1) WHY OUR "SHTAROS" ARE WRITTEN DIFFERENTLY FROM THE "SHTAROS" IN THE TIME OF THE GEMARA
QUESTION: The Gemara states that the "Shitah Acharonah," the last line of a Shtar before the signature of the witnesses, is filled with a summary of the Shtar and contains no information that is not written already in the Shtar. The purpose of this line is to ensure that the space between the body of the Shtar and the witnesses' signatures cannot be filled with any forged information which might change the nature or content of the transaction. The Gemara says that nothing may be derived from this line of the Shtar, even if it happens to contain new information. The RASHBAM (DH Amar Rav Amram) explains that the Gemara refers only to Shtaros which do not have the words "Sharir v'Kayam" at the end. If the Shtar has those words, then information may be derived from any line of the Shtar, even the last line. The words "Sharir v'Kayam" confirm the authenticity of everything written in the document.
TOSFOS (DH Lefi) agrees with the Rashbam. He notes that in the times of the Gemara they apparently did not write "Sharir v'Kayam" in ordinary Shtaros. Today we write "Sharir v'Kayam" in all of our Shtaros, and therefore we may derive information from every line of the Shtar, even the last line. Tosfos notes that we even accept verification of erasure (when different parts of the Shtar had to be erased) at the end of the Shtar (after "v'Kanina Minei"). Tosfos questions this change, however; the way Shtaros were written in the times of the Gemara seems much better. Since there is no requirement that one must write "Sharir v'Kayam" at the end of a Shtar in order that it be valid, one might have a Shtar in which "Sharir v'Kayam" was not written. An unscrupulous person might erase some words, add more information, verify that there was some erasing and write "Sharir v'Kayam." Since the practice of writing "Sharir v'Kayam" may lead to forgeries, why do we write Shtaros in this way?
ANSWER: TOSFOS answers that since the custom has evolved that today we always write "Sharir v'Kayam" in a Shtar, a Shtar without those words is invalid. Consequently, it is highly improbable that anyone would write a Shtar without the words "Sharir v'Kayam."
However, this change leaves the obvious question unanswered. Why has the way in which Shtaros are written today changed from the way they were written in the times of the Gemara?
1. Tosfos explains that the customary way of writing Shtaros changed because of a suspicion that witnesses might not realize how they are supposed to sign the document, and they might distance their signatures two lines from the body of the Shtar. Consequently, the last line would be the customary Shitah Acharonah, while the person holding the Shtar could write whatever he wants in the line above the Shitah Acharonah. On the other hand, if the words "Sharir v'Kayam" are always written at the end of the Shtar, everyone will know that they must verify that the information contained within the Shtar is accurate.
2. However, Tosfos quotes the RI who noted (after the death of Rabeinu Tam) that RABEINU TAM indeed maintained that no information may be derived from the last line of a Shtar, even though the words "Sharir v'Kayam" are written at the end of the Shtar. Whenever there was an erasure in the body of the document, Rabeinu Tam would verify the erasure before the Kinyan ("v'Kanina Minei"). He would use the last line only to verify things that were written more than once in the Shtar.
3. The Ri himself understands that the reason why the summary of the Shtar was eliminated was to avoid an erasure in the summary of the Shtar (for example, they would erase some words in the summary when they found that it was difficult to fit the entire summary in the last line). Although the rule is that no information may be derived from the last line of the Shtar, that rule refers only to information that is in favor of the bearer of the Shtar, and it is intended to ensure that he does not forge any benefits for himself. However, we may derive information from the last line of the Shtar which benefits the other party. Accordingly, if a mistake was made in the summary of the Shtar it would have to be verified, since the other party may claim that he had an extra right included at the end of the Shtar that was erased. This would be difficult, however, since the information was at the end of the Shtar. It was therefore decided to avoid this possible dilemma by merely writing at the end of the Shtar the words "Sharir v'Kayam." (Y. Montrose)
162b----------------------------------------162b
2) WHEN DOES ONE "KAROV" OR "PASUL" INFLUENCE THE STATUS OF THE ENTIRE GROUP?
QUESTION: The Beraisa states that if four or five witnesses signed a Shtar and one was found to be a Karov (relative) or Pasul (disqualified) from testimony, the testimony of the other witnesses nevertheless remains valid as long as they are valid witnesses. This statement seems to contradict the Mishnah in Makos (5b). The Mishnah there quotes Rebbi Akiva who says that if one of a group of witnesses who testify before Beis Din is found to be a Karov or Pasul, the entire group is disqualified. What is the difference between the Beraisa here and the Mishnah in Makos?
ANSWERS:
(a) TOSFOS (DH Nimtza) answers that the Beraisa refers to testimony in a Shtar, while the Mishnah in Makos refers to oral testimony presented to Beis Din. When all of the witnesses saw the event with intent to give testimony, they are considered a single group and the disqualification of one disqualifies the entire group. The Beraisa, in contrast, refers to a Karov or Pasul whose signature appears in the middle or at the end of the signatures. This shows that his signature was not really meant as testimony, and was probably included only to fill up the space towards the bottom of the Shtar. Therefore, the signature of the invalid witness is of no consequence.
(b) The YOSEF DA'AS quotes RABEINU CHAIM HA'LEVI who explains that there is another fundamental difference between witnesses who give oral testimony and those who give written testimony. When witnesses come together as a group, they all give their testimony together in front of Beis Din. In contrast, witnesses on a Shtar may sign the same Shtar separately, when they are not even in each other's presence. (See Tosfos to Kesuvos 20a-b, DH v'Rebbi Yochanan, who writes that according to the RI one may bring to Beis Din two separate documents which state the same thing, with the signature of one witness on one document, and the signature of another witness on the second document, and Beis Din will consider it a valid Shtar with two witnesses.) Witnesses signed on a Shtar have less of a status as a group, and therefore they have less of an effect on each other's status.
(c) The Yosef Da'as quotes another explanation in the name of Rabeinu Chaim ha'Levi. He explains that technically one should not be able to give any kind of testimony via a Shtar. One reason for this is the Derashah which the Gemara often quotes (see Yevamos 31b): "mi'Pihem, v'Lo mi'Pi Kesavam" -- "from their mouths, and not from their writing." (The word "mi'Pihem" is not actually a verse, but rather a paraphrase of the verse, "Al Pi Shenayim Edim" (Devarim 17:6); see RASHI to Gitin 71a, DH mi'Pihem). Moreover, for witnesses to be valid, Beis Din must formally accept their testimony, but witnesses on a Shtar are usually not interviewed by Beis Din. The only reason why such witnesses are valid is that there is a Chazakah that witnesses who signed a Shtar are considered to have been examined and found worthy by Beis Din. However, Rabeinu Chaim asserts that this is true only when the witnesses are eligible to testify. If they are not eligible to testify, then clearly the Chazakah -- that their testimony is considered as though it was examined and found worthy by Beis Din - does not apply. Such signatures therefore are not considered to have been submitted for approval via this Chazakah, and they are not considered testimony, in contrast to witnesses who testify in from of Beis Din and are found to be a Karov or Pasul. (Y. Montrose)