A.If a person has signed a contract with a client or business partner but
has not undergone a formal Kinyan (Halachic acquisition) with them, does
his signature Halachically bind him to the agreement as it does legally?
What if there are witnesses that testify that the person who signed the
document was not cognizant of what he or she was doing?
A. The signature of a person on a contract or on any other document
involved in any form of transaction between two or more parties is
considered be an absolutely valid Halachic Kinyan. A person who has
signed such a document may not back out of the agreement that he has
signed without the express permission of the other party involved.
B. The signature of a person on a document constitutes agreement to all
terms mentioned in the document, even if witnesses testify that the
signer did not read or understand all of the terms mentioned therein.
Therefore, before signing any document a person should carefully examine
everything mentioned in it, or ask someone whom he trusts to explain to
him what exactly it is that he is signing to.
C. If a person has signed on the bottom of a document, it makes no
difference whether he wrote the text of the agreement or someone else
did. However, if his signature appears at the top of the document, it is
only binding if the remainder of the document is written in his own
D. If someone did not sign a document, but merely wrote in his own
handwriting "I owe Reuven $100", this is still binding, even if his name
does not appear in the document at all. Therefore, a person can file a
claim against a business partner based on written statements such as
"I owe the business partnership $100", or "I owe my partner $100."
However, if the writer claims that he had no intention of obligating
himself to pay without formally signing it, we go after what accepted
practice is in each individual situation. For example, in the situation
of business partners, we would usually not accept his claim, since
partners generally make binding agreements without formalizing them with
signatures. If he can prove that they always require signatures, then a
Bais Din would accept such a claim. In other situations, he would usually
be believed, since most agreements between non-partners are formalized
with signatures. (1)
(1) The Halachos discussed in Answers A, C, and D are stated explicitly
in the Shulchan Oruch (Choshen Mishpat 69:1), in the Shach there (4),
and in the Nesivos in Biurim (2).
Answer B is discussed in the Teshuvos HaRashba (Siman 77). The following
is a summary of what is stated there:
The Teshuvos HaRashba writes: If a person claims that when he signed he
did not know what he was signing, he is not believed for two reasons.
A - It is highly improbable that an intelligent person would sign a
document without knowing what he was signing.
B - Even if witnesses would testify that the document was written in a
language that the signer does not understand and no one explained to
him the details of the document, his signature would still be binding.
Anyone who trusts another person, as this fellow did when he signed,
decides to obligate himself to whatever it is that he is signing to,
even including the details that he is presently not familiar with.
A signature creates a Kinyan Shtar, a contractual acquisition and
obligation, from which neither party can back out, as is stated in the
Shulchan Oruch (Choshen Mishpat 69:1).
Additionally, the Shulchan Oruch (Choshen Mishpat 201:1) tells us that
any act of acquisition that is commonly used by merchants and business
men in that society is Halachically effective (Kinyan Situmta). For
example, if a merchant is selling a barrel of oil to a customer, and it
is customary to mark it "sold" after the sale is completed, once he has
done so, the sale is Halachically effective even though a technical
Kinyan has not occurred. Therefore, even if the signer would argue that
because of a technicality his signature does not qualify as a Kinyan
Shtar, it would still be considered Kinyan on everything stated therein
since in our society this is how transactions are formalized.
It is important to note that although the Teshuvos HaRashba states that a
signature is binding even if the person signing was not familiar with the
language of the document and thus did not know the terms of what he was
signing and relied on the information provided by others, etc., this is
only regarding terms in the contract that are reasonable and relevant to
the transaction. When the terms are reasonable and relevant, even though
the terms seem favorable to one of the parties, the other party can not
argue that he was unaware of what he was signing and is not bound by it.
However, if there are clauses added to the document that are not related
to the actual transaction, or are not customarily included in documents
of this sort in that society, and the signer relied on the assurances of
someone else that the terms were favorable to him and he should sign, if
it can be proven to the Bais Din that he actually had no idea that he was
signing to these terms, he is not bound by them. Even though we say that
he decided to trust the information provided to him by the translator and
is bound by it even though he may not have fully understood it, this is
only if the terms are reasonable and are accepted practice in that society.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
We hope you find this class informative and stimulating! If you do not see a subscription form to the left
of the screen, access the Advanced Learning Network to
subscribe to Business-Halacha.
For information on subscriptions, archives, and other Project Genesis
classes, send mail to firstname.lastname@example.org for an automated reply. For
subscription assistance, send mail to email@example.com.
Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!