A document could serve two purposes. Number one, it could record testimony that a transaction happened between two people, or it could actually affect the transaction itself. A bill of divorce, for example: the handing over of the document is what causes the divorce. Because there are such deep consequences when these types of documents are prepared, they can be prepared only with the consent of one or two of the people or parties involved. In the next two Mishnayot, we’ll talk about these different documents, who needs to give consent to prepare them, and who has to pay to have them prepared.
The Mishnah says you’re allowed to write a divorce document, a get (bill of divorce), for a man to give to his wife, even if his wife is not with him. The sofer (scribe) writing the get, and having witnesses sign on it to show that it’s valid, has to have only the husband there. He can complete the divorce without his wife and then use it on her. The reason is that on a de’oraita biblical level, a man is allowed to divorce his wife against her will. Her involvement is not needed to decide whether she wants to get divorced or not. So we don’t look for her consent whatsoever.
The shover la'isha, a receipt that a woman prepares stating that she got paid her ketubah (marriage contract), is handed over to her husband once it’s paid off. This document is called a shover. A woman is allowed to prepare it on her own, even if her husband is not with her. The document simply states that the woman no longer has a claim to her ketubah. She is writing that, so she has to give consent. She has a sofer write it, and she has to give consent for that. When she’s paid, she hands it over to her husband. The husband doesn’t have to consent to it because it doesn’t do anything bad for him. It’s only beneficial for him to have this document written, which he’ll receive when he pays the ketubah.
It’s her responsibility to guard that document, because if the husband gets his hands on it without having paid her, then he would not have to pay her, since he has proof that he paid her. That would be illegal and against the halakha (Jewish law), but he would be violating the moral code of what he has to do. He really owes her the money klapei Shmaya, in the eyes of the shamayim (heaven). Legally, though, he could claim that he paid her already by having that shover in his hands. But she has to consent to it. Both of these documents also come with another condition: “u'vilvad sheyehu makirin, makirin.” All of this is possible only if both the sofer and the edim (witnesses) are familiar with both parties involved, the husband and the wife.
The husband could have a get written in advance, with the sofer and the witnesses, the edim, writing it without his wife present, only if they know his name and his wife’s name. The reason is that we’re concerned a man would have a get written to hand off to another woman, with fraudulent names in it. For example, let’s say Reuven approaches the Bet Din (rabbinical court), and they don’t know who he is. He tells them, “Please write a get for Shimon to divorce Leah.” They think he’s Shimon and that his wife is Leah. But in reality, he takes this get and hands it to another woman named Leah, and she uses it against her husband, Shimon, claiming that she was divorced. In reality, it’s a fraudulent claim: her husband never gave her the bill of divorce, and she’s using this bill to claim that he did divorce her.
Therefore, all of this is possible only if the sofer and the witnesses recognize and know both parties involved and know that they’re married. The same applies to the ketubah: the shover, a receipt stating that a ketubah payment was made, can be written by a sofer without the husband present only if he knows the woman’s name and her husband’s name. Otherwise, we’re concerned that she’s going to give it to another man. That other man is going to say, “Look, I paid my wife’s ketubah,” and it’s going to have his wife’s name on it. The information will be wrong. So all of this is allowed only if the sofer knows both parties’ names; otherwise, they wouldn’t be allowed to do it.
The husband has to pay the sofer for writing both the get and the receipt, the shover. He has to pay for the writing of the get because he’s opting to divorce his wife. He also has to pay for the receipt because it’s written for his benefit, to show that he already paid the ketubah, so his wife can pay for it. His wife is not going to try and collect it more than once.
Now we’ll talk about loan documents. The Mishnah continues: you’re allowed to write a loan document for the borrower even if the lender is not with him. The document says that the borrower owes money to the lender. It has the potential to cause a loss only to the borrower, so you have to have his consent, and it can be written even if the lender is not around. This type of document would be written by the borrower. Because he’s doing this before the whole loan is made, before everything is settled, the borrower would walk over to the lender with his document, with everything prepared, and try to arrange to borrow money. He would hand the document over to the lender as proof.
But you’re not allowed to prepare a loan document for the lender unless the borrower is with him, because the lender may not have followed through with lending the money to the borrower. He could use this document to claim he lent out money when, in reality, he never did. So you have to have the borrower’s consent, because the borrower is the one who needs to confirm that he actually borrowed the money. The borrower is the one who has to pay for this loan document. The loan document is written for his benefit, to make sure that he has the ability to obtain the loan. So he has to be the one who pays for it, even though in reality the lender is the one who’s going to use it at the end of the day to get repaid his loan. But the main benefit here is for the borrower, because he would never have had the ability to borrow money without this type of document.
The last type of document the Mishnah is going to talk about is a bill of sale. You’re allowed to write a sale document for the seller even though the buyer is not with him. The seller is the one who would lose if this document were taken by somebody else, so he wants to write it. He’s allowed to do that because he’s going to lose if it’s sold to somebody else. He can have the bill of sale prepared before the sale is made, to hand over to the buyer, and it’s his job to make sure that the buyer doesn’t take this bill of sale before the money is transferred.
And he’s not allowed to write a sale document for the buyer unless the seller is with him. If it’s written for him, the buyer could take this type of document and claim that he bought property that he never actually bought. The buyer is the one who pays the seller for the bill of sale. He’s considered to be the one who benefits more from the sale. He’s the one who wants the item very badly, and therefore he is the one who has to be willing to pay for the seller.