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Edut - Chapter 7

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Edut - Chapter 7

1A relative may give testimony with regard to his relative’s signature.1אמֵעִיד קָּרוֹב עַל כְּתַב יְדֵי קְרוֹבוֹ.
What is implied? There was a legal document which Reuven and Shimon signed as witnesses. They died or traveled overseas. Reuven’s son came and testified: “This is my father’s signature,” and Shimon’s son came and testified: “This is my father’s signature.” It is as if they are two acceptable witnesses who are not related to the witnesses who have signed.2כֵּיצַד? שְׁטָר שֶׁעֵדָיו רְאוּבֵן וְשִׁמְעוֹן, וּמֵתוּ אוֹ הָלְכוּ לִמְדִינַת הַיָּם, וּבָא בְּנוֹ שֶׁל רְאוּבֵן וְאָמַר 'זֶה כְּתַב יָדוֹ שֶׁל אָבִי', וּבָא בְּנוֹ שֶׁל שִׁמְעוֹן וְאָמַר 'זֶה כְּתַב יָדוֹ שֶׁל אָבִי' - הֲרֵי אֵלּוּ כִּשְׁנֵי עֵדִים שֶׁאֵינָן קְרוֹבִים.
If a third witness3 joins together with them and testifies with regard to the two signatures,4 the authenticity of the legal document is validated.וְאִם יִצְטָרֵף עִמָּהֶם שְׁלִישִׁי, וְהֵעִיד עַל כְּתַב יְדֵי שְׁנֵיהֶן - הֲרֵי נִתְקַיֵּם הַשְּׁטָר.
2The statements of the following individuals are acceptable when, as adults, they testify with regard to what they observed as minors.5 A person’s words is accepted when, as an adult, he states: “This is the signature of my father....”, “This is the signature of my teacher...”, “This is the signature of my brother which I learned to recognize when I was a minor.”6בוְאֵלּוּ מִדְּבָרִים שֶׁנֶּאֱמָנִין הַגְּדוֹלִים לְהָעִיד בְּגָדְלָן מַה שֶׁרָאוּ בְּקָטְנָן: נֶאֱמָן אָדָם לוֹמַר כִּשֶׁהוּא גָּדוֹל 'זֶהוּ כְּתַב יָדוֹ שֶׁל אַבָּא' וְ'זֶה כְּתַב יָדוֹ שֶׁל רַבִּי', וְ'זֶה כְּתַב יָדוֹ שֶׁל אָחִי, שֶׁהָיִיתִי מַכִּיר בִּכְתַב יָדָם כְּשֶׁהָיִיתִי קָטָן'.
The above applies, provided he is joined by another person who learned to recognize these signatures while an adult.7וְהוּא שֶׁיִּצְטָרֵף עִמּוֹ אַחֵר שֶׁמַּכִּיר כְתַב יָדָם כִּשֶׁהוּא גָּדוֹל.
3When there is a legal document on which Reuven and Shimon signed as witnesses and two others came and testified to the authenticity of the signatures of both Reuven and Shimon,8 the legal document is validated.גשְׁטָר שֶׁעֵדָיו רְאוּבֵן וְשִׁמְעוֹן, וּבָאוּ שְׁנַיִם וְהֵעִידוּ שְׁנֵיהֶם שֶׁזֶּה כְּתַב יָדוֹ שֶׁל רְאוּבֵן וְזֶה כְּתַב יָדוֹ שֶׁל שִׁמְעוֹן - נִתְקַיֵּם הַשְּׁטָר.
