The Role of Eidim in Constructing a Shetar
By Rav Moshe Taragin
Shiur #13: The Role of Eidim in Constructing a Shetar
Typically, eidim deliver their testimony in front of a beit din, which then proceeds to cross examine them and verify that testimony. Halakha also allows for testimony to be delivered through a written document, which in many ways circumvents the standard interrogative procedures of beit din.
Rav Chaim Brisker (and others) posed an interesting question about the relationship between signatories on a shetar (eidim) and the actual shetar. Is the shetar merely the VEHICLE for recording the written affidavit and conveying it with the standard interrogative procedures governing verbal testimony? From this perspective, the shetar is a “testimony-carrier;” by affixing their names to the shetar, the eidim are merely submitting their eidut to be loyally presented by the shetar.
A very different view suggests that signatures of eidim do not (merely) constitute the actual TESTIMONY of a shetar. Rather, a document's STRUCTURE requires signatories. Without witnesses’ names on the document, the document cannot be halakhically considered a shetar. As Rav Chaim coined it, the eidim are “ashvuyei shetara” (manufacturers of the shetar), and not simply witnesses who enter their testimony to the shetar as a carrier.
Keep in mind that even if the eidim are necessary to fashion a shetar, they may ALSO constitute the actual testimony of a shetar.
The role of the eidim of the shetar may impact a related question: Is the shetar merely the voice of the recorded eidim or does it entail a separate halakhic. Unquestionably, if the shetar possesses an independent voice, the eidim are not entering their testimony, but merely affixing their signatures to constitute the necessary structure of a shetar. Alternatively, if the shetar is merely the recorded voice of the eidim, they are entering their eidut to be conveyed by the shetar as carrier, and they are not merely serving as building blocks for a shetar but as the voice of testimony within the shetar. This shiur will discuss the relationship between the eidim and a shetar and not probe the related question of whose voice is emitted from a shetar.
The role of eidim vis-Ã -vis a shetar may certainly have influenced the machloket between R. Meir and R. Eliezer regarding whether eidei chatima or eidei mesira are primary. If eidim form the substructure of a shetar, we would certainly require them to PHYSICALLY affix their names to the actual shetar. If, however, a shetar is formed without eidim and the eidim merely supply their testimony for the shetar to convey, we would not demand physical appending. In fact, their presence at the POINT OF ISSUING the shetar may be more significant.
Perhaps the clearest indication that eidim are structural elements of a shetar and not merely depositing their testimony to the shetar is the fact that there are scenarios in which more than TWO signatures upon a shetar are required. From a legal standpoint, the testimony of 3 eidim is no more powerful than the testimony of 2. As the gemara constantly reminds, us “trei ke-mei'ah” – two eidim are equivalent to 100. If eidim who sign a shetar are merely submitting their testimony, it would be impossible to require more than 2 signatures; once two eidim sign, the maximal testimony has been recorded. Yet the mishna in Bava Batra (160a) describes a “get mekushar,” which requires a minimum of 3 eidim. The gemara cites several opinions that view this requirement as fundamental, based on various pesukim describing the format of a shetar. How could there be a fundamental requirement to supply more than two eidim when these extra signatures have no halakhic import? Evidently, by affixing their names to a document, the eidim are actually FASHIONING the document, and there may be a type of shetar that must be built upon more than two eidim.
Ultimately, the gemara asserts that NO shetar fundamentally requires more than two eidim and the multiple eidim requirement is only a rabbinic decree for procedural concerns. Yet the initial reasoning, which assumed that multiple eidim were fundamentally necessary, may indicate that eidim do not merely deposit testimony, but help craft a legal shetar.
A similar notion emerges from an interesting machloket between Reish Lakish and R. Yochanan (Gittin 18b) concerning someone who instructed ten people to author and sign his document, even though two signatures would have sufficed. R. Yochanan claims that in this instance, since the shetar authorizer requested "kulchem" (“you should all sign”), they all must sign to fulfill his condition (tenai). As a pure shetar, only two signatures are necessary, but because of the extrinsic conditions stipulated by the shetar authorizer, all must sign (just as other stipulated but extrinsic conditions must be met). However, as the extra eidim are not signing as formal witnesses but merely to fulfill the external wishes of the shetar authorizer, they do not have to adhere to all the halakhot which govern the signing of a shetar.
Reish Lakish, in contrast, claims that ALL 10 witnesses are essential to the shetar; without all the signatures, the shetar is deficient of the requisite number of halakhic witnesses. Again, we encounter a situation of a shetar that fundamentally requires eidim whose signatures add NOTHING to the actual testimony. Undoubtedly, these eidim aren’t depositing testimony but helping to craft the shetar.
Rav Chaim derived a contrary proof from an interesting Tosafot in the beginning of Gittin. The gemara (2b) debates how many witnesses are required to verify a shetar. Is the notarization of a shetar similar to standard erva-based situations, which require testimony of two witnesses? Or since its only preliminary, can we treat it like regular issurim, which only require one eid? Tosafot (2b) (s.v. eid echad) assert that the fact that a get must be signed by two witnesses should indicate that all get related matters require two eidim as classic erva cases. Tosafot attempt to prove the level of verbal testimony that a get requires from the sum of eidim within a get. If the eidim in a shetar or get were necessary not to deposit their proof, but rather to craft a shetar, we could not deduce testimony requirements from the requisite number of eidim necessary to fashion a shetar. Evidently, eidim do not fashion the shetar, but rather use a shetar as a vehicle to convey their testimony. Thus, if written testimony of a get requires two eidim, verbal testimony about a get (verifying the get) should similarly require two eidim.
An extremely radical statement by the gemara may indeed prove that eidim are not testifying through the shetar, but merely affixing their names to the get as part of its manufacture. The gemara in Gittin (19b) discusses illiterate eidim who cannot read the content of the get. The gemara allows others to read the get to them so that they can sign. Presumably, this same allowance would apply to standard monetary shetarot. The Rishonim question this scenario. Information about which verbal eidim testify must be gathered firsthand; eidim must witness an event themselves in order to testify about it. If they receive second-hand information through the report of another person, they cannot testify, as such information, “eid mi-pi eid,” is not valid evidence. How can signatories of a shetar discover the content of a shetar second hand without violating eid mipi eid!!
Some Rishonim (see Tosafot Ha-Rosh) claim that the eidim in this case were not truly illiterate, but rather needed minor assistance to decode or understand a text that they were personally reading. Others (see Ramban) suggest that certain minor information about the testimony CAN be acquired through second-hand information. Tosafot (9b), however, seems to suggest a very different and radical idea – that the signatories of a shetar can sign even without truly knowing the content of shetar. They must identify the shetar they are signing on – otherwise they may be accomplices in fraud – but they need not know the CONTENT of the shetar in order to testify through it. They are merely affixing their names to the shetar so that the shetar ITSELF can testify. (Even if Tosafot do not intend this approach, the Even Ha-Azel, Ishut 3:15, states this approach clearly.)
If eidim can sign a shetar without knowing the content of a shetar, they are evidently not depositing their testimony by signing a shetar. They are merely affixing their names to the shetar to provide the substructure of the shetar. As long as they know WHAT they are signing (even through the instruction of another), they may participate in the construction of this shetar.