1) SIGNING A PAPER BELOW A BLANK SPACE

QUESTION: Abaye teaches that when a person wants to show his signature in Beis Din, he should not sign his name on a document with a blank space above his signature, lest an unscrupulous person find that document and fill in the blank space with false information about a debt that the signatory owes him.

When a lender demands payment from a borrower and provides a signed document as proof of the loan, the borrower cannot simply exempt himself by claiming that the lender found his signature on a blank document and wrote a Shtar above the signature. There are many details involved in making such a claim. If the borrower says that he never borrowed money and that the claimant probably found his signature at the bottom of a blank piece of paper, Beis Din accepts his claim if he makes a Shevu'as Heses. The ARUCH HA'SHULCHAN (CM 69:3) points out that Beis Din does not make such a claim for a person who is unsure about how his signature made its way onto a loan document, especially if he expresses even a slight possibility that he might have taken such a loan. If, however, there is a clear incongruity between the signature and the rest of the writing on the document, his claim may be more successful (see SHEVUS YAKOV 1:149).

Does Abaye's warning apply only to documents that a person discards, or also to document that he keeps in his house?

ANSWER: Although this Halachah clearly applies to documents that a person discards, caution is due even with documents that one generally keeps in his home, as is evident from the following case which was brought before Dayan Yisrael Yaakov Fisher zt'l. Two people (Reuven and Shimon) learned together as Chavrusas for a long time. One day, Reuven told Shimon that the time had come for Shimon to repay the ten thousand dollar loan which he had given him. Shimon was stunned. He had never borrowed such a large amount of money from Reuven! After expressing his disbelief, Reuven promptly pulled out a Shtar with Shimon's signature, which stated that Shimon owed ten thousand dollars to Reuven. Shimon could not believe his eyes; the handwriting definitely was his, but he had no recollection of such a loan. The two Chavrusas agreed to go to Dayan Fisher to settle their dispute. After questioning the parties involved and hearing the details of the case, Dayan Fisher dismissed them. He then told his attendant to summon Shimon and tell him to come immediately.

When Shimon arrived, Dayan Fisher asked him, "Did you ever lend any Sefarim to your Chavrusa?"

"Well," Shimon said, "I have been learning with Reuven for a long time, and I certainly must have lent him some Sefarim at some point or another."

"Do you remember which Sefarim you lent him?"

"No," Shimon said.

"Did he ever borrow a Sefer and not give it back to you?" Dayan Fisher asked.

"No," Shimon said.

"Then you must bring me all of your Sefarim, or look through all of them yourself," Dayan Fisher responded.

Thoroughly bewildered, Shimon said, "May I ask the Rav what my Sefarim has to do with the dispute about the loan?"

Dayan Fisher explained: He suspected that Reuven borrowed a Sefer from Shimon and cut out the page on which Shimon had written his name, and wrote above Shimon's signature a Shtar stating that Shimon owed him ten thousand dollars.

Indeed, after many hours of searching through his Sefarim, Shimon found a Sefer that he had lent to Reuven from which the title was cut out. Although most people sign their names on the top of the first page of their Sefarim, Shimon's practice was to write his Sefarim in the middle or towards the bottom. This left him an easy target for his unscrupulous study partner, who would have taken advantage of him if not for the sharp thinking of Dayan Fisher, who successfully extracted a confession from Reuven after confronting him with his conclusion. (Y. MONTROSE)

167b----------------------------------------167b

2) REBBI YIRMEYAH BAR ABA'S TESTIMONY

OPINIONS: The Gemara discusses how witnesses may accurately identify the persons mentioned in a Shtar. It records two incidents wherein Rebbi Yirmeyah bar Aba signed a receipt attesting that a woman had collected her Kesuvah from her former husband. In the first incident, the woman claimed that she never received her Kesuvah and that the receipt that her former husband is holding must be the receipt of a different woman who was divorced from a different man, who happened to have the same names as they have.

The commentaries understand the rest of the incident, as well as Abaye's comments, in different ways.

(a) The RASHBAM (DH Hahu Tavra) understands that Rebbi Yirmeyah told the woman that he had told the other witnesses who signed the receipt that this was not the woman for whom they signed the receipt. He continued, however, and told her that the other witnesses argued that he had made a mistake and that this indeed was the woman for who they had signed the receipt. She merely looked different because she was older and her voice had changed. Rebbi Yirmeyah then told the woman that he agreed with the other witnesses.

Abaye comments that although, generally, a witness is not permitted to retract his testimony, a Talmid Chacham who does not normally examine the woman for whom he is signing may retract his testimony.

In the second incident, Rebbi Yirmeyah signed a receipt as a witness and was approached with the same claim by the woman. This time, Rebbi Yirmeyah firmly said, "It was you." Abaye comments that when a Talmid Chacham expresses certainty about the identity of the woman for whom he signed, his testimony is accepted.

TOSFOS (DH Keivan) has difficulty with the last statement of Abaye. If a Talmid Chacham may retract his testimony because he is not expected to be able to identify the woman for whom he signed, then when he is certain that he can identify her, what question could there be with regard to the validity of his testimony? What is Abaye adding to the Gemara?

(b) Tosfos therefore states that Abaye's second statement is the opposite of his first statement. When a Talmid Chacham testifies about only a probable identification, he may change his mind later. If he is absolutely certain about the woman's identity, then he may not change his mind later.

(c) The RASHASH understands the Gemara differently. He understands that Rebbi Yirmeyah told the woman, "When I originally signed the receipt, I did not think that the woman who was present was you. However, the other witnesses told me that it indeed was you. They identified you by your voice, and they said you had the same voice as the woman for whom I signed the receipt, and that it changed slightly because you grew older." Rebbi Yirmeyah then added, "However, I now realize that the woman for whom I signed indeed was not you."

The Rashash understands that in Abaye's first comment, Abaye allows Rebbi Yirmeyah to retract his positive identification of the woman when he signed the receipt, since signing in essence is testimony, and a Talmid Chacham is not expected to identify the woman correctly. The NIMUKEI YOSEF suggests a similar explanation.

The Rashash points out that according to this explanation, Tosfos' question (DH Keivan) is not a question. The first case refers to a Talmid Chacham who never thought that the woman making the claim now was the woman for whom he signed. He may retract his testimony since he does not always analyze the identity of a woman. However, when he is certain that this is the woman for whom he signed (when he signs or witnesses something), he may not say later that he made a mistake. (Y. MONTROSE)

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