Substantiating Signatures

Ketubot (2:4) | Yisrael Bankier | a year ago

The Mishnah (2:4) discusses substantiating the signatures on a document. Interestingly the cases discussed is where the individuals confirm their own signatures. The Mishnah teaches that if they both verify both signatures then it is sufficient. In other words, there are two witnesses for each signature. If however they are only verifying their own signatures, then it is the subject of debate. Rebbi maintains that it is not enough and two witnesses are required for each signature. The Chachamim however argue that no additional witnesses are required.

The Bartenura, citing the Gemara (21a) explains the debate as follows. Rebbi understands that the witnesses are testifying about the individual signatures. Consequently, two witnesses are needed for each signature. The Chachamim however maintain that the witnesses are testifying about the substance of the document. Since there are already two witnesses, and no additional witnesses are required.

It would seem that according to the Chachamim, in order for the two people to be sufficient, they would need to remember that substance of the contract on which they signed. Indeed, Rashi comments that according to the Chachamim, the witnesses say, "we saw the loan, and we signed it," suggesting that they remember the loan.

The Tosfot HaRid however disagrees maintaining that if the witnesses recognised their signatures, it would be sufficient. He explains that debate between Rebbi and the Chachamim as follows. According to Rebbi even if the two witnesses remembered loan, they would still need two witnesses for each signature. Without substantiating the document in that manner, the loan would only have the force a verbal loan. In other words, the money could not be claimed back from land that was sold after the loan, and the lender could simply claim it was paid back. For the loan to be defined as a contractual loan the signatures must be validated. The Chachamim however disagree arguing that even if they do not remember the loan, each witness confirming their own signatures would be enough. In the beginning they each testified about the loan. Each individual signature related to the substance of the contract. Consequently, they do not need to now remember, since they are confirming their own signature that related to that loan when it was signed.¹

The Ritva explains similarly that since they signed the document, if they say it their handwriting then the document itself is substantiated and the witnesses confirmed (ke'mi she'nechkeru edutan be'beit din). Consequently, it is as if they are now testifying faithfully about the substance of the document. The Shach cites the Maharik who explains similarly that when the witnesses identify their signatures it is immediately equivalent to testifying about the substance of the document. After that point, they would not be believed if they said we did not see the loan.

This point is also debated between the Rambam (Edut 8:1) and Raavad (8:4). The Shulchan Aruch (46:7) rules like the Rambam that if the witnesses have no memory of the loan, then they cannot verify their signatures. The Raavad, takes the position that the witnesses need not remember. He argues that if they identify their signatures but argue that they it was a shtar amana -- a document written in advance of a loan -- they are not believed. The Shach defends the Rambam explaining that in the case where they claim it was a shtar amana they are not believed because they are incriminating themselves. The case of the Rambam however is different since they simply deny knowledge of the loan all together.

The Keztot (46:11) however understands that the Rambam was only discounting the case where they have no memory of the loan at all. If however they remember being instructed to sign on the document then he would agree that that would be enough.

¹ The Tosfot Chadashim notes that the after the Mishnah records that the Chachamim position that no additional witnesses are required, they add "rather they are believed when they say, this is my handwriting". The Tosfot Chadashim explains that the additional reference to believin them, can be explained based on the Yerushalmi (cited by the Rosh) that they are believed, even if they do not remember that details of the contract without reading it.

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