DEED (translated from the law Latin "actum"):(Redirected from INSTRUMENT.)
In English law a contract under seal. To it corresponds very closely in Jewish law the "sheṭar" (lit. "writing"); the latter, however, means a solemn document, and is as such distinguished from the mere note of hand ("ketab yad").
I. The sheṭar was said to be sealed, and in Biblical times seal-rings, making an impression upon wax, clay, or lead, were evidently used to authenticate written documents; but in the Mishnah and in the later rabbinical literature the sealing of a document means neither more nor less than the signatures of two or more attesting witnesses.
In Biblical Hebrew "sefer" (lit. "a book") is the common name for a document, whether it be a conveyance (Jer. xxxii., passim), a bill of divorce (Deut. xxiv. 1), or an indictment (Job xxxi. 35).Letters Patent and Close.
Another word, "geṭ," is found in the Mishnah, mostly applied to the bill of divorce, but used also in a more general sense. It is known, according to its outward form, either as the "straight deed" ("geṭ pashuṭ) or as the "tied deed" ("geṭ meḳushshar"), the former being open, the other folded and sealed (Mishnah B. B. x. 1). The straight deed is signed by the witnesses at the bottom of the page; the tied deed (generally made up of several sheets sewed together) is folded and signed by one witness on the back, then folded again and signed by another witness. The latter form went out of use at an early date. The Talmud (B. B. 160a) says it was invented to prevent undue haste, especially in making out bills of divorce.
Concerning the form of written documents in use among the Jews before the Babylonian captivity, nothing is known. For more than a thousand years before that event, written contracts—especiallybonds for the payment of money with interest thereon—were in use in Assyria and Babylon, thousands of which are still preserved and known as "contract tablets"; and the forms observed in them have had their influence upon the documents of the post-exilic Jews.
The ordinary language of written documents, such as marriage contracts, bills of divorce, assignments of claims, as it has come down through the Mishnah and Baraita, was Aramaic; so also bonds, as appears by samples of their language (Mishnah B. B. x. 2).Bond of Indebtedness.
II. An important variety of the deed is the bond known as the "sheṭar ḥob" (writing of debt). The sealed bond—that is, an acknowledgment of debt attested by two or more witnesses—is of "higher dignity," to use an English law term, than the simple note of hand or a promise by word of mouth. For the judgment on a bond may be levied on "subjected property"—that is, property sold or pledged to others after the delivery of the bond—while a judgment on an oral contract or on a note of hand can be made only out of "free property." In other words, the bond creditor can subject the debtor's land or slaves to his claim, notwithstanding a subsequent sale, gift, or pledge to others; the bond thus operating as a mortgage, from the time of its delivery, of all the debtor's lands whereever situate—according to R. Meïr, however, only when a clause to that effect ("aḥarayut") is inserted; but, according to the majority, with or without such a clause (Mishnah B. M. i. 6; B. B. x. 8), its omission being deemed an error of the draftsman. Hence, one who finds a bond on the highway should not return it to either debtor or creditor, as it may have been paid off and thrown away, and might now by collusion be used to the injury of third parties (B. M. i. 6). It was thought that the attestation of a bond by witnesses would give to it sufficient notoriety to deter others from buying the debtor's land or lending upon its security. The obligor's signature was not a necessary part of a bond or other document; though the Babylonian contract tablets always bear it. According to Rashi, such subscription was customary in his time; and it has been so since.
When a bond was discharged, the creditor generally made out an acquittance ("shober," lit. "a breaker") with the same formalities as those observed in the bond (see Debtor and Creditor).
No set form of words is required to make a valid bond. The marriage contract, or ketubah, in so far as it secures to the bride sums of money payable upon divorce or upon the death of her husband, is in the nature of a bond, and can be collected in similar manner out of "subjected property" (Ket. 90b).Indicationsof Amount.
It was usual to express the sum in two ways: first, in zuz or drachmas; next, in shekels or in minas. In case of contradiction the smaller sum prevails. But if the sum is twice named in the same coin, the last or lower figure prevails over the first or upper. Should the lower figure be indistinct or partially blotted, it can be supplied from the number first written. Where money units are named in the plural, but the number is rubbed out, the number two is presumed. Where a bond written in Greek contained the sum ὀγδήκοντα (80) with its first part blurred, and probably raised from πεντήκοντα (50), the judge at Tiberias (Yer. B. B. x. 1) allowed only 30 shekels, τριήκοντα being the smallest sum ending in the plainly written syllable κοντα.
A bond was given generally for the repayment of a loan, and is in that case a "document of loan" or "sheṭar milweh." The Talmud speaks often of its being accompanied by an instrument known as a "prozbul," meant to defeat the law concerning the year of release (see Sabbatical year).
The cost of writing the bond falls on the borrower; and the scrivener may, in the lender's absence, prepare a bond at the borrower's instance (B. B. x. 3). Where a bond was so blotted or worn as to become illegible, the creditor might have it reestablished on the testimony of witnesses by the decree of court.
The name of a surety ought to be inserted in the body of the bond above the attestation of the witnesses, and be connected by the word "and" with that of the chief debtor. If he simply writes under the attestation, "I, A, son of B, am surety on this bond," he is at most liable on a "simple contract"; and only his "free property" can be levied on. Even this is doubtful; for, unless he has become surety before the loan is made, or property is delivered, there is no consideration for his suretyship (ib. x. 8, where the point is raised by Simeon ben Nannas, the most celebrated lawyer of his time).
The plural "sheṭarot" (writings, documents) stands for bonds as a class of property. It has been shown, under Alienation and acquisition, how a bond is transferred.
In the chapter of the Mishnah on overreaching ("ona'ah"; compare B. M. iv.), bonds are said to have no market price; for the value of a bond depends not only on the time it has to run, but also on such uncertain elements as the maker's honesty and solvency. Hence, the rule that a sale or purchase at more than a sixth above or below the market price gives a right to rescission is not applied to bonds.
III. Deeds for the conveyance of land, by way of sale or gift, are treated under the heads of Alienation and Acquisition; Gifts; Sales. Other important deeds are the Ketubah, or marriage contract; deed of Lease.