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Authentication of Documents (Ḳiyyum, Asharta, Henpek)

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Methods of Authentication.

An official certificate of genuineness. This is either the result of actual litigation on the subject, in which case the decision of the court is the official authentication, or where the proper persons appear before a competent tribunal, which takes their testimony and officially authenticates the instrument for the purpose of preventing litigation concerning it. The use of authentication is well known in Talmudic law. Strict law does not require the authentication of an instrument in order to give it validity, because, according to Resh Laḳish, the attestation of subscribing witnesses is equivalent to the testimony of those who have been examined in court (Giṭ. 3a). The reason for this rule is obvious: there may be danger of fraud and forgery in the case of an instrument signed by the debtor, but such danger is far removed in the case of an instrument which is signed by two disinterested witnesses. An instrument is considered judicially authenticated (1) if the judges themselves recognize the handwritings of the subscribing witnesses; or (2) if the witnesses sign in the presence of the court; or (3) if the subscribing witnesses appear before the court and acknowledge their signatures, stating that they witnessed the transaction; or (4) if other witnesses appear and testify that they recognize the handwriting of the subscribing witnesses; or (5) if the court, after comparison of the signatures in issue with the signatures in at least two other instruments, reaches the conclusion that the signatures are genuine.

In the latter case, the instruments with which the comparison is to be made must be at least three years old (this being the period in which prescriptive rights to real estate may be obtained), and must be instruments of conveyance of real estate in the hands of the persons in open and undisputed possession of such estate. If the instruments with which the comparison is to be made are in the possession of the person who is interested in having the signatures authenticated, they can not be used for such purposes. Some authorities are of the opinion that a comparison with the signatures in a letter or with the handwriting of the author of a book in manuscript is not permitted (Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 46, 7, gloss).

Frankel ("Der Gerichtliche Beweis," p. 415) reduces these five cases to three fundamental principles:

(1) Acknowledgment by subscribing witnesses; (2) the testimony of third persons who know the signatures of the subscribing witnesses; and (3) comparison of handwritings.

As to the acknowledgment of their signatures by the subscribing witnesses, the Mishnah provides (Ket. 2:4) that if one witness says, "This is my signature, and the other signature is in the handwriting of my associate, the second witness," and the other witness testifies in the same manner, their testimony is sufficient for authentication. If the one says, "This is my signature," and the other likewise says, "This is my signature," a third person must be called who recognizes both signatures, in order that there may be two witnesses for each signature. This is the decision of Rabbi Judah; but the Sages say that a third person need not be called in, because it is sufficient if each one proves his own handwriting.

The point raised here touches the very essence of attestation of documents. According to Rabbi Judah, the witnesses admitting their own handwriting are testifying merely to that fact, and not to the substance of the document; whereas, according to the Sages, the testimony of each of the witnesses acknowledging his own handwriting is to the substance of the document; hence, according to the latter, there are in fact two witnesses attesting the fact in issue; namely, the substance of the document. Therefore, it is unnecessary to call in a third person who is familiar with their signatures.

Proof of Handwriting.

Proof of the handwriting of the witnesses is alluded to in the Mishnah above cited and in the Baraita (Ket. 19b). In this case, each of the signatures must be proved by two witnesses, because the testimony is not as to the substance of the instrument, but as to the genuineness of the signature. If one of the subscribing witnesses admits his signature, and he and a third person prove the signature of the other subscribing witness, this is not sufficient, because thereby the instrument is proved for the greater part by one witness; to wit, the subscribing witness, who admits his own signature and proves the signature of the other. The Talmudic law requires that in every case the testimony of the witnesses, in order to establish a fact, must go to the entire matter; and a fact is not proved if the testimony of one of the witnesses proves more than that of the other (see Ket. 21a; B. B. 57a).

On the question of comparison of handwritings for the purpose of proving the signatures, the rule seems to be that the comparison may be made with two other instruments, as above stated; but comparison may also be made with an instrument the validity of which has been attacked and which has been judicially declared genuine (Ket. 19b), and such a judicially authenticated instrument is for this purpose as good as two ordinary instruments (Ḥoshen Mishpaṭ, c.).

Examples of Formulas.

In authenticating the document, it is customary to mention the mode of authentication (ib.). The Shulḥan 'Aruk simply prescribes that, if the court merely writes, "In the presence of us three sitting together, this instrument was authenticated," this is sufficient, although they do not state in what manner it was authenticated. The following formulas are customarily used:

1. When the subscribing witnesses themselves admit their signatures:We three sat together in court and considered the aforesaid document to which there are subscribed two witnesses: A, the son of B, and C, the son of D. These two witnesses came before us and acknowledged their signatures, and admitted that they were their own handwritings. Therefore, we, as is proper, have found them to be genuine and authentic. (Here follow the date and the signatures of the three judges.)
2. When other witnesses testify to the signatures of the subscribing witnesses:We three sat together in court and considered the aforesaid document to which there are subscribed two witnesses: A, the son of B, and C, the son of D; and there came before us two other witnesses: E, the son of F, and G, the son of H; and they testified before us concerning the signatures of the aforesaid witnesses who have subscribed these documents, and they made clear to us that the said signatures are in the handwritings of the said witnesses. Therefore, we, as is proper, have found them to be genuine and authentic. (Here follow the date and the signatures of the three judges.)

The formula in each case is varied to suit the nature of the proof brought before the court. A list of such formulas may be found in Naḥalat Shib'ah,; see also "Seder Tiḳḳune Sheṭarot," by J. G. C. Adler, Hamburg, 1773.

Two Judges Must Sign.

As a rule, the signatures of the three judges are required; but it is sufficient if the authentication is signed by two of them (Ḥoshen Mishpaṭ, 46, 29). The tribunal authenticating the document need not necessarily be learned in the law, nor is it necessary that the debtor or the person to be charged by this document be present; indeed, the authentication may take place even if the debtor declares the instrument a forgery (ib. 5). The authentication is simply a judicial affirmation of the correctness of the signature of the subscribing witness, and the truth of the facts set forth in the document is not directly in issue (Ket. 109b, top; Ḥoshen Mishpaṭ, c. 20).

In order that there might be no danger of the authentication being used for some other instrument, the rule was adopted that no space must be left between the document and the authentication, but that the latter must be written immediately under the signature of the witnesses, or on the back of the instrument immediately behind the writing (B. B. 163a; Ḥoshen Mishpaṭ, 46, 31). If, however, thespace between the signatures of the witnesses and the authentication is filled up by lines and dots, it is sufficient (ib. 32 et seq.). Maimonides ("Yad," Malweh, 27:6) and Caro (Ḥoshen Mishpaṭ, c.) seem to have been of the opinion that the authentication could be written alongside of the document.

Although an authenticated document was in the nature of a public record, and had all the faith and credit given to it as such, nevertheless the question of its genuineness could be raised. If any such question arose, it was sufficient for two of the subscribing judges to acknowledge their signatures to the authentication. Other rules concerning the proof of authenticated instruments, when the same are attested, are stated by the Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 46, 14-16, 37, 38.