First, Dagul me-Revavah (comments on SA 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, and non-Jews cannot serve as halachic messengers. So non-Jews could not collect a loan with this kind of document.
Almost two generations later, Nesivos ha-Mishpat disputed the idea. He thought the shetar codified the borrower’s choice to obligate him/herself to whoever. He does agree whoever is collecting must have been born 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 in which 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, what commitment s/he was making.
[A personal aside: the Gemara is clearly opposed to lawyers, seeing them as finding ways to help people work the system to their advantage, legally but improperly. I recognize the concern, but also wonder about situations such as this one, where we can easily imagine people who do not know the ins and outs of halachah or language, then find themselves having agreed to what they did not mean to agree.] AH places the burden of avoiding this problem on the judges, who need to remember the necessity of being sure they know 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, the lender has not tried to collect the loan despite suffering from poverty, and comes now to collect after the original borrower passed away (raising the suspicion it is a subterfuge the heirs will not spot although the original borrower would have), the shetar remains valid as long as he can provide an amatla, a convincing reason for waiting.
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, that a Jew should make sure not to be part of misconduct even if 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, to pay more (“I’ll double your expenses if I don’t show on time”). Such a promise is considered an asmachta, a commitment the person never thought would come to fruition, and therefore never sincerely committed to uphold. In such cases, the Jew would have to pay the expenses, the promise to pay those is valid, not the extra.
AH points out that in such cases even if the shetar says this is not an asmachta commitment, the asmachta element 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 claim; he thinks a guarantee to make up losses to a person’s regular income, even if 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.
