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Shabbat Parashat Matot Masei 5775

P'ninat Mishpat: A Document with Unfit Witnesses and the Partys Signature

(based on Shut Chatam Sofer, Choshen Mishpat 40)

Case: Reuven wrote a will in which he granted many gifts “for the benefit of his soul” to different needy recipients. He used the system of a gift of a healthy person that begins at the time it is granted and is completed after death. The will said that he performed a kinyan to finalize the gifts. The two signed witnesses are pasul to be witnesses for the will (one is Reuven’s relative, and one has an interest in the fulfillment of the will). On the other hand, the language of the will is that Reuven accepts the witnesses as kosher to effectively perform the kinyan and that anyone’s attempt to disqualify the document should be null. Reuven is signed on the will above the witnesses’ signatures. 

 

Ruling: The querying rabbi suggested that Reuven’s signature affixed to the provisions of the will should be considered accepting upon himself unfit witnesses counting to obligate him as kosher ones (see Shulchan Aruch, Choshen Mishpat 22:1). Although accepting two different disqualifications could be seen as making double allowances for witnesses (classically, one pasul witness in place of two kosher ones), which usually does not work (Rama ad loc.), here it may not be considered two allowances. Additionally, the problem is overcome by making a kinyan, and according to some, even the party’s signature attesting to the kinyan suffices.

However, this approach is not correct here for two reasons. One is that Reuven signed above the witnesses, and therefore it is not evident that his acceptance of the witnesses relates to those who signed after him. Perhaps his plans were that kosher witnesses would sign and then these two signed in their places. We have a similar concept regarding one who signed a loan contract as a guarantor after the signatures of the witnesses, in which case we say that the witnesses do not relate to the guarantor. The Nachalat Shiva raises the question on the minhag in some places that the groom signs the ketuba in addition to the witnesses – what does his signature add? The querying rabbi suggested that it is to cover a case where the witnesses turn out to be pasul, as the groom can thereby accept them anyway. However, based on what we said, this will not work as the minhag is that the witnesses sign after the groom, and additionally the problematic status of the witnesses was not known at that time.

Secondly, Reuven’s acceptance would work only if Reuven were a litigant who was trying to get out of payment. In this case, Reuven is dead, and the litigants are Reuven’s inheritors, who raised questions about the authenticity of the will. The Shulchan Aruch (CM 108:18) says that if one accepts to make payment of a debt from more desirable than necessary property, it is binding only on him and not on his inheritors unless he obligated them explicitly. In this case, there was no such provision.

Therefore, the inheritors do not have to accept the validity of the will.
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