by R. Gidon Rothstein
Ideally, Jews operate their businesses according to halachah, just as much as their more obviously mitzvah lives. Were/when we find ourselves back in that preferred situation, we will document transactions with shetarot. Let’s spend one more discussion thinking about how the dating of those documents works or doesn’t work.
Not Wrong Enough
Last time we saw that if the date and the day of the week on a shetar don’t match—Wednesday the 21st, when Wednesday was the twentieth–we trust the day of the week more than the day of the month, think an error about it less likely.
Aruch HaShulchan Choshen Mishpat 43;6-8 considers another clear mismatch, when a shetar giving a gift referred to a man’s son-in-law and was dated to year 57, when the son-in-law only entered the family in year 58. Rashba invalidated the shetar for being pre-dated, and did not think the obvious error could save it, because the son-in-law’s wedding date is not the kind of information well enough known to allow for a similar correction. (Notice that in this instance, he is treating a shetar matanah, a document detailing a gift, the same as a shetar on a loan). Sema thought having had an important Jew sign it would also not be enough.
Independent Verification Reduces the Witnesses’ Freedom
Rashba did allow rewriting the shetar, with the correct year, as long as we have no other means to identify the signatures on the document, a concept I did not explain last time. Where the witnesses themselves are our only way to know these signatures are theirs, other claims they make about the shetar have greater credibility, because we either believe them or don’t, but cannot pick and choose.
In such cases, for example, they would even be believed to say that a gift only occurred later, despite what a shetar or the recipient says. We would believe them to rewrite a shetar to the new date they claim was the real one.
Where we know the signatures without them, their testimony (the signature) has already been registered, and their later claims count as later, violating the principle of Keivan she-higid, once testimony has been given, the witness cannot change or adjust it.
Alternate Paths to an Improved Shetar
Where these witnesses cannot change the shetar, other witnesses to the gift, even if not appointed for that purpose by the parties, can nonetheless sign a new shetar with the correct date. While there are cases where only the witnesses designated at the time of the event count [such as at weddings, where for various reasons, the groom appoints the two witnesses as the sole witnesses], this is not true of gifts.
Kinyan or Signing the Shetar
Shach added a wrinkle with the claim that the kinyan, the act of acquisition, creates the awareness we expect later purchasers to have had, not the writing of the shetar. If witnesses to a gift did not get around to writing the document until a year or two later, Shach allows dating the shetar to the time of the kinyan.
Another option is to have the witnesses testify in court. The court will then have the power to write a new shetar, dated to when the court sat, losing the recipient of the gift (or lender) all the repossession options for transactions between the two events.
In addition to the kinyan—and because a formal kinyan does not always accompany the execution of a shetar— the witnesses’ signature sets the date of the shi’abud, the point at which buyers were supposed to know of this loan. A shetar written on the day of a loan, signed only a few days later, would still be considered mukdam.
The relatively simple solution is to write on the shetar that it was only signed on date x. Sema shooed away worries the lender could erase that part (and collect the loan from buyers unencumbered by this lien), because the erasure would show, and there would be too much empty space.
On the other hand, where the kinyan happened at the time of a loan, but the parties did write the shetar until a few days later, Taz allowed dating it to the kinyan, since that act, too, is enough to start the clock on the shi’abud. In se’if fifteen, AH thinks the shetar should say so, this shetar is pre-dated to where the kinyan occurred. If the witnesses don’t remember the date of the kinyan, they should write they saw a kinyan, and on date so-and-so, wrote this shetar [to avoid someone denying the shetar because no kinyan occurred on that later date].
The flip side is a shetar me’uchar, where we date the shetar after the loan was given. This only disadvantages the lender, so it is valid, even if the lender was not told what had happened (he should have investigated better; our worries about shetar mukdam are because the people who will suffer had no way of protecting themselves). AH does think the lender would be able to collect from the borrower at the right time in such situations (a thirty-day loan that happened on the first but was dated the fifth).
Such a shetar only works if the borrower agrees to include in the lien all future property s/he will own, we learn in se’if ten, because otherwise the shetar can be used to collect property the borrower only bought (and then sold) after the original loan, and purchasers should not be put in the position to have to claim and prove it was a post-dated shetar. (If the loan happened on the tenth of the month, but was dated to the twentieth, any property the borrower purchased after the tenth will seem to be included in the shetar, when it’s not.)
However, if the shetar says it is post-dated, that’s fine, because then purchasers will require the lender to prove their property was included in the shi’abud, given our old friend ha-motzi me-chaveiro alav ha-re’ayah, the burden of proof generally falls on those claiming others owe them money.