If however, one testified to the authenticity of Reuven’s signature and the other testified to the authenticity of Shimon’s signature, the document is not validated. The rationale is that two witnesses must testify with regard to both witnesses’ signature.אֲבָל אִם הֵעִיד זֶה עַל כְּתַב יְדֵי רְאוּבֵן, וְהַשֵּׁנִי הֵעִיד עַל כְּתַב יְדֵי שִׁמְעוֹן - לֹא נִתְקַיֵּם הַשְּׁטָר, לְפִי שֶׁצָּרִיךְ שְׁנֵי עֵדִים עַל כְּתַב כָּל אֶחָד מִשְּׁנֵיהֶם.
If there is a third witness who testifies with regard to the authenticity of both Reuven’s and Shimon’s signature, the document is validated.וְאִם יֵשׁ שְׁלִישִׁי מֵעִיד עַל כְּתַב רְאוּבֵן וְשִׁמְעוֹן כְּאֶחָד, נִתְקַיֵּם.
4When one witness says: “This is my signature,”9 and he and another witness testify with regard to the signature of the other witness, the document is not validated, for three fourths of the money mentioned in the legal document is dependent on the testimony of one person.10דאָמַר הָרִאשׁוֹן 'זֶה כְּתַב יָדִי', וְהֵעִיד הוּא וְאַחֵר עַל כְּתַב יְדֵי הַשֵּׁנִי - לֹא נִתְקַיֵּם הַשְּׁטָר, לְפִי שֶׁנִּמְצָא שְׁלֹשֶׁת רִבְעֵי הַמָּמוֹן שֶׁבַּשְּׁטָר תָּלוּי בְּעֵדוּת הָאֶחָד.
Similarly,11 if the son or the brother of the first witness testifies with another person with regard to the signature of the second witness, the document is not validated, because three fourths of the money is dependent on the testimony of relatives.וְכֵן אִם הֵעִיד אָחִיו אוֹ בְּנוֹ שֶׁל רִאשׁוֹן עִם אַחֵר, עַל כְּתַב יְדֵי הַשֵּׁנִי - לֹא נִתְקַיֵּם, שֶׁהֲרֵי שְׁלֹשֶׁת רִבְעֵי הַמָּמוֹן תָּלוּי בְּעֵדוּת הַקְּרוֹבִים.
5When two witnesses sign a legal document and one of them dies,12 it is necessary that two witnesses testify with regard to the authenticity of the witness who died.השְׁנַיִם הַחוֹתְמִין עַל הַשְּׁטָר, וּמֵת אֶחָד מֵהֶן - צָרִיךְ שְׁנֵי עֵדִים לְהָעִיד עַל כְּתַב יָדוֹ שֶׁל מֵּת.
If there is only one other witness who recognizes his signature in addition to the witness who is alive, the latter should write his signature, even on a shard,13 in the presence of two witnesses and send it to the court so that his signature will be validated.14 In that instance, it is not necessary for him to declare that it is his signature. Accordingly, he and another person can testify with regard to the signature of the deceased person so that his signature will be validated even though he is not present.15וְאִם לֹא נִמְצָא אֶלָא עֵד אֶחָד עִם זֶה הָעֵד הַחַי - הֲרֵי זֶה הַחַי כּוֹתֵב חֲתִימַת יָדוֹ בִּפְנֵי עֵדִים אַפִלּוּ עַל הַחֶרֶס, וּמַשְׁלִיכוֹ בְּבֵית דִּין, עַד שֶׁתֻּחְזַק כְּתַב יָדוֹ בְּבֵית דִּין, וְלֹא יְהֶא צָרִיךְ לוֹמַר שֶׁזֶּה כְּתָב יָדוֹ, וְיָעִיד הוּא וְהָאַחֵר עַל כְּתַב יְדֵי הַמֵּת, וְיִתְקַיֵּם כְּתַב יָדוֹ שֶׁלֹּא בְּפָנָיו.
