ט׳ בתמוז ה׳תשע״ז (July 3, 2017)

Bava Batra 162a-b: A Validly Witnessed Document

In Talmudic times – as today – legal documents were signed by witnesses in order to ensure their accuracy and validity. Even signed documents, however, may be compromised, if they are signed in a way that will lead to questions or confusion.

The Gemara on today’s daf presents a baraita that teaches that if the witnesses did not sign immediately after the text of the document, i.e. if two lines or more were left blank, the document is no longer trustworthy. On the other hand, if there are four or five signatures on the document, even if one of them turns out to be disqualified as a witness – e.g. he was found to be related – the document may, nevertheless, be accepted if it can be affirmed based on the other, reliable signatures.

This straightforward ruling appears to contradict a Gemara in Massekhet Makkot (5b) where the ruling is that if a group of witnesses testified and one was found to be disqualified, the entire testimony is rejected.

Rabbeinu Tam is quoted as distinguishing between the two cases by differentiating between oral testimony, where all are considered a single group, and written signatures on a document where they are not. Other rishonim disagree with Rabbeinu Tam and argue that there is no difference between those two types of testimony. Most suggest that the ruling in Massekhet Makkot is limited to a situation where each witness intends to testify. In the case of a legal document, however, we cannot assume that everyone who signed had the intention to testify. It could be that additional names were added simply to fill in the empty space, to honor the guests or because one of the parties insisted that everyone in the room sign their names.

There is an alternative reading to this baraita – which appears in the tosefta in Gittin, according to which the document remains valid only if the problematic signatures appeared at the top of the list, since that is an indication that those names were signed just to honor the people and not because they were true witnesses.

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