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336 Authentication Authority

THE JEWISH ENCYCLOPEDIA

In the latter case, the instruments with which the is to be made must be at least three years old (this being the period in which prescriptive rights to real estate may be obtained), and must be instruments of conveyance of real estate in the hands of the persons in open and undisputed possession of such estate. If the instruments with which the comparison is to be made are in the possession of the person who is interested in having the signatures authenticated, they can not be used for such purposes. Some authorities are of the opinion that a comparison with the signatures in a letter or with the handwriting of the author of a book in manuscript is not permitted (Shulhan 'Aruk, Hoshen Mishpat, 46, 7, gloss). Prankel (" Der Gerichtliche Beweis," p. 415) re-

comparison

duces these five cases (1)

to three

fundamental principles

Acknowledgment by subscribing

witnesses; know the

{2) the testimony of third persons who signatures of the subscribing witnesses and (3) comparison of handwritings. As to the acknowledgment of their signatures by the subscribing witnesses, the Mishnah provides (Ket. ii. 4) that if one witness says, " This is my signature, and the other signature is in the handwriting of my associate, the second witness," and the other witness testifies in the same manner, their testimony is sufficient for authentication. If the one says, " This is my signature," and the other likewise says, "This is my signature," a third person must be called who recognizes both signatures, in order that there may be two witnesses for each signature. This is the decision of Rabbi Judah but the Sages say that a third person need not be called in, because it is sufficient if each one pro.ves his own handwriting. The point raised here touches the very essence of attestation of documents. According to Rabbi Judah, the witnesses admitting their own handwriting are testifying merely to that fact, and not to the substance of the document; whereas, according to the Sages, the testimony of each of the witnesses acknowledging his own handwriting is to the substance of the document; hence, according to the latter, there are in fact two witnesses attesting the fact in issue; namely, the substance of the document. Therefore, it is unnecessary to call in a third person "who is familiar with their signatures. Froof of the handwriting of the witnesses is alluded to in the Mishnah above cited and in the Baraita In this case, each of the signatures must (Ket. 1%). be proved by two witnesses, because Proof the testimony is not as to the subof Hand- stance of the instrument, but as to the writing genuineness of the signature. If one of the subscribing witnesses admits his signature, and he and a third person prove the signature of the other subscribing witness, this is not sufficient, because thereby the instrument is proved for the greater part by one witness; to wit, the subscribing witness, who admits his own signature and proves the signature of the other. The Talmudic law requires that in every case the testimony of the witnesses, in order to establish a fact, must go to the entire matter and a fact is not proved if the testimony of one of the witnesses proves more than that of the other (gee Ket. 21a B. B. 57a).



1

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336

On

the question of comparison of handwritings purpose of proving the signatures, the rule seems to be that the comparison may be made with two other instruments, as above stated; but comparison may also be made with an instrument the validity of which has been attacked and which has been judicially declared genuine (Ket. 1%), and such a j udicially authenticated instrument is for this purpose as good as two ordinary instruments (Hoshen for the

Mishpat, I.e.). In authenticating the document,

it is customary mention the mede of authentication (ib.). The Shulhan 'Aruk simply prescribes that, if the court merely writes, "In the presence of us

to

Examples

three sitting together, this instrument was authenticated," this is sufficient,

of

Formulas,

although they do not state in what manner it was authenticated. The fol-

lowing formulas are customarily used

When

(1)

the subscribing witnesses themselves

admit their signatures;

We three sat together in court and considered the aforesaid document to which there are subscribed two witnesses A, the son of B, and C, the son of D. These two witnesses came before us and acknowledged their signatures, and admitted that they were their own handwritings. Therefore, we, as is proper, have found them to be genuine and authentic. (Here follow the date and the signatures of the three judges.)

(2) When other witnesses testify to the signatures of the subscribing witnesses:

We three sat together in court and considered the aforesaid document to which there are subscribed two witnesses A, the son of B, and C, the son of D and there came before us two other witnesses E, the son of F, and G the son of H and they





,



before us concerning the signatures of the aforesaid witnesses who have subscribed these documents, and they made clear to us that the said signatures are in the handwritings of the said witnesses. Therefore, we, as is proper, have found them to be genuine and authentic. (Here follow the date and the signatures of the three judges.) testified

The formula in each case is varied to suit the nature of the proof brought before the court. A list of such formulas may be found in Nahalat Shib'ah, xxvi. see also " Seder Tikkune Shetarot, " by J. G.

C. Adler,

Hamburg,

1773.

As

a rule, the signatures of the three judges are required; but it is sufficient if the authentication is

signed

by two of them (Hoshen Mishpat, 46, 29). The tribunal authenticating the docu-

Two

_

Judges

ment need not

necessarily be learned

in the law, nor is

it necessary that the debtor or the person to be charged by this document be present indeed, the authentication may take place even if the debtor declares the instrument a forgery (ib. 5). The authentication is simply a judicial affirmation of the correctness of the signature of the subscribing witness, and the truth of the facts set forth in the document is not directly in issue (Ket. 109J, top osnei1 Mishpat, I.e. 20). In order that there might be no danger of the authentication being used for some other instrument, the rule was adopted that no space must be left between the document and the authentication, but that the latter must be written immediately under the signature of the witnesses, or on the back of the instrument immediately behind the writing (B. B. 163a; Hoshen Mishpat, 46, 31). If, however, the

Must Sign,





H