Page:Jewish Encyclopedia Volume 2.pdf/330

292 Attestation

THE JEWISH ENCYCLOPEDIA

Attorney

An attestation in the form " A. B. has authorized me to sign for him" is invalid, because of the general reason that the subscription of the witness is

equivalent to testimony delivered in open court, and hence must be direct, and not hearsay. In some communities it became customary for public scribes to prepare all documents; in such cases the witnesses appeared before the scribe and, if illiterate, directed and authorized the scribe to sign for them. The formula in such cases was: "A. B. has authorized me to sign this document for him " and where such custom prevailed, such attestation was considered valid (Shulhan 'Aruk, Hoslien Mishpat, 45, 5). A peculiar rule of the Jewish law was that the signatures of the witnesses must be affixed at a distance of less than two lines from the body of the instrument. The history of this rule is interesting.

The older Talmudic law, which had no special formula for documents whereby the end of the body of the document could be fixed beyond Connection the danger of any addition thereto

with Body

had subscribed, attempted to prevent the addition of such matter by the rule quoted by Bab Amram, " The last line proves nothing " (B. B. 162a) meaning that if any matter of importance was brought into the last line of the document, it signified nothing, because it was presumed that this last after the witnesses

of Deed,



had been, interpolated, as the witnesses rarely signed their names so closely to the body of the document as not to leave a space wide enough for an line

interpolation. Another rule

is cited in the name of Babbi Joof the substance of the document is repeated in the last line " (B. B. 161J). Thus, by summing up what had already appeared in the body of the document, the last line becomes of no importance whatever except as an indication of the end of If, therefore, the signature of the the instrument. witness is at a distance of a line or a little more than a line from the body of the instrument, no interpolaBut if the signatures are two tion could take place. lines distant, then interpolation could take place, because in the first of these two lines some matter of importance could be added, and in the second the formula of repetition could be written. Hence the necessity for the rule that, in order to prevent any interpolation of this sort, the witnesses must sign within the distance of two lines from the body of the instrument, or the instrument is absolutely void

hanan



"

Some

(Hoshen Mishpat, I.e. 6). is fixed and established " sally recognized as the

The formula "Everything (D'pl THE? ^3iTl) is univerend of the instrument, and,

as anything appearing thereafter would be immediately recognized as an interpolation, the strictness

yet the of the above rule seems to be unnecessary rule was nevertheless not relaxed, upon the ground that that which is not done according to the ordi;

nance of the sages is not valid (" Be'er ha-Golah " on Hoshen Mishpat, I.e.). An instrument of indebtedness duly attested by is in some respects equivalent in its an instrument which has been made a mat-

two witnesses effect to

ter of public record at

modern law.

The debt thus

secured becomes a lien on the property of the debtor and the creditor may follow such property for the

292

purpose of collecting his claim, even though the property has been transferred to third persons bona fide, because all persons are presumed Deeds of to take such property subject to the Indebted- lien of the debt, since the instrument ness. of indebtedness attested by two witnesses is deemed to be such publication of the debt as to be legal notice to all the

world

(B. B. x. 8).

rule of law providing that at least two witmust subscribe does not imply that the document has greater validity if more than two subscribe. It is simply a rule providing for a proper form of attestation and two witnesses are sufficient. An instrument attested by only one witness is equivalent to the oral testimony of one witness; and if the obligation is repudiated by the person bound by the in-

The

nesses



strument, he is obliged to take the oath of purgation For although (B. B. x. 1 Hoshen Mishpat, 51, 2). the instrument does not create a perfect obligation by reason of the fact that there is but one witness, it nevertheless raises the presumption of indebtedness, which the debtor is obliged to meet by taking the oath that he does not owe anything. If a duly signed instrument is delivered in the presence of two witnesses, even though they are not the signers of the document, the creditor may follow the property of the debtor (ib. 7) although some authorities do not concede the same validity to the document that is delivered in the presence of two as to the one that is subscribed by two ("Beer Heteb" on H°shen Mishpat, I.e.). If a document is signed by a number of witnesses, some of whom are incompetent, some authorities require evidence that the witnesses last subscribing are competent (ib. 45, 12, gloss) but the general rule seems to be that if there are among the signers two witnesses who are competent, the instrument is valid, no matter in what order they have signed, unless it can be proved that all the signers have been simultaneously called to sign the document (ib. text). If there are only two witnesses, and one of them is incompetent, the instrument is invalid, even if it has been delivered in the presence of two qualified witnesses (Maimonides, " Yad," 'Edut, xiv. 6; see Shulhan 'Aruk, Eben ha-'Ezer, 130, 17). According to the Talmudic principle, where Jewish and non-Jewish laws differ, and the Jew is subrogated to the rights of the non-Jew, the case is decided according to the non-Jewish law hence, if a non-Jew has sold an instrument of indebtedness to a Jew, it is the prevailing opinion of the jurists that the rights of the Jew are determined according to the non-Jewish law (Hoshen Mishpat, 66, 25). If such instrument of indebtedness is signed by the witnesses at a distance of more than two lines from the body of the instrument, this does not invalidate such instrument, if the same is valid according to







non-Jewish law

45, 17).

(ib.

As

stated above, the strictness of the rules concerning attestation of instruments is somewhat relaxed in the cases of bills of divorce and bills of man-

umission of slaves, since these instruments were always construed liberally in favor of the slave to be freed from bondage or the woman to be freed

from matrimony.

The subscription

of the witnesses