Sum total, though, AH opposes writing post-dated documents because they look like a falsehood [fun fact: this week’s parsha has the verses mi-devar sheker tirchak, Jews are supposed to stay far away from even the implication of lying, a verse many Orthodox Jews today seem to forget, particularly when it comes to choosing leaders, political and often rabbinic], and certainly not without the knowledge of the lender, whose rights of repossession are being constricted.
The Shetar for a Gift
Se’if eleven rejects such dating for gift shetarot, for fear the giver will buy back the item from the recipient, who will then be able to produce the shetar saying s/he got it on this later date, and wrongly take it back. In such instances, the buyer/giver won’t think to demand return of the shetar to the original gift. Because it’s about protecting the giver, Shach thought it was enough to alert him/her to the post-dating, the information s/he needs to factor into any future transactions around this gift.[Consider the attitude here, the attempt to avoid unintended and improper loss down the road. I remember my father, a”h, telling me the point of corporate lawyers was to structure deals such that no one was surprised or misled about a transaction. Of course it doesn’t fully work, or we’d have many fewer corporate litigators; but it is the goal, that transactions happen in ways that all involved understand what is going on, bear only those financial consequences they were supposed to.]
A shetar clearly dated wrongly—such as 10 Tishrei, Yom Kippur, when no one writes a shetar [when I was looking for a responsum written on each day of the Jewish calendar, for my book, Judaism of the Poskim, I thought I would never find responsa for such days either; but Tzitz Eliezer, one of my favorites, included a couple of his Kol Nidrei derashot/ talks in his responsa]—could theoretically be mukdam and invalid. We generally assume shetarot are valid, however, especially a shetar mekuyyam, where a court writes on the shetar that they verified these witnesses’ identity. We take for granted a court would not make such a basic error as pre-dating a shetar.
Where not mekuyam, or some other issue arises, such as its having been lost and found outside the possession of the lender, so we don’t even know if it is still his/hers, we will require proof of the validity, if the other person asks for it (a court will not tell the litigant what to claim, in this instance).
We also don’t assume a shetar has been repaid, unless we have some external reason to think it was (or the borrower claims it was, and then will have to bring proof).
Ways to Allow Pre-Dating
Dating usually follows the Jewish calendar, meaning the day follows the night, so a shetar written at night with the loan happening the next day is fine, but not vice verse. Unless—and this helps at weddings—the people involved in the transaction were asukin be-oto inyan, were involved in the transaction all the way through (so there was no point at which the borrower might have sold property to later be improperly collected). As we’ve said before, a kinyan also negates these worries, because Shach held it, too, suffices to make people aware of the transaction.
Sema added another helpful idea, acts of a court can be recorded in a shetar later, because the gemar din, the conclusion of the court, is similar to a kinyan in that it starts the shi’abud, not the writing. For weddings, often called for a time that is still one day, with night falling before the delivery of the ketubah, we might think of it as an act of a court, or the kinyan sudar, the handkerchief acquisition, makes it already applicable from when it was signed.
I’m running out of space on this, our second week in shetarot, so I will skip much. Bottom line of an extended discussion in AH, a shetar need not record where it was written (although it is preferable, but then we get into questions of what happens if the loan happened in one place, the shetar written in another, particularly complicated if the two places use different currencies).
Se’ifim 20 and 21 offer two interesting cases of how to handle a shetar with the month but no date. Should two lenders present shetarot, one from Nisan, the other from 28 Nisan, the latter shetar collects first, because the other might have been written on 29 Nisan (and the burden of proof is on the possessor of the shetar, because it always falls on the one trying to extract money, ha-motzi me-chaveiro).
On the other hand, should the borrower be unable to repay the loan, the lender holding the 28 Nisan shetar will not be able to collect from those who purchased land from the borrower after the loan, because they can claim the other shetar was written earlier, it’s that lender who can collect. If the two lenders give each other power of attorney, they can then collect from purchasers and work out repayment.
In a leap year like ours, a shetar dated to Adar will be assumed to be the first Adar (a question that comes up in other contexts, too, which of our two Adars is the “real” one, such as for yahrzeits, Bar-Mitzvahs, etc.; here, Adar plain is the first Adar).
For one last idea with other applications in halachah, if the lender’s shetar has a date, and the borrower has a mechilah, a document forgiving all loans until this same date from this lender, we still hold the shetar to be valid, because ad, until, generally does not include the date named.
AH offers a nice Biblical support for the idea, Shemot 12;18 tells us to eat matzah until the twenty-first at night. Apparently without “at night,” we would have understood until to mean not including the twenty-first.
Should the forgiveness document have more unclear language, such as “until now,” or “until this day,” the burden of proof would return to the lender.
Many more details about shetarot, even just in this siman, but we will stop here, and move next time to discussions of how hygiene affects prayer, in terms of the presence of manure or urine, and how to solve such issues.