SHETAR


SHETAR (Heb. שְׁטָר), formal legal document, or deed, derived from the Akkadian šatāru, meaning writing.

Early Examples

The term shetar is not found in the Bible, where the term sefer is used to denote a legal document, such as sefer keritut in Deuteronomy 24:1 for bill of divorce, or sefer ha-miknah in Jeremiah 32:11 for bill of sale. In tannaitic literature the terms iggeret, get, and shetar are commonly used to designate various types of legal documents. Subsequently, the word get acquired a more limited meaning, restricted to a document expressing legal separation such as divorce or manumission of a slave. In geonic times, the term ketav was frequently used to designate a legal document. The only legal document whose execution is elaborately described in the Bible is the one referred to in Jeremiah, which seems to have been written in duplicate, and was subscribed to by witnesses. One copy was sealed; a second copy was left unsealed for ready access. The sealed document is the antecedent of the "tied deed" known as a Doppelurkunde. Such documents were in wide use in the Near East during the period of the First and Second Temples.

The earliest known and extant collection of legal documents of Jewish origin is one from the Jewish garrison in Yeb of the fifth century B.C.E., written in Aramaic, known as the *Elephantine Papyri. It is a collection of 33 complete legal documents of various kinds, including a ketubbah. They resemble the basic forms of Jewish documents as used in talmudic and post-talmudic times. In the Book of Tobit (probably composed in the second century B.C.E.) 5:3 there is a reference to a deed of deposit as well as to a marriage document. There is sufficient evidence to conclude that forms of legal documents were already standardized during the last two centuries of the Second Temple. Recently there have been discovered, among the *Dead Sea Scrolls, legal documents dating from the first century C.E., which conform to the standards referred to in tannaitic literature. It is noteworthy that despite the large number of references to legal documents in tannaitic and amoraic literature, no complete form of legal contract or bill of indebtedness is recorded in the Talmud. There are, however, references to individual clauses and expressions, and their legal effects. It is evident that formalities were strictly adhered to, and that formularies, i.e., prototype standard forms, were available to the scribes, who would either copy the forms or merely fill in the particular information (Git. 3:2). These formularies related to every area of human relationship. Professional scribes were generally employed, and during the period of the Second Temple bonds of indebtedness were deposited in special archives for safekeeping (Jos., Wars, 2:427).

From the geonic period there is preserved a collection of 28 formularies attributed to Hai Gaon, who died in 1038 C.E. (see bibl.). Many later collections are extant containing different types of forms, some including additional provisions to meet the demands of new exigencies. Asher Gulak edited a thesaurus of such formularies (Oẓar ha-Shetarot, 1926), containing 403 different forms, each representing a particular type of deed. Among these forms are private documents, such as family and commercial agreements, as well as judicial and communal shetarot.

One of the earliest forms of documents was the "tied deed," get mekushar, which is described in the Mishnah (BB 10:2) and Tosefta (BB 11:1). It was a formal legal document wherein the agreement was written on one side and the document was then folded. The parchment was cut at the top in strips which were tied together, and three witnesses then signed between the knots on the reverse side. Such documents have been found among the Dead Sea Scrolls. The Talmud relates that this type of document was instituted by the rabbis to make it more time-consuming and more difficult for priests, who might on impulse divorce their wives and are prohibited from remarrying even their former spouses (Yad Ramah to BB 160b; see *Divorce; *Marriage, Prohibited). In contradistinction to the get mekushar is the get pashut, ("plain deed"), which is not folded and tied and requires only two witnesses. This is the form in use today.

