These days, we don’t much write shetarot, legal documents, other than a ketubah when getting married and (if needed) a get for divorce. For business dealings, I suspect we tend to use local contract law (although the Beth Din of America is making valiant efforts to bring Jews back to using halachic courts for their disputes).

Making Choshen Mishpat 61 largely irrelevant in most cases. I chose to summarize it nonetheless because of its emphasis on local custom as a factor in how we evaluate the legality of documents. The amenability to custom in financial halachah might be an underemphasized undercurrent.

Authorization Expects the Custom

The siman starts with hiring a scribe to write a document. The Jew who wants the document written authorizes the scribe with a kinyan sudar, the Jew acquires an object of the sofer’s, such as a pen or handkerchief, in return for which s/he conveys the right to write the document. We understand the authorization to mean the scribe should include in the shetar whatever local custom generally does, such as: a declaration the parties nullified any prior moda’ot.

[A moda’ah is an announcement ahead of time that one does not intend to do whatever one is about to do. Meant to negate a coerced act, parties began to include nullifications of such moda’ot to be sure there were no shenanigans. Along those lines, my mother, aleha ha-shalom, used to tell a story about when my father, a”h, worked as a corporate lawyer, was part of a long-negotiated deal that eventually came to signing with a real estate developer, currently the US President. At the end of a long (and expensive) negotiation, they signed the contracts, and went about their business. Except that, at some point after, the real estate guy urged the lawyers to look more carefully at the contract, where instead of his signature, he had written “not agreed.” Bittul moda’ah, nullification of prior announcements, as well as the clause we are about to see, was to avoid such tricks.]

The sofer would also be expected to write that the handshake that solemnified the deal, in line with local custom, was not an asmachta, where the other party did not really commit, and that all these declarations were fully intended, not pro forma because this is what is written in a shetar.

[I’ve never heard or seen anyone note the irony in the formal custom to include in a document the declaration that all these matters were not written as a formality.]

The Silent Shetar

Where the shetar did not include those, Shach thought it didn’t matter, held we count it as if it was written, as long as the borrower or seller knew the usual form for such documents. Urim ve-Tumim and Nesivos, on the other hand, thought we had to suspect the parties to this transaction had specifically agreed not to include them.

AH found support for the latter view in the Gemara’s discussion of achrayut ta’ut sofer, whether we assume a transaction includes achrayut even if it was not written in the shetar. Achrayut places a lien on all real estate a borrower (or seller) has at the moment of a loan/sale; in case of a default, the lender can collect the real estate, even if someone else bought it in the interim. The Gemara seems to favor the view that omitting this clause doesn’t change the rule, because people do not lend money without some security.

Barring that specific Talmudic rule, it seems we would have taken silence to indicate this shetar chose other standards than local custom, Urim ve-Tumim and Nesivos would argue. Nonetheless, AH favored Shach’s view, thought achrayut was an exception, we might have thought it had to be made explicit despite local custom, since it allows taking property from unrelated parties. What affects only the two people should be ruled by local custom (unless a shetar is explicit otherwise).

New Local Customs

In se’if three, AH says to follow even innovative local customs, as long as they do not violate Torah law. He gives an example of the latter, a shetar cannot allow a lender to seize property absent the borrower, without both permission from a court and an official appraisal, because the Torah permits taking collateral only in court, from siman 97.

Unless there is a shortage of judges, or common custom says to take collateral without official appraisal, in which case the Torah does leave the option for a borrower to concede the lender this right, and then it would/could be included in a shetar.

Communal Rules

Communities can also make their own rules, such as limiting the right to write shetarot to the local scribe. [AH thinks to avoid forgeries; I can imagine it a way to ensure enough business to sustain a local scribe.] For the forgery possibility, an involved party could write the document in his own hand (or, says Sema, sign it himself), without witnesses, where it becomes a sort of hoda’at ba’al davar, admission of the facts by the concerned, legally stronger than witnesses.

Another longstanding custom, se’if five, was for a Jew to authorize a scribe and witnesses, with a formal act such as a handkerchief transfer, and have the busy scribe write the main points, signed by the witnesses, to later convert into a full document. These notes do not make a shetar, because they lack aspects custom requires. Others think it is already a shetar, because the scribe wrote enough of the facts to encapsulate the commitment.