6The following principles apply it three judges sit together to validate the authenticity of a legal document, two of them recognize the signatures of the witnesses and one of them does not. Before the judges sign the validation, the two witnesses who recognize the signatures may deliver testimony before the third judge.16 Then they may sign the validation, for witnesses may serve as judges in a matter that is a Rabbinic ordinance, as we explained.17ושְׁלוֹשָׁה שֶׁיָּשְׁבוּ לְקַיֵּם אֶת הַשְּׁטָר, שְׁנַיִם מֵהֶן מַכִּירִין חֲתִימוֹת יְדֵי עֵדִים וְאֶחָד אֵינוֹ מַכִּיר: עַד שֶׁלֹּא חָתְמוּ - מְעִידִין בְּפָנָיו וְחוֹתֵם; שֶׁהָעֵדִים נַעֲשִׂים דַּיָּנִים בְּדָבָר שֶׁהוּא מִדִּבְרֵיהֶם, כְּמוֹ שֶׁבֵּאַרְנוּ.
If the two witnesses who recognize the signatures sign the validation before testifying, they may not testify in the presence of the third judge and have him sign. For at the time they signed, only those two recognized the signature of the witnesses.18 A legal document may be validated only when all three judges recognize the signatures or witnesses deliver testimony on the signatures before each one of them.אֲבָל אַחַר שֶׁחָתְמוּ - אֵין מְעִידִין בְּפָנָיו וְחוֹתֵם; שֶׁהֲרֵי בְּעֵת שֶׁחָתְמוּ לֹא הָיוּ הַמַּכִּירִין אֶלָא שְׁנַיִם, וְאֵין מְקַיְּמִין בִּשְׁנַיִם אֶלָא עַד שֶׁיִּהְיוּ שְׁלָשְׁתָּן מַכִּירִין, אוֹ יָעִידוּ הָעֵדִים עַל הַכְּתָב בִּפְנֵי כָּל אֶחָד וְאֶחָד.
7The following law applies when the two witnesses who signed a legal document died19 and two others came and testified, saying: “This is their signature, but they signed under duress,” “...they were minors,” or “...they were unacceptable as witnesses.”20 Even though there were other witnesses who testify with regard to their signatures21 or their signatures could be recognized from another legal document concerning which a protest was raised and afterwards, it was validated by the court,22 the legal document is not validated.23 Instead, the two witnesses who signed the document are balanced against the two who testified that they were unacceptable as witnesses, and the legal document may not be used to expropriate money.24זשְׁנַיִם שֶׁהָיוּ חֲתוּמִין עַל הַשְּׁטָר וָמֵתוּ, וּבָאוּ שְׁנַיִם וְאָמְרוּ 'כְתַב יָדָם הוּא זֶה, אֲבָל אֲנוּסִים הָיוּ', 'קְטַנִּים הָיוּ', 'פְּסוּלֵי עֵדוּת הָיוּ', אַף עַל פִּי שֶׁיֵּשׁ שָׁם עֵדִים אֲחֵרִים שֶׁזֶּה כְּתָב יָדָם, אוֹ שֶׁהָיָה כְתַב יָדָם יוֹצֵא מִשְּׁטָר שֶׁקָּרָא עָלָיו עַרְעָר וְהֻחְזַק בְּבֵית דִּין - הֲרֵי זֶה לֹא נִתְקַיֵּם; אֶלָא מַעֲמִידִין הַשְּׁנַיִם שֶׁבַּשְּׁטָר כְּנֶגֶד הַשְּׁנַיִם שֶׁהֵעִידוּ עֲלֵיהֶן שֶׁהֵן פְּסוּלִין, וְאֵין גּוֹבִין בּוֹ כְּלוּם.

