Question:

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?

Answer:

1. 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.

2. 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.
3. 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 handwriting.
4. 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)

Sources:

(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.

Feedback is appreciated! It can be sent to[email protected].

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 and approval.

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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!