Format of the Shetar

Every shetar, as a formal document, requires the signatures of witnesses. It does not require the signature of the obligor. Credence is given, however, to documents either signed or written by the obligor, but unwitnessed, and which otherwise do not comply with the formalities of a shetar. Such a document is called ketav yad ("his own handwriting"; equivalent to a memorandum), and has the status of an oral understanding with all its legal consequences and without creating a lien on reality (Tur, 69; see *Lien; *Obligations, Law of). The shetar is somewhat different from modern western forms of contract which recite the facts of an agreement. The shetar records the testimony of the witnesses who state that on a given day the named obligors appeared before them and said such and such. For many centuries documents written in Israel and the countries of the Middle East and Africa would usually refer to the date according to the Seleucid calendar ("Era of the Documents"). Documents written in Europe usually referred to the year since creation ("Era of the Creation").

For the purpose of analysis, a shetar may be divided into two parts. The first part is the tofes (typos, "frame"), which is the general section of the instrument. A stereotyped copy may be used, not prepared specifically for the contract being undertaken. It contains the standard words of the preamble and the close of the document, as well as the words of obligation and additional clauses which protect the obligee in every conceivable way permitted. The toref contains the names of the parties, the date, the nature and amount of the obligation. During the centuries in which Jewish civil law governed the internal economic relations between Jews, there developed additional clauses and provisions, which were inserted into shetarot mainly for the protection of the obligee. These clauses include the following:

(1) A credence clause (ne'emanut) in which the obligor under the agreement asserts that he relieves the claimant of any oath which may be necessary, and that he considers the claimant's testimony that he has not been repaid sufficient to preclude the obligor from raising such a defense. The basis for this clause is to be found in Shevu'ot 42a. There are, of course, variants in the wording of such clauses which may strengthen the position of the claimant (Tur, ḤM 61).

(2) The right to collect from the best of the obligor's property (shefer ereg nekhasin). Though according to the Talmud a creditor can recover first from the average quality real estate of the debtor, and a woman for her *ketubbah first from the least desirable land of her husband (see *Execution), this clause, which is found in the usual ketubbah and bill of indebtedness, improved the claimant's position, so as to recover from best quality realty.

(3) A clause allowing the claimant to recover costs of litigation (see *Execution).

(4) The obligor must sell his property to pay his obligation, rather than await a court sale (see *Execution).

(5) In some isolated cases there were even incorporated undertakings by the obligor of personal servitude or imprisonment in case of his default (see *Execution; *Imprisonment for Debt).

(6) A common clause allowing the claimant to render the document effective through the use of a non-Jewish court, and in some cases by personal force (see *Mishpat Ivri). The end of the shetar usually included the statement that it was not a mere form but an actual document, and concluded with the words, sharir ve-kayyam ("firm and established"). Any provisions added after this phrase (other than corrections) are of no effect.

A legal instrument may not be written on a material which is susceptible to forgery. In the event of a correction, a mark must be made next to the corrected word or clause, and a reference to it must be added at the foot of the document, which must be witnessed (Tur, ḤM 42; see *Forgery).

To enforce a claim based on a shetar, the claimant must submit the document to a court of at least three persons to establish the authenticity of the witnesses' signatures. This may be accomplished either by the witnesses themselves identifying their own signatures, or by others testifying that they are familiar with the signatures of the witnesses, or by a handwriting analysis. Once the signatures are authenticated, the court appends a validation certificate, henpek (or hanpek) or asharta, which precludes any future challenge to the validity of the document. This proceeding before the court may take place without the obligor being present and even over his objection. Such certification is referred to in the Talmud (BM 7b) and appears among the Elephantine documents of the fifth century B.C.E.

The language of a document does not affect its validity. Indeed, in addition to Aramaic or Hebrew, legal instruments were written in Persian, Arabic, Latin, Greek, English, Spanish, and all other languages used by Jews. Bills of divorce, however, were subject to special rules.

