1)

CONDITIONS FOR VALIDITY OF NOCHRI COURT DOCUMENTS [Dina d'Malchusa: court documents]

(a)

Gemara

1.

10b (Mishnah): All documents written by Nochri courts, even though Nochrim signed them, are valid, except for Gitei Nashim or freedom;

2.

R. Shimon says, even these are valid. They are Pasul only when done by commoners.

3.

(R. Zeira): R. Shimon holds like R. Elazar, that Edei Mesirah (the witnesses who saw a document given) Karsei (empower the document).

4.

The Mishnah does not distinguish between documents of sale and gift.

5.

Question: Granted, documents of sale are valid. The giving of the money made the acquisition, the document is merely a proof. The judges would not write a document if the money was not given, for this would damage their reputation.

6.

Answer #1 (Shmuel): Dina d'Malchusa Dina (the law of the kingdom is binding. Their law is that court documents transfer property.)

7.

Answer #2: The Mishnah should say 'except for documents like Gitei Nashim (i.e. that are not merely proofs, but change ownership or status).

8.

11a: Ravina was about to accept monetary documents made in gatherings of Nochrim.

9.

Rafram: The Mishnah accepts only those made in their courts.

10.

(Rava): A Persian document given in front of Yisrael witnesses may be used to collect from Bnei Chorin (the borrower's property, but not from what he sold).

11.

Questions: The witnesses cannot read it! Also, we require writing that cannot be (erased and) forged! Also, the last line must summarize the document!

12.

Answer: The case is, the witnesses can read it; the paper was treated with gallnuts (it cannot be erased), and the last line summarizes the document!

(b)

Rishonim

1.

Rif (4a): Ravina was about to accept monetary documents made in gatherings of Nochrim. Rafram said that the Mishnah accepts only those made in their courts, which do not accept bribes.

2.

Rambam (Hilchos Malveh 27:1): Any document signed by Nochrim is Pasul, except for a sale or loan document. It is Kosher if the money was given in front of them and they wrote this in the document. This is if it was made in Nochri courts. Judicial gatherings without Kiyum of the judge do not help. Also, Yisrael witnesses must testify that the Nochrim who signed and the judge are not known to take bribes. If any of these conditions are lacking, the document is worthless.

3.

Rosh (ibid.): I am unsure what the Rif means. Perhaps he teaches that Stam courts of Nochrim do not accept bribes, but we suspect gatherings. Or, he requires that we know that the court does not take bribes. The Rambam requires Yisrael witnesses to testify that the Nochrim who signed and the judge are not known to take bribes. This is difficult, for then the law almost never applies! Stam Nochrim take bribes (Shabbos 116b)! Rather, Stam courts do not take bribes.

i.

Beis Yosef (CM 68 u'Mah she'Chosav and DH Shitrei (1)): Indeed, Stam Nochrim take bribes, but if judges have been judging and we find no problem with them, we do not remove their Chezkas Kashrus without proof. We follow the Rambam, for the Ramah agrees, and it seems that the Gemara and Rif agree. The Rashba (10b DH Aval) found a Teshuvah of the Rif like him.

4.

Rosh (11): All the questions asked about why a Persian document is Kosher could be asked about a court document. They were asked about a Persian document, for they do not apply to court documents so much.

(c)

Poskim

1.

Shulchan Aruch (CM 68:1): Any document signed by Nochrim is Pasul, except for a sale or loan document. It is Kosher if the money was given in front of them and they wrote this in the document.

i.

SMA (3,4): Court documents help when they are merely a proof for the transaction. Even if the seller denies it, we rely on courts like we rely on Beis Din.

2.

Shulchan Aruch (ibid.): This is if it was made in Nochri courts. Judicial gatherings without Kiyum of the judge do not help.

3.

Rema: Even if the court already ruled according to the document, and established that the buyer gets the property, it is worthless.

4.

Shulchan Aruch (ibid.): Also, Yisrael witnesses must testify that the Nochrim who signed and the judge are not known to take bribes. Then, we can use the document to collect from Bnei Chorin. If any of these conditions are lacking, the document is worthless.

i.

SMA (5,8): The witnesses saw the transaction and the court validated it, just like our documents. Therefore, we need testimony that the witnesses and the court are Kesherim. The other opinion (later, in the Rema) is like the Rosh. It argues about four things. Witnesses do not sign until the court clarifies the matter and orders them to sign. Therefore, we need not know that the witnesses are Kesherim. Also, we assume that the court is Kosher, and ordered to sign only after seeing the money given, and there is a Kol (publicity) to court documents.

5.

Rema: A book in which the courts write is like their documents.

i.

Source (Rashba 3:15, cited in Beis Yosef DH v'Chosav Od ha'Rashba): We rely on the judge. He would not ruin his reputation by writing Sheker in his book. He relies on his book! Therefore, we cannot distinguish between his book and his documents.

6.

Rema: Some say that Stam courts do not take bribes, so we use the document to collect from Meshubadim, even without Edei Mesirah Yisrael.

i.

Source (Gra 7): R. Zeira taught that R. Shimon holds like R. Elazar, that Edei Mesirah Karsei. This implies that the first Tana is Machshir without Edei Mesirah Yisrael.

7.

Rema: This is even if the judge did not sign to validate the witnesses. As long as it was made in the courts, they do not lie and ruin their reputation. This is even if there are rumors that they take bribes to pervert the ruling. The document need not say that they saw the money handed over. We assume that they surely saw.

i.

Taz (DH Yir'eh): The Rosh did not say that we believe the judges, rather, we rely on them. This connotes there is something not clear. I.e. the document does not say that they saw the money given; we rely on the judges, that they would not write had they not seen the money given.

8.

Rema: We do not distinguish whether one or two Nochrim signed, as long as it was in front of the judge. If the appointed scribe wrote it not in front of the judge, it is worthless. However, where it is Dina d'Malchusa to accept a document of the king's scribe, it is valid.

i.

Beis Yosef (DH Kosav ha'Rashba bi'Teshuvah): The Rashba (982) says that even where the judge appoints a youth to write it and the judge validates it even though he himself does not know, we are not concerned. He would not do so if he did not know that the youth never lies.

9.

Rema: If a document that we accept due to Dina d'Malchusa was not written according to their laws, even if it is proper according to our law, it is Pasul. We are not Machshir more than they are. The same applies oppositely, if it is Pasul according to our laws, and proper according to theirs. Some disagree.

i.

SMA (17): Dina d'Malchusa is only to be Machshir the document and trust the scribe, but not regarding the methods of Kinyan. Nochrim in different places have different Kinyanim.

ii.

Gra (22): The latter opinion is not concerned if it is Pasul according to our laws, since it is Kosher due to Dina d'Malchusa. This is why the Gemara asked that a Persian document is Pasul according to our law, but did not ask regarding court documents.

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