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Forgery

Forgery of documents is not, either in biblical or in talmudic law, a criminal offense: it may be an instrument for the perpetration of *fraud and come within the general prohibition of fraudulent acts (Lev. 19:35; Deut. 25:13–16) or fraudulent words (Lev. 25:14). Nevertheless, it is a recognized evil which the law is called upon to prevent, and there are detailed provisions in the Talmud for the making of legally binding documents in such a manner that they cannot be forged: thus, documents must be written on and with material that cannot be effaced (Git. 19a et al.) and is enduring (Git. 22b, 23a); precautions must be taken that no space be left between the text of the document and the signatures, so that nothing could be inserted after signing (BB 162–7). The rule evolved that a document (*Shetar) was valid only if executed in the manner of unforgeable bills (Ke-Tikkun Shitrei Yisrael she-Einan Yekholin le-Hizdayyef) to which nothing could be added and from which nothing could be erased (Maim. Yad, Malveh ve-Loveh 27:1).

Where a document appeared on the face of it to have been tampered with or added to, so that a suspicion of forgery arose in the eyes of the court, recourse was had to compulsory measures in order to induce the plaintiff to confess that he was suing on a false document (BB 167a). It is not clear what these compulsory measures were: literally translated, the reports say that the plaintiff was "bound, and then admitted the document to be false" (the word used for "binding" is the same as that used for the binding of a person to be flogged (cf. Mak. 3:12), as distinguished from and preliminary to the *flogging itself (Mak. 3:13); or for the functions of non-judicial officers attached to the courts, who "bind and flog people on orders of the court"; Rashi to Deut. 1:15). The binding (koftin) was later interpreted to mean compelling (kofin; Meir ha-Levi Abulafia, quoted in Beit Yosef, ḤM 42 n. 3–5), and the compulsion was authorized to be carried out by floggings (Tur and Sh. Ar., ḤM 42:3). It is, however, to be noted that these floggings – or any other compulsory measures – were not sanctions or punishments imposed for forging the documents, but only means to extort confessions of forgery: when a forgery was admitted or proved, the only sanction was that the claim based upon any such forged document was dismissed. It was only in much later times that forgers were punished by the courts, or more often – presumably because of the private law character of forgery in Jewish law – delivered for trial and punishment to the gentile courts (Assaf in bibliography, nos. 16, 112, 144). Even the notion that forgers of documents could be disqualified on that account from testifying or taking an oath was dismissed as unwarranted (Ḥatam Sofer, ḤM 39; Pitḥei Teshuvah, ḤM 34:7, n. 17).

In order to have a claim based on a document dismissed, it was not always necessary to prove that it was false – in certain circumstances it sufficed that it was reputed to be false (Ket. 36b; Maim. Yad, Edut 22:5). On the other hand, even the admitted forgery of a document would not necessarily vitiate a claim, as where a true document had been in existence and lost (BB 32b; Yad, To'en ve-Nitan 15:9). A man ought not to lend out his seal, so as not to tempt others to use it without his authority (BM 27b; Yev. 120b); his seal appearing (e.g., on a barrel of wine), it is presumed not to have been tampered with (Av. Zar. 69b). In the State of Israel, the Criminal Law Amendment (Offenses of Fraud, Extraction and Exploitation) Law 5723 – 1963 replaced the Criminal Code Ordinance 1936 mitigating the previous penalties for forgery (other than forgery of bank notes).

BIBLIOGRAPHY:

M. Bloch, Das mosaisch-talmudische Polizeirecht (1879), 39, no. 20; Gulak, Yesodei, 2 (1922), 134–6; 4 (1922), 165–7; S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922), passim; A. Gulak, Urkundenwesen im Talmud (1935), passim. ADD BIBLIOGRAPHY: Elon, Ha-Mishpat ha-Ivri (1988), I, 642; Idem, Jewish Law (1994), II, 795.