The Validity of a Contract When Not All Clauses Were Read in Advance

It is common for people to sign an agreement containing many pages and clauses, and later one of the parties notices that one or some of the clauses, to which they did not pay attention at the time of signing, differs from what was agreed orally, or was not discussed at all. The question then arises: is what was signed in the agreement binding, or what was previously agreed orally?

One who signs is obligated even if he did not read and understand

The Rashba (Responsa attributed to the Ramban, 77) cites a question regarding an admission bearing a person’s signature, where the document itself is written in the script of non-Jews: since he does not know how to read, perhaps his signature is ineffective; or perhaps that rule applies only to witnesses, for if they do not understand it is not called testimony, whereas in the case of a party’s admission, he has admitted to everything that is written.

The Rashba concludes that anyone who signs, even if he does not know how to read, is presumed to have had everything written in it read to him before he signed. He adds that even if he admits that he does not understand, or even if there are witnesses that he did not read before signing, nevertheless he becomes obligated in everything written in it, since he was not concerned to read it and relied on the scribe. For anyone who relies on the trustworthiness of others conclusively resolves to obligate himself in everything that the person whom he trusted will say. This is the rationale of a third-party holder. Even more than this they said (Gittin 64a): if a husband gave a get to a third party, and the husband says it was for safekeeping, while the third party says it was for divorce, the law is that the third party is believed. Since at the time he entrusted the get to the third party, he knew that the third party could give it to the woman; therefore he wrote it for her sake and gave it for divorce in the manner that the depositary would say it was for divorce. All the more so in the case of one who signs and relies on others: even though he does not know what is written there, and did not read it but signed, his intention is that he conclusively resolves to obligate himself in everything written in it, and he is thereby obligated.

It is clear from this that even where it is clear and known that the signer does not know how to read what is written, and also where he understands the language but it is clear that he did not read it, since he relies on the trustworthiness of the one who wrote the document — for otherwise he would not have signed — the law is that he is obligated in everything written in the document. This responsum is also cited in brief in his responsum (vol. 1, no. 985).

This is ruled as halachah in the Shulchan Aruch (Choshen Mishpat 45:3): an admission bearing his own signature, where the document is written in the script of non-Jews, and it is clear that he does not know how to read, and there are witnesses that he signed before it was read to him — nevertheless he is obligated in everything written in it. The Shach (s.k. 5) explains that since he did not read it and relied on the scribe, anyone who relies on the trustworthiness of others conclusively resolves to obligate himself in everything that will be said. The Netivot (Chiddushim, s.k. 5) likewise writes that since he signed himself before reading it, he resolved in his heart to obligate himself, as in the case of a third-party holder.

So too it is ruled (no. 68:2): a document drawn up before idolaters, and the borrower himself is signed on it, even though he does not know how to read, he is obligated in everything written in it, for he conclusively resolved to obligate himself, and therefore signed himself; and certainly it was read before him, and he trusted that reader.

A groom who did not understand the obligation of the ketubah

The Rashba, in his responsum (vol. 1, no. 629), discusses an unlearned person who came to divorce his wife, and the court told him to pay her ketubah. He said that he did not understand when they read the ketubah. They asked Rabbi Meir, and he answered that he is listened to, he is believed, and he is not obligated. But the Rashba maintains that he is not listened to, for there is a presumption that the witnesses testified orally and signed on his instruction; for if we do not say this, you have left no obligation for the unlearned or for women, since they would all claim this, and that is astonishing. The Rashba concludes: what can I do, since an elder, one who sits in the yeshivah, a wise man and a man of gray hair, has already ruled.

The Beit Yosef (Even HaEzer, no. 66), after citing the responsum of the Rashba who disagreed with Rabbeinu Meir, wrote: “I do not know why he hid among the vessels because he saw a great man, since he did not see a refutation.” As a matter of practical halachah he rules like the Rashba, that one’s signature obligates him even if he did not read and understand; for otherwise “you have not left life,” since all unlearned people will say this.

In truth, when one examines the Rashba’s responsum, it appears that Rabbi Meir’s admission that one may claim he did not understand what he obligated himself to applies when the ketubah was read, but not when he signed. In that case he would agree with the Rashba that he is obligated and cannot claim that he did not understand. This is stated explicitly in Knesset HaGedolah (glosses to Beit Yosef, no. 66, se’if 33): Rabbi Meir’s view applies only to a ketubah, where the witnesses are the ones obligating him; but when he himself signs with his signature, there is a presumption that a person does not sign until he knows what is written there, and if he signs, it is with the intention to obligate himself in everything written.

So it is ruled in the Shulchan Aruch (Choshen Mishpat 61:13): one who claimed regarding his wife’s ketubah that he was an unlearned person and did not understand when the chazzan read the ketubah and the conditions, is not listened to. The Sma (s.k. 23) explains that he should have said at the outset that he did not understand and requested that it be explained to him. Any silence in this matter is considered acceptance to uphold what scribes customarily write in documents and ketubot, including their details.