Shetarot Written before Gentile Courts

The general rule, as stated in the Mishnah, is that all legal instruments written by non-Jewish courts and witnessed by non-Jews are valid, except for bills of divorce and manumissions of slaves (Git. 1:5). Although there existed differences of interpretation and application between various rabbinic authorities on this point, it was generally agreed that, where there was a basis for holding that the non-Jewish court was not totally corrupt, credence would be given to legal instruments such as contracts, deeds, and bills of indebtedness. A distinction is made between documents which evidence a business transaction, or at least state consideration, and which under the rule of *dina de-malkhuta dina ("the law of the land is the law") required recognition, and deeds of gift which take on different legal incidents (Maim. Yad, Malveh ve-Loveh, 27:1). The medieval rabbis distinguished between deeds written in gentile courts and those written before notaries outside the court. Maimonides ruled the latter invalid, while Naḥmanides upheld their validity.

Types of Document

A review of the various types of documents assembled in Gulak's Oẓar ha-Shetarot is sufficient to indicate the wide scope of relationships covered by such documents. These may be divided into the following five categories:

(1) Family Documents:

These include *betrothal agreements, *marriage contracts (see *ketubbah), antenuptial agreements, releases between *husband and wife, *divorce documents, ḥaliẓah and yibbum, (see *Levirate Marriage), wills, deeds of trust (see *Shalish; *Consecration and Endowment) and guardianship (see *Apotropos), and support contracts. It is evident that these documents cover the entire range of family relationships and evidence a sophisticated legal development. One of the more interesting documents is the shetar shiddukhin (see *Betrothal), a contract between two sets of parents in which both parties undertake to betroth their children to each other, and promise to contribute whatever dowry is involved. The difference between this and a shetar erusin ("contract of betrothal") is that the latter document deals with promises made to and by the prospective couple, while the shetar shiddukhin involves promises exchanged by their parents or guardians. The get ("divorce") contains specific formulas which are dealt with elsewhere (see *Divorce).

(2) Business Documents:

These documents relate to economic relations between Jews and include bills of sale, gifts, leases, partnerships, Iska (see *Partnership), mortgages (see *Lien), bonds, receipts, *assignments, letters of *attorney, employment contracts (see *Labor Law), and escrow agreements. Each of these deeds had its own historical development. Thus, there exist many copies of partnership agreements in the Cairo Genizah which represent the frequent use of partnership, even on an international scale, during the period between the middle of the tenth to the middle of the 13th century.

(a) Shetar Ḥov, bond, bill of indebtedness. This is probably the most frequently used private legal document besides the ketubbah. In fact, when the term shetar is used without modification it refers to a shetar ḥov. It should be noted that a shetar ḥov may result from any type of credit or obligation transaction and need not be the result of a loan of money (see *Loans; *Obligations, Law of). A unique and important feature of the shetar ḥov (as well as of the ketubbah) is the fact that the shetar ḥov itself creates a lien on the debtor's real property, aḥarayut nekhasim or shi'bud nekhasim, which is an effective claim against that property even when it is sold to a third party. In other words, the shetar ḥov creates a mortgage on all the real property owned by the debtor on the date of the execution of the document. This provision was inserted into the ketubbah by Simeon b. Shetaḥ (Tosef., Ket. 12:1) in the first quarter of the second century B.C.E. The Talmud records a difference of opinion as to whether we do or do not imply the existence of such a lien when the phrase stating it is omitted. The final decision is that we attribute its omission to a scribal error, and assume the intention to create the lien. As a result of the creation of this lien, predated bonds are invalid because they prejudice the rights of other creditors, while postdated bonds are valid. During the geonic period the lien was extended by appropriate clauses in the document to movable property, and even to property to be acquired later than the time of the contract. The rabbinic courts, however, would not enforce the claim of a creditor against the movables sold by a defaulting debtor.

The Torah prohibits the taking of interest for a loan (Ex. 22:24; Lev. 25:36–38; Deut. 23:20–21), and indeed a document which states that interest is to be paid is invalid (see *Usury). The Elephantine documents do, however, contain penalty clauses which become operative if the debt is not repaid when due. Such a clause is prohibited by the majority of rabbinic opinion, but was widely used with approval in medieval England (during the 12th and 13th centuries), when a certain formal clause was included which stated that, on default of repayment, the loan was reloaned to the debtor via a gentile intermediary. This legal fiction permitted the acceptance of the interest. A shetar ḥov which does not state when the debt is due is repayable not earlier than 30 days from the date of the loan.

