his ruling that invalid witnesses can be better than blank space in a contract.

Tosfos explains that the measures given for invalid s’chach (4 tefachim) and gaps (3 tefachim) are only in a case where these areas go from one end of the sukkah to the other, and thereby make the valid s’chach not be surrounded by three walls, or when there isn’t the minimum area of valid s’chach (7 x 7 tefachim). However, if the valid s’chach surrounds these areas, or if these areas are in a location where the valid s’chach has 3 walls around it, and there is at least 7 x7 tefachim of valid s’chach, they do not invalidate the sukkah, but only their location itself.

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The Testimony of a Shtar

By: Reb Yonatan Sapir

The Mefarshim are bothered how does a shtar (document) work? Chazal have a rule that testimony must be said orally and not written. If this is the case, how can we rely upon the testimony of a shtar?

There are a number of different answers to this question. Rabeinu Tam says the prohibition of writing testimony only refers to someone who is mute. Anyone who can say testimony may also write testimony. This follows a principle taught by karbonos. We are commanded in the Torah to mix the meal offering with oil. Chazal tell us that it if there is enough oil that it can be mixed, the mixing is not necessary. The same is true here; as long as a person can speak, speaking is not necessary.

The Rambam is of the opinion that testimony in a shtar is only Rabbinic. According to Biblical law, a shtar is invalid. Since, however, they are necessary for the functioning of society, the Rabbis decreed that this form of testimony should be considered valid.

Rashi and the Baal HaMaor have a different explanation. They explain that a shtar is written by the person obligating himself in some fashion (i.e. a borrower or a seller). The witnesses here are not regular witnesses in a court case, rather, they are agent of an obligated party who which to obligate themselves by means of a shtar. This form of testimony is not what the Torah was referring to when it disqualified written testimony.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on the dispute mentioned above regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

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Migu with an Impaired Document

The Mishna (Kesuvos 87a) had stated: If a woman impairs her kesuvah (she admitted that a portion of it was paid), she can only collect the remaining portion if she takes an oath that the complete kesuvah has not been paid.

The Shitah Mekubetzes cites Rabbeinu Yonah, who asks the following question: Why is it necessary for her to take an oath? Shouldn’t she be believed with a migu; “Believe me that I was only paid in part, for if I would want to lie, I could have said that I wasn’t paid at all”?

He answers: There is a principle that we do not believe someone with a migu to extract money from someone else. Secondly, we do not apply the principle of migu to exempt someone from taking an oath.

The Ketzos Hachoshen (82:10) asks: There are several Rishonim who maintain that we do apply the principle of migu to extract money in cases when a legal document is present; since her kesuvah document is intact, let us use the migu to collect the remaining portion of her kesuvah?

He answers: Since the woman admitted that the kesuvah is impaired, she will no longer be allowed to collect from encumbered properties (even from the portion that has not been collected). Only a valid document that has the ability to collect from encumbered properties can assist a migu to extract money. This document will not help her in this respect and therefore, she is compelled to take an oath.

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