Ideally, Jews operate their businesses according to halachah, just as much as the more obviously ritualistic parts of their 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 does or doesn’t work.

Not Wrong Enough

Last time we saw that if the date and day of the week on a shetar don’t match—Wednesday the 21^st, when Wednesday was the twentieth--we trust the day of the week more, 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 a year before the man in question married into the family.

Rashba invalidated it for being pre-dated, 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. (He is treating a shetar matanah, a document detailing a gift, as having the same rules 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, if we have no other way to identify the signatures. Where witnesses themselves are our only way to know the document was properly attested, we can/must accept other claims they make about the shetar, because we must either believe them or not, cannot pick and choose.

In such cases, they would be believed even to say a gift occurred later, despite what the shetar or recipient says. We would rewrite the shetar with the date they claim was the real one.

Where we have other ways to verify their signature, they cannot adjust their testimony, because of the principle of keivan she-higid, once a witness has had his say, he cannot change or adjust it.

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 the groom appoints the witnesses as the sole witnesses], this is not true of gifts.

Kinyan or Signing the Shetar

Shach added a wrinkle. He thinks the kinyan, the act of acquisition, creates the publicity/ 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 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 not write the shetar until 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 anyone denying the shetar because no kinyan occurred on that later date].

Post-Dated Checks

The flip side is a shetar me’uchar, where we date the shetar after the loan was given. We accept such a shetar because it only disadvantages the lender, who could and should have investigated better; our worries about a pre-dated shetar are for those who had no way to protect themselves from the foreclosure that comes their way. In such a post-dated shetar, AH does think the lender would be able to collect from the borrower at the right time; e.g., if a thirty-day loan happened on the first but was dated the fifth, it would be collectible on the first of the next month.

Such a shetar only works if the borrower agrees to include in the lien all future property s/he will own, se’if ten rules, because otherwise the shetar can be used to collect property the borrower only bought 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, dated to the twentieth, any property the borrower purchased after the tenth will seem to be included in the shetar, when it’s not, unless the borrower commits to its so being.)

However, if the shetar says it is post-dated, it is fine, because 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 money from others.

Still and all, AH opposes writing post-dated documents because they look like a falsehood, and Jews are not supposed to commit falsehood. Certainly not when the lender does not know, whose rights of repossession are being constricted.

The Shetar for a Gift

Se’if eleven rejects such post-dating for gift shetarot, for fear the giver will lose out. S/he might buy back an item from the recipient, neglect to take the shetar, then lose the item to the nefarious recipient, who will produce a shetar certifying it was given to him/her on this later date. Because the giver has easy ways to protect him/herself, as we saw with the lender, Shach thought it was enough to alert him/her to the post-dating, forewarned is forearmed.

[It seems to me worth paying attention to how conscientious we are being about avoiding unintended and improper loss down the road. I remember my father, a”h, telling me corporate lawyers were there to structure transactions such that no one was surprised or misled. Of course it doesn’t fully work, or we’d have many fewer litigators; but it is the goal, transactions happen in ways that all involved expected and understood, with no unintended consequences for them or anyone else.]

Suspicious Shetarot

A shetar clearly dated wrongly—such as Yom Kippur, when no one writes a shetar, could theoretically be mukdam and invalid. We generally assume shetarot are valid, however, especially a shetar mekuyam, where a court writes on it 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, the other person can demand proof of validity.

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 reason I left it in here—the people involved in the transaction were asukin be-oto inyan, were involved in this 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 allowed recording an official court act in a shetar after the fact, because that is what starts the shi’abud, similar to a kinyan, not the writing. Weddings can be construed as an act of a court, or the kinyan sudar, the handkerchief acquisition, for the Shach, allows us to date the ketubah to then, even if the actual wedding ends up happening later that night (the next halachic day).

I’m running out of space on this, our second (and last) week of shetarot, so I will skip much. Bottom line of an extended discussion, a shetar need not identify where it was written (although it can produce complications, such as where the loan happened in one place and the shetar written in another, particularly if the places use different currencies).

Partial Dating

Se’ifim 20 and 21 discuss how to handle a shetar with the month but no date. Should lenders present shetarot, one from Nisan, the other from 28 Nisan, the latter collects first, because the unnumbered shetar might be from 29 Nisan (and the burden of proof 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 lender holding the 28 Nisan shetar will not be able to collect from those who purchased land from the borrower, because they can claim the other shetar was written earlier, it’s that lender who has the lien. 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 next year, a shetar from 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.

Adapted from articles previously published on Torah Musings