During the Second Temple period assignment of debts by the obligee was permitted. In fact the innovation of *prosbul was predicated on this assumption. In amoraic times, restrictions were placed on this right of assignment by permitting the assigner to forgive the debt after assignment (Kid. 48a). The Talmud also refers to bonds made out to the order of the holder. This type of document would be considered by modern standards as a bearer paper. The question as to whether or not an assignee could claim under such a document is left unresolved in the Talmud. In post-talmudic times, however, it was the custom to insert a phrase in the bond allowing the named creditor or his agent to claim on the bond. Subsequently, there developed a document which named no creditor, but merely evidenced indebtedness to holder mukaz (מוכ״ז; moẓi ketav zeh). In order to assign a debt from a named creditor to another, it was necessary to write a deed of transfer which, together with the original bond, had to be physically conveyed to the assignee. This procedure is called ketivah u-mesirah (see *Acquisition, Modes of). There is some question as to whether this would be effective as against the debtor. Another method employed was to write a letter of attorney, harsha'ah, which provided for the transfer of four ells of land together with the indebtedness. From the tenth century on these four ells were the ones theoretically owned by every Jew in Israel (see *Agency, Law of).

(b) Shetar Iska, a type of limited partnership agreement wherein the active partner borrows from a passive partner. Half the money is considered loan and half is investment in the business. This enables the active partner to pay a return to the passive partner, usually one third, without its being considered as usury. This type of agreement, which is referred to in the Talmud (BM 104b), was also called shetar kis and became very popular in the Middle Ages, when the Jews were very active in the moneylending business and would borrow additional loan capital from fellow Jews. Originally, the passive partner bore part of the risk of loss. Later amendments to the standard text of such a document included undertakings by the active partner which amounted to a guarantee to the passive partner against any loss (see Gulak, Oẓar, nos. 234 and 235). The shetar iska resembles the medieval Latin document known as commenda (see *Partnership; *Usury).

(c) Suftaja or Diokne, bills of exchange. This type of document was in use during the geonic period in the countries involved in the Mediterranean trade centering on Egypt. As a rule these documents were drawn on well-known banks in another city or country, which charged a fee for their issue. In this way they facilitated international trade and functioned very much like the modern bill of exchange or check. These documents did not conform to Jewish law, but were, nevertheless, enforceable in rabbinic courts, where the law merchant was applied to protect the businessmen who relied on these documents (A. Harkavy (ed.), Zikhron Kammah Ge'onim (1887), no. 232; see *Minhag).

(d) Mimram, also mimrane, a note of indebtedness which was widely used among Jews in eastern Europe between the 16th and 19th centuries. The form of the document consisted of the signature of the debtor on one side of the note, and on the reverse side, exactly opposite the signature, a statement as to the amount owed, the terms of payment (date due), and sometimes the place of payment (Siftei Kohen, ḤM 48). The origin of the term is not clear. It is probably derived from the Latin, membrana ("parchment"). Some suggest that it is a derivative from the document of remembrance referred to in the responsa of *Asher b. Jehiel (Rosh, resp. no. 68:3) and corresponds to the Latin, in memoriam. The significant innovation of this document is the omission of the name of the creditor, which results in its being completely negotiable without any further requirements. The Jewish community councils of Poland passed special regulations protecting the holder of such notes, and implying, as a matter of law, waiver of defenses which the defendant may interpose. In fact, the shetar mimram does not conform to halakhic principle; nevertheless, it was granted rabbinic sanction as a result of its wide use (Baḥ Yeshanot, resp. no. 351). During the trade fairs in Poland there also developed the practice of having these notes signed in blank. Afterward the sum and terms of payment would be completed. This obviously involved the element of trust on the part of the purchaser (debtor) and a close relationship between the merchants. The use of mimranot was so widespread in 17th- and 18th-century Poland that a very substantial trade existed in the discounting and sale of such documents.