Bearer Bonds

AH in se’if six knew of communities who banned bearer bonds, where anyone in possession of the document can collect from the named borrower, and provides harsha’ah, power of attorney, to such a person (Beit Yosef dismissed the need for the harsha’ah, for reasons we will see below). If communal custom outlaws it, it will not work.

Where it can work, AH points out some interesting nuances. First, Dagul me-Revavah (comments on Shulchan Aruch by R. Yechezkel Landau, rabbi of Prague, better known by the name of his responsa, Noda Bi-Yehuda) thought such a document is based on shelichut, being the messenger of the original lender. Since non-Jews cannot serve as halachic messengers, a non-Jew could not extract money based on this kind of document.

Almost two generations later, Nesivos ha-Mishpat disputed the idea. He said the shetar codified the borrower’s choice to obligate him/herself to whoever. He does agree whoever is collecting must have been alive at the time of the original shetar, because halachah does not recognize transfers of ownership with or to a not-yet-existent entity.

The Care To Take

Se’ifim seven and eight present two factors to keep in mind when writing a shetar. First, courts will read such documents according to the usual meaning of words in the language it was written, with the usual halachic rules and assumptions around such words and transactions. A party to a shetar cannot later claim not to have understood what was happening.

[A personal aside: the Gemara is clearly opposed to lawyers, whom the Gemara thinks find ways to exploit the system to their clients’ advantage, legally but improperly. I recognize the concern, but also wonder about situations such as this one, where people who do not know the ins and outs of halachah or language might find themselves having agreed to what they did not mean.]

AH places the burden of avoiding this problem on the judges, who need to check the full context of a transaction and its conditions before they rule on a case.

The other concern has to do with why it used to be important to balance a checkbook (for those who remember checks). Even if a shetar is very old, it remains valid, even if circumstances give us reason for suspicion, such as that the lender had become impoverished and still not collected the loan until the borrower passed away, comes now to collect from the estate. As long as the lender has an amatla, a convincing reason for waiting, s/he gets the money.

Here too, AH reminds courts to check carefully, and to recuse themselves if they suspect but cannot prove there is chicanery afoot. [Another important halachic idea, a Jew should avoid being part of misconduct even if s/he cannot prove there is misconduct going on.]

Why I Try to Write S/he

Se’if ten reminds us of what the general use of “he” in the English language can make us forget. AH denies any difference between men and women for civil law, cases with money. Women differ from men only in a subset of ritual obligations; for all other halachah, they are the same as men. If a woman becomes obligated to take an oath in court, she must take an oath in court. If the law says the courts should force her to do something, the courts are to force her to do something.

The very real distinctions in how halachah treats women in some areas can fool us into letting them spread to other areas. Hence the importance of reminding ourselves of the many places where gender has no impact on how we treat people. Such as for money and loans in court.

No Penalty Commitments

A Jew can commit to repay another’s expenses if s/he fails to act in some expected way, but cannot commit to penalize him/herself, pay more (“I’ll double your expenses if I don’t show on time”). Such a promise is an asmachta, a commitment made believing it would never come to fruition, and therefore not really a commitment. In such cases, the Jew would have to pay the expenses, the promise to pay those is valid, not the extra.

In such cases, even if the shetar says this is not an asmachta, AH points out, the asmachta is too explicit to avoid it. Shach thought any promise to compensate for profits lost because of the first person’s failures would still be an asmachta, because such profits are not well-defined. AH limits the idea, thinks a guarantee to make up losses to another person’s regular income, even future income, would not be an asmachta. What can work, even for Shach, is a kinyan before a qualified court (a beit din chashuv, an important court), or giving a gift starting now (an issue clarified more fully in Siman 207, he tells us).

Three more se’ifim cover cases that seem to me unlikely in today’s world, so I will leave them for those who study every paragraph of AH. For now, we’ve had what I hope is an interesting tour of shetarot and some of the halachic/communal custom issues they raise.

Next time, proper bodily cleanliness during prayer.

Adapted from articles previously published on Torah Musings