Mar 26, 2024
by R. Gidon Rothstein
Parshat Tzav
We don’t much write shetarot, legal documents, anymore, other than a ketubah when getting married and (if we need to) a get for divorce. For business dealings, I suspect we tend to use local contract law. Making Choshen Mishpat 61 largely irrelevant in most cases. I chose to summarize it here nonetheless for its emphasis on local custom as a factor in how we evaluate the legality of documents. I think it an underemphasized undercurrent of financial halachah, how much is amenable to custom.
Authorization Assumes the Custom
Siman 61 of AH Choshen Mishpat starts with what the scribe may assume the Jew who engaged him to write a document intended to include. The authorization is enacted with a kinyan sudar, where the scribe has the Jew acquire an object of the sofer’s, such as a pen or handkerchief, in return for which the Jew conveys to the scribe his right to write the document [it’s a sort of kinyan chalipin, where a trade can happen with only one side of the trade present right then].
We understand the authorization to mean the scribe should include in the shetar whatever local custom generally includes, such as: a declaration the parties had nullified any prior moda’ot (a moda’ah was a way to circumvent coercion, by announcing ahead of time one does not intend whatever one is about to do. Here, the parties are nullifying any of those, to assure the other side this is not any kind of a fake-out transaction.)
[Along those lines, my mother, hareini kapparat mishkavah, 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, sadly still a very prominent man. Concluding 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.” The bittul moda’ah, nullification of prior announcements, as well as the next 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’m not sure if he or anyone saw 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 held we act as if they were 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 points out the latter view can support its claim based on 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; should the borrower default, the lender can collect the real estate, even if someone else bought it in the interim. The Gemaraa 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. Whatever affects only the two people involved is and should be ruled by local custom (unless the shetar says explicitly otherwise).
New Local Customs
In se’if three, AH says that we follow even innovative new local customs of shetarot, as long as they do not violate Torah law directly. He gives an example of the latter, a shetar cannot allow a lender to seize property even in the borrower’s absence, without permission from a court, and/or without 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 that all shetarot must be written by the local scribe. [AH thinks this would be to avoid forgeries; I can also imagine doing it to be sure there is enough business to maintain the 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, because it becomes a sort of hoda’at ba’al davar, admission of the facts by the concerned, legally stronger in establishing facts 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 that if the person committed, and they wrote enough to know his/her commitment, it, too, is already a shetar.
Bearer Bonds
AH in se’if six knew of communities with a specific ban on bearer bonds, where the shetar says anyone in possession of this document can collect from the named borrower, and provides harsha’ah, power of attorney, to such a person (BY says the harsha’ah is unnecessary, 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.