(3) Court Documents

Each stage of the rabbinic judicial process was recorded, and appropriate legal documents were issued by the court. These included summons (hazmanah le-din), decision (pesak din), appraisal of the debtor's property (shuma), writ of execution against the property (shetar adrakhta), and writ of execution against transferred realty (shetar tirfa).

(4) Communal Documents

From the time of the destruction of the Second Temple to modern times the Jewish community was self-governed as to its internal affairs. Thus it had its own system of taxation and means of enforcing compliance in accordance with the decisions of the rabbinic court and community councils. The decree of *ḥerem ("excommunication") was its most powerful weapon. Other examples of community documents are ordination (*semikhah), letters of appointment of rabbis, community loan bonds, right of settlement, and ḥazakah.

(5) Miscellaneous Documents

There are many other documents extant which cannot be classified under any of the above categories. Some of these are of historical interest. Among them are deeds of manumission of *slaves and bills of sale for slaves. One interesting document recorded by Gulak (Oẓar no. 399) is an order for anyone who had a claim against the overlord of Vienna in 1387 to come forward with his claim within 30 days or be forever barred.

[Abraham M. Fuss]

Contemporary Research into Legal Documents 1975–2005

The period 1975–2005 witnessed increased interest in the study of legal documents, and more in-depth study of those documents previously noted.

Y. Muffs, Studies in Aramaic Legal Papyri from Elphantine, was reissued with a long Prolegomenon by Baruch Levine (Leiden 2003). The work of Bezalel Porton and Ada Yardeni, Textbook of Aramaic Documents from Ancient Egypt (1989), newly copied and translated have expanded the scope of the studies,

Legal documents from the Dead Sea-Qumran discoveries have been published and are the subject of a number of studies which provide insights into the business activities and social lives of people living in the first centuries of the common era. In this category are Hannah M. Cotton and Ada Yardeni, Aramaic, Hebrew, and Greek Documentary Texts from Nahal Hever and Other Sites (1997; Discoveries in the Judean desert, vol. 27), and Klaus Beyer, Die aramaischen Texte vom Toten Meer (Gutenberg 1984), which has a section dealing with private documents, including both formal and informal legal documents from the Dead Sea area, see pages 304–27.

Gulak's Das Urkundenwesen im Talmud, published in 1935, has been translated into Hebrew with supplemental notes by Ranon Katzoff, Legal Documents in the Talmud, In Light of Greek Papyri and Greek and Roman Law (Jerusalem 1994).

The first collection of rabbinic formularies is that of *Saadiah Gaon (b. 882). M. Ben Sasson published substantial fragments from Saadiah's Sefer ha-Edut ve ha-Shetarot in Shenaton ha-Mishpat ha-Ivri, vols. 11–12 (1984–85), pp. 135–278. This is also the best scholarly edition of the early formularies.

The study of the Cairo Genizah documents was greatly stimulated by the work of S.D. Goitein and his classic A Mediterranean Society. Volume 1, published in 1967, dealt with economic matters. The fifth volume, the last, was published in 1988 shortly after his death. Goitein describes legal instruments, such as partnership contracts and other documents used in business and court proceedings, which have not been published as of 2005. For the legal historian it is necessary to have access to the texts of the documents to determine the nuances in the wording of documents which allow us to learn what problems those nuances are intended to solve. An example of such study is J. Rivlin's Bills & Contracts From Lucena, (1020–1025) (Heb., Bar-Ilan University Press, 1994), which consists of 45 original documents emanating from the Cairo Genizah which come from southern Spain and were written in Hebrew; the work provides commentary and reference to specific emendations. See also Rivlin's Inheritance and Wills in Jewish Law (Heb.; Bar-Ilan University Press, 1999), pp. 307–411, on which appear the texts of wills and gifts in contemplation of death from the Cairo Genizah, and his article in HUCA (Hebrew Section), vol. 73, p. 79ff.