Quiz Yourself on Edut Chapter 7

Footnotes
1.

The two witnesses may not, however, be related to each other (Sefer Me’irat Einayim 46:46). They may, however, both be related to the witnesses to the legal document (Rabbenu Nissim, as quoted by the Sefer Me’irat Einayim 46:46). Needless to say, a relative’s testimony is not accepted with regard to the signatures of the principals to a legal document (Siftei Cohen 46:47).
The Shulchan Aruch (Choshen Mishpat 46:18) quotes a difference of opinion among the Rabbis if it is acceptable for them to be related to the judges or not.

2.

The rationale is that the two testimonies are considered to involve separate matters entirely. The father’s testimony concerns the subject mentioned in the promissory note, while the son’s testimony concerns his father’s signature and not the subject of the note. Hence one is not affected by the other.

3.

For the testimony of two witnesses is necessary to validate each of the signatures, as stated in Halachah 3.

4.

Alternatively, if each one is familiar with the signature of the other father, the document can be validated (Maharshal).

5.

As Ketubot 28a explains, since the necessity for validating the authenticity of the signatures of the witnesses is a Rabbinic requirement, our Sages showed leniency and accepted testimony which is otherwise inadmissible (Radbaz; Kessef Mishneh). When, by contrast, Scriptural Law requires testimony, a witness must be acceptable both when he observes and when he delivers his testimony (see Chapter 14, Halachah 3).

6.

The Shulchan Aruch (Choshen Mishpat 46:17) quotes a difference of opinion among the Rabbis if these concepts apply only with regard to the signatures of these three individuals - for these are the three signatures with which a person is most likely to be familiar, or if they apply with regard to any individual and the Rambam was merely citing the most likely examples.

7.

If, however, both witnesses require this leniency, their testimony is unacceptable.

8.

I.e., both witnesses testify to the validity of both signatures.

9.

In which instance, his word is accepted, for he is testifying to the matters stated in the legal document, not validating his signature, as stated in the notes to Chapter 6, Halachah 2.

10.

I.e., the effect of the witnesses’ testimony must be equally balanced, as implied by Deuteronomy 19:15: “The matter will be established on the basis of the testimony... of two witnesses.” Ketubot 21a states: “Half on the basis of one and half on the basis of the other.”

11.

When the first witness testifies with regard to his own signature.

12.

Or travels overseas (Sefer Me’irat Einayim 46:35).

13.

The commentaries state that there is an advantage to signing on a shard, because afterwards, that shard could not be used for a legal document. If, however, he would sign on a piece of paper or parchment, that paper could be misappropriated and a legal document illicitly written on top of it. See Lechem Mishneh and others.

14.

I.e., these witnesses will compare his signature on the shard to his signature on the legal document and on that basis, validate the signature on the legal document.

15.

Since he is not testifying with regard to his own signature, that half of the money is not considered to be dependent upon his testimony.

16.

Since the necessity for the validation of the signatures of the witnesses is a Rabbinic ordinance, our Sages were lenient and accepted the testimony even though it was delivered in the presence of only one judge (Kessef Mishneh).

17.

Chapter 5, Halachah 9.

18.

Thus they signed the validation in error. For at that time, the third judge was unable to validate the document.

19.

If, however, the witnesses are alive, they certainly can be challenged. And if they are challenged and proven to be unacceptable as witnesses, the legal document is nullified and torn up [Ramah, (Choshen Mishpat 46:37)]. There are, however, other opinions which maintain that even if the witnesses are personally disqualified, their signatures on the legal document still have weight. See Sefer Me’irat Einayim 46:96.

20.

Because of transgressions they committed. I.e., they attempt to nullify the effectiveness of the legal document with their testimony.

21.

If, however, there is no proof to the validity of their signatures except the witnesses who maintain that they were unacceptable, the legal document is nullified and is torn up by the court [Shulchan Aruch (Choshen Mishpat 46:37)].

22.

See Chapter 6, Halachah 3.

23.

Since there is a pair of witnesses who testify that the legal document is invalid, the matter is considered as deadlocked. For whenever the testimony of two sets of witnesses contradicts each other, we consider the matter as unresolved.

24.

Since the question is unresolved, we follow the principle: “Whenever a person seeks to expropriate money, the burden of proof is on him.” The bearer of the legal document must prove that it is valid. Since he cannot do so, because of the unresolved doubt described above, the defendant is allowed to retain possession of the funds. Nevertheless, if the claim involves movable property and the bearer of the document seizes property belonging to the defendant, the bearer may keep that property. The rationale is that the property is now in his possession and the original owner must sue to expropriate it. And he also is unable to prove his claim definitively [Tur, Ramah (Choshen Mishpat 46:37)].

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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