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294 Attorney

this was an implied relocation of the power granted to the first one, unless the second appointment was

simply intended as a precautionary measure whereby the second Attorney was substituted only in case the first

294

THE JEWISH ENCYCLOPEDIA

Attributes

could not act

(lb.).

was a debt, the death of the principal revoked the power of Attorney but if it was real estate, or if the Attorney had been given authority through the ceremony of symbolical seizure (Kixvan), the death of the principal was not a revocation of the power (tb. 1). husband could act as Attorney for his wife without any special power given to him, in controversies concerning those portions of his wife's property in which he had usufructuary rights but he had no such implied power in matters concerning those portions of her estate the fruits of which she enjoyed (Git. 486; Hoshen Mishpat, I.e. 8). Members of a partnership or heirs of an estate of which no partition had been made could appear as attorneys for their copartners or coheirs without any special power given to them, because, their interest being joint, each is authorized to act for the others. If, however, one of the coheirs or copartners was absent in another city, and unable therefore to intervene personally in the case, if he so chose to do, he was not bound by the action of his coheir or copartner and it was a rule, therefore, that in cases where a coheir or copartner appeared to represent the estate, the defendant might demand a production of the power of Attorney from absent parties interested (Ket. 94a; Maimonides, "Yad," Sheluhin, iii. 3; Hoshen Mishpat, I.e. 9). Attorney for Defendant The defendant was not entitled to be represented at court by an Attorney (Hoshen Mishpat, 134, 1). The only case, it appears, known to the Talmudists, in which it was If the subject of contention



A







assumed that an Attorney (-pDJN,

evroXevs)

might

eventually be permitted to appear for the defendant, was one in which the high priest was sued (Yer. Sanh. ii., beginning 19rf). The principal reason for compelling the defendant to appear in person seems to have been the feeling that if he were obliged to face the plaintiff in open court, there would be a slighter probability of false plea or concealment of the truth on his part (Hoshen Mishpat, I.e. Beer ha-Golah, ib.). Women of standing and scholars were respected to this extent, that they were permitted to make their statements in their own homes in the presence of the plaintiff and the record of their statements was taken by the official recorder and presented to the court (Asheri Sheb. iv. 2; Hoshen Mishpat, I.e.). See Agency, and Attorney, Power of. D. W. A. j. sr.

for a testimony and as proof that I do this voluntarily and of my own free will. I have given to the said C, the son of D, four ells of ground, and through them and through the aforesaid symbolic seizure, I empower and authorize the said C, the son of D, to be my attorney and representative [" murshah '^empowered, and "ente!ar"=ei'ToAeiis, mandatory], that he may have power and authority to demand and collect the amount which E,

owes me on a certain instrument of indebtedness have transferred to him [my attorney] ; "and now acquire it lor thyself and all rights under it; and thy hand shall be as my hand; and thy mouth as my mouth; and thy act as the son of F,

which

I

my act; and thy release as my release; and everything, that thou shalt do concerning the aforesaid debt shall be done as " and thus the aforesaid A, son though I had done it myself of B, said to the aforesaid C, son of D, Go litigate and acquire and lay out whatever is necessary for thy expense, and whatever shall be decided for thee in court I shall accept whether in my lavor or against me, nor shall I have the right to say to thee I have sent thee to benefit me, and not to harm my cause and he shall also have power and authority to summon the debtor to court or to compromise with him or to extend the time of payment and to give acquittance. To all the above, the said A, son of B, bound himself by symbolic seizure and by the four ells of ground as aforesaid, and by a hand-clasp, and by an audible statement, and by a lawful oath, and under the sanction of the heavy ban to approve and ratify everything that the attorney may do. This letter of attorney shall not be invalidated nor shall its power be minimized by anything wrongful or detrimental forever but it shall have permanent force and effect according to the effect of all letters of attorney that are customarily made among Israelites, according to the regulation of our sages of blessed memory, not as a mere asmakta nor as a mere form. And we have taken symbolic possession from A, son of B, on behalf of C, son of D, according To everything that is written and expressed above by an object through which symbolic possession may lawfully be taken and all is firmly axed and established." (Signed by two witnesses.) '

'

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4

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The Power of Attorney is, like most documents in Jewish law, prepared and signed by the witnesses and not by the parties. By the ceremony of symbolic seizure and by the conveyance of four ells of ground to the attorney, the latter became invested with all the powers specifically defined in the instrument.

The foregoing formula contains all the necessary and formal words required by the law. It enables the attorney to expend money on behalf of his principal in the prosecution of his claim, and whether well or ill spent, he is entitled to be repaid and it

furthermore authorizes the attorney to bring suit, to compromise, to grant an extension of time of payment, and to give a receipt or acquittance to the debtor.

For further explanation of the terms and phrases used

in this

formula, see articles Siietarot, As-

makta, Attorney'. ,t.

D.

sr.

ATTRIBUTES



nent properties of

ATTORNEY, POWER OF

(Harshaah)



An

xliv.

"A memorial of testimony taken before us witnesses whose (lay of the month names are subscribed below. On the of the creation, there came before us in the year of A, the son of B, and he said unto us, 'Be ye witnesses and acquire from me by symbolic seizure [" kinyan "] and sign this and give it into the hands of C, the son of D, that it may be unto him ,

W.

A.

The fundamental and permasubstance, so-called by logicians

in contradistinction to accidents,

which are modi-

fications representing circumstantial properties only.

Aristotle tal

instrument empowering an agent to act on behalf of The following formula of a Power of a principal. Attorney is taken from "Nahalat Shib'ah," chap,



being

makes the " (ra

properties (ra

iv

distinction

rfj ohtsiq.

ovra)

cv/iflefr/iLdTa;

between " fundamenand its fundamental

"Metaphysics,"

iv.

30,

1025a, 30; and "De Animalium Partibus," i. 3, 643a, Similarly the Arabian-Jewish philosophers dis27).

criminate between ixm. "attribute," and mpD, "accident"; and the typical defenders of the Attributes, the Sifatiya, are called by these philosophers

D'HNnn ^JH, "accepters of attributes." The theory was always an important problem of

of Attributes

because of its intimate connection with the Christian doctrine of the Trinity. It came scholasticism,