There are stills thousands of documents unpublished from the Genizah. The Cambridge Taylor-Schechter collection, which is the largest depository of Genizah documents, has commenced a program of digitizing documents and putting them on the Internet. Hopefully it will be possible to study the legal documents directly within a few years.

Various collections of medieval shetarot which were required to be registered in government archives are still extant. Some of these are now being published. Thus, Elka Klein, Hebrew Deeds of Catalan Jews11711316 (Barcelona-Girona 2004), is a welcome addition. The Hebrew documents are also translated into Spanish. Another work of this kind is Ignacio Ferrando, 23 Contratos Comerciales Escritos por Los Judios de Toledo en Los Siglos XIII Y XIV: Edicion Completa y Estudio Linguistico de los Datos Judeo-arabes y Andalusies (University of Zaragosa 1994). The previously published collections of shetarot are listed in M. Elon, Jewish Law: History, Sources, Principles, vol. 3, pp. 1529–40; in N. Rakover, Oẓar ha-Mishpat (Tel Aviv 1990) and in The Multi-Language Bibliography of Jewish Law (Jerusalem 1990), p. 701.

Examples of studies which deal with particular historical aspects of shetarot are Edward Fran, Ideals Face Reality, Jewish Law & Life in Poland 15501655 (Cincinnati 1997); A Fuss, Mishpat Avraham, (Heb., Jerusalem 2004).

[Abraham M. Fuss (2nd ed.)]

BIBLIOGRAPHY:

L. Auerbach, Das juedische Obligationenrecht (1870), 199–505; Ph. Bloch, in: Festschrift… A. Berliner (1903), 50–64; L. Fischer, in: JJLG, 9 (1911), 45–197; V. Aptowitzer, in: JQR, 4 (1913/14), 23–51; I.S. Zuri, Mishpat ha-Talmud, 5 (1921), 43–59; Gulak, Yesodei, passim; Gulak, Oẓar (incl. bibl.); idem, in: Etudes de papyrologie, 1 (1932), 97–104 (Ger.); idem, Das Urkundenwesen im Talmud… (1935); Hai Gaon, Sefer ha-Shetarot, ed. by S. Assaf, in: Musaf ha-Tarbiz, 1 (1930), 5–77; I. Abrahams (ed.), Starrs and Jewish Charters… 3 vols. (1930–32); Z. Karl, in: Ha-Mishpat ha-Ivri, 5 (1936/37), 105–87; Herzog, Instit, 2 (1939), 314 (index), S.V.; H. Albeck, in: Koveẓ Madda'i le-Zekher Moshe Schorr (1944), 12–24; ET, 1 (19513), 218–20; 5 (1953), 717–42; J.J. Rabinowitz, Jewish Law (1956), passim; C. Roth, in: Oxoniensia, 22 (1957), 63–77; N. Golb, in: Jewish Social Studies, 20 (1958), 17–46; R. Yaron, Introduction to the Law of the Aramaic Papyri (1961); E. Koffmahn, Die Doppelurkunden aus der Wueste Juda (1968); M. Elon, Mafte'aḥ ha-She'lot ve-ha-Teshuvot, She'lot u-Teshuvot ha-Rosh (1965), 341–75; A.M. Fuss, Dinei Yisrael (4) (1973); H. Soloveitchik, Tarbiz, 41 (1972), 313; E. Strauss-Astor, History of the Jews in Egypt and Syria, vol.3 (1970); S. Assaf, in: R.J.L. Fishman (ed.), Rav Saadya Gaon (1943), p. 65ff; Y.Baer, Die Juden Im Christlichen Spanien, vol.1 (1929), 1044; M.D. Davis, Hebrew Deeds of English Jews Before 1920 (1888, repr. 1969); ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:501f, 773f; 2:1221f., 1282–1316, and index; ibid, Jewish Law (1994), 2:610f., 951f.; 3:1463, 1530–72; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 2:502–21; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 340–45.


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