So too the Rema ruled (Even HaEzer 66:13): therefore, an unlearned person who came to divorce and later said that he did not understand what was written in the conditions or in the ketubah is not believed, for certainly the witnesses did not sign something to which they had not first testified before him orally. The Chelkat Mechokek (s.k. 48) explains that since one who does not know how to read is disqualified, they certainly did not sign until they first read it before the groom and told him. The Beit Shmuel (s.k. 29) explains similarly. [There are several other places in the Shulchan Aruch, but we will not cite them due to limited space.]
 

The Divrei Geonim cites that in a deed of acquisition, if he did not know what he signed, he is not obligated

The Divrei Geonim (klal 102, no. 20) cites the Mahariaz Enzil (no. 49), who distinguishes that this applies specifically to loan documents and documents of obligation, where a person can obligate himself even in something he was not previously obligated in; but in deeds of acquisition, such as sale or gift, the claim that he did not know is a valid claim, because the intent of the transferor is required. He further distinguishes that even in documents of obligation, this works only when the scribe wrote it, since the scribe has the status of a third-party holder, and the signer relied on his professionalism and conclusively resolved to obligate himself in everything he would write. But if the lender brought a written document and it was not read before him, and he merely believed the lender, he did not intend to obligate himself in everything written, since the lender is the litigant.

A responsum of the Chatam Sofer concerning a dispute between a rabbi and a community regarding for how long they undertook to pay the rabbi

The Chatam Sofer, in a responsum (Choshen Mishpat, no. 5), cites a case concerning a community that signed for a rabbi that they undertook to pay him twenty gold coins every week for as long as he was in their community. The community claimed that they had undertaken this only for three years, while in the document written by the rabbi in his own handwriting it stated that they had undertaken it forever; this was done without their knowledge, and they signed themselves without reading its contents. He cites there the above responsum of the Rashba, and adds that those who signed relied on the rabbi and agreed to everything he wrote, for there is a presumption that a person does not sign before reading and knowing. Furthermore, there is a presumption that the rabbi would not be so brazen as to falsify, in an assembly of the community and congregation, by writing what was not said in a matter that would eventually be revealed; and this is a strong presumption. See there his lengthy discussion. He ruled in favor of the rabbi, that the obligation was forever as written in the document, and rejected the community’s claim.

It emerges from the rulings of the Shulchan Aruch and the poskim that a signature is binding even where it is clear that he did not understand and does not know how to read the agreement

From all that was written above, it appears clear that if one signed a contract and could have asked for it to be explained to him, but did not do so, the law is that he is considered to have accepted upon himself everything written in it. All the more so if they went to a lawyer and paid him to draft an agreement, they certainly rely on him and will not be able to claim that they did not understand what the lawyer prepared in the agreement.

Where something different was agreed from what was written in the contract.

In Mikzoa BaTorah (no. 45, s.k. 3), after citing the responsum of the Rashba, he writes that according to this, further analysis is required: if the litigant admits that the other party did not obligate himself to him to the extent written in the document, should we say that he is nevertheless obligated? For although we have found that a third-party holder is believed, and Tosafot (Gittin 64a, s.v. Shalish) wrote that this applies even if he is lying, nevertheless it is wholly unreasonable that he should be obligated more than he obligated himself. He cites the ruling of the Shulchan Aruch (Even HaEzer 66:13) regarding an unlearned person who came to divorce and said that he did not understand what was written in the conditions; there they say that presumably it was read before him, and they do not give the reason that he relied on them. Perhaps there he claimed that they misled him and wrote more than what had been stipulated orally. He leaves the matter requiring further analysis.

The Yeshuot Yisrael (no. 45, Ein Mishpat, s.k. 3) cites the responsum of the Rashba at length and discusses his words extensively. In the course of his discussion he writes that when one signed in his own handwriting, he is not believed to say that the scribe misled him and wrote what he had not instructed; but if the other party admits that he did not instruct this, or if he brings witnesses, it is effective. It is clear from his words that he maintains that even if a contract was signed with certain conditions, if the parties admit that something different was agreed, the law is that what they agreed is binding, even though something different is written in the agreement between them.

It is common that people sign an agreement in which there was a clause that was not discussed [this happens when one copies from another agreement and forgets to change some clause]. In such a case it is clear that he has no credibility regarding this, and the contract, with the relevant clause concerning which they had agreed otherwise between themselves, is not determinative; the agreement is what is binding, not the contract.

Where an unusual clause or demand that was not agreed upon was inserted.

However, it is obvious that if there are clauses in the contract that are entirely unrelated to the subject of the transaction, or matters that people do not customarily write in ordinary contracts, and they can be defined as a mistake, and the signer merely relied on the trustworthiness of the person who wrote the agreement, in such a case it is clear that the signer did not give his trust for this, and did not intend to obligate