The general rule of evidence is that a fact can be established only by the testimony of two witnesses. With the introduction of writing and the custom of making written records of the transactions, the strictness of the rule requiring the actual presence of the witnesses to deliver their testimony orally was relaxed, and a written instrument setting forth the fact and subscribed by two witnesses was considered evidence of equal validity. In Jewish law a written instrument by which a person bound himself to do or pay something was usually prepared by the witnesses or under their direction, and not by the person charged thereby; nor did the debtor or obligor, as a rule, sign the instrument. The distinction, therefore, between the attestation of witnesses in Jewish law and in modern law lies in the fact that in the latter the subscribing witnesses attest the genuineness of the signature of the debtor, whereas in Jewish law they attest the fact that the transaction purported in the instrument to have occurred actually did occur. It is the substance of the instrument, and not the signature of the obligor, that is proved by the attestation of the subscribing witnesses. The formula of attestation varies. An approved formula is the following:

"We [the witnesses] have taken symbolic possession ["Ḳinyan sudar"] from.........., the son of........., according to all which is written and expressed above, with an article that may be used for taking symbolic possession, of.....; and all is fixed and established. ".........., the son of............, a witness. ".........., the son of............, a witness."

An older formula reads simply:

"We have written and signed our names here on this [date]; and all is fixed and established."

[Names of witnesses.]

Inasmuch as the testimony of the subscribing witnesses goes to the substance of the instrument, the formalities required are numerous; and great strictness is observed in enforcing them, although such strictness is relaxed in the cases of bills of divorce and bills of manumission of slaves.

Mode of Attestation.

The witnesses must read the document word for word before they sign it. It is not sufficient if some one else reads it to them, though some authorities are of the opinion that it may be read to them by two other persons. If the document is prepared in a language unknown to one of the witnesses, and has been translated for him, the document is valid (Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 45, 2). The witnesses must know both parties and their names, or have them properly identified by others, for the obvious reason that in the absence of the signature of the party bound, fraud in the preparation of the instrument would be more possible. In the case of a bill of sale or an instrument of indebtedness, the later law somewhat relaxed the rule, and provided that the witnesses need know only the seller or the debtor, these being the persons to be bound respectively by these instruments (ib. 49, 2). According to Maimonides, however, the strict rule requiring the witnesses to know both parties can not be relaxed ("Yad," Malweh, xxiv. 3). The witnesses must sign their own names; and illiterate witnesses, unable to write, are incompetent; thus, even if some one have traced the signature for the witness and the latter have written the letters over the tracing, it is invalid; although some authorities are of the opinion that in such cases the witness is considered competent, especially so in cases of bills of divorce.

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 (Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 45, 5).

Connection with Body of Deed.

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 the danger of any addition thereto after the witnesses had subscribed, attempted to prevent the addition of such matter by the rule quoted by Rab 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 line 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 interpolation.

Another rule is cited in the name of Rabbi Johanan: "Some of the substance of the document is repeated in the last line" (B. B. 161b). 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 the instrument. If, therefore, the signature of the witness is at a distance of a line or a little more than a line from the body of the instrument, no interpolation could take place. But if the signatures are two 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 (Ḥoshen Mishpaṭ, l.c. 6). The formula "Everything is fixed and established" () is universally recognized as the end of the instrument, and, as anything appearing thereafter would be immediately recognized as an interpolation, the strictness of the above rule seems to be unnecessary; yet the rule was nevertheless not relaxed, upon the ground that that which is not done according to the ordinance of the sages is not valid ("Be'er ha-Golah" on Ḥoshen Mishpaṭ, l.c.).

Deeds of Indebtedness.

An instrument of indebtedness duly attested by two witnesses is in some respects equivalent in its effect to an instrument which has been made a matter 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 purpose of collecting his claim, even though the property has been transferred to third persons bona fide, because all persons are presumed to take such property subject to the lien of the debt, since the instrument 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).

The rule of law providing that at least two witnesses must 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 instrument, he is obliged to take the oath of purgation (B. B. x. 1; Ḥoshen Mishpaṭ, 51, 2). For although 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 Heṭeb" on Ḥoshen Mishpaṭ, l.c.). 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 Shulḥan '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 (Ḥoshen Mishpaṭ, 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 (ib. 45, 17).

Bills of Divorce and Manumission.

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 manumission 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 witnessesto the Geṭ was ordained by Rabban Gamaliel as a matter of public policy, in order to facilitate the proof of legal documents (Giṭ. iv. 3); but after this ordinance it was still for a long time maintained by the authorities that where there were no subscribing witnesses, but the geṭ had been properly delivered to the wife in the presence of witnesses, it was valid, and could be proved by the witnesses of the delivery (ib. ix. 4). Although the general rule required that the witnesses should be personally acquainted with the parties, yet in cases where the exigencies of the situation made it impossible to follow the usual formalities, a bill of divorce was permitted to be delivered to the wife, even though the witnesses did not personally know the parties (Giṭ. 66a). If the witnesses did not sign their full names, or omitted the words "a witness," following their names, it was nevertheless presumed that they wrote their names with the intention of being witnesses to the document, and hence the attestation was deemed valid (ib. ix. 8).

There was one exception to the general rule that two witnesses are sufficient to attest any instrument: this was a curious form of a bill of divorce known as "the folded geṭ." It was prepared in the following manner: A line was written, the parchment was then folded and fastened, and a witness signed on the back of the fold; then another line was written, and the parchment again folded and fastened, and this fold likewise attested by another witness; and as there were not less than three folds, there could not be less than three witnesses (B. B. x. 1, 2), because of the rule that the folded geṭ must have as many witnesses as it has folds; and if one fold was blank, the geṭ was called "a bald geṭ," and was void (Giṭ. viii. 9, 10). This form, however, was no longer used in Talmudic times. Such instruments are declared absolutely void by the later law (Ḥoshen Mishpaṭ, 42, 1, gloss).

  • Frankel, Der Gerichtliche Beweis, pp. 399 et seq.;
  • Bloch, Die Civil-Process-Ordnung, pp. 53 et seq.;
  • Klein, Das Gesetz über das Gerichtliche Beweisverfahren, pp. 17 et seq.;
  • Amram, Jewish Law of Divorce, pp. 171 et seq.
  • See also the articles Divorce, Deeds, Documents, Evidence.
J. Sr. D. W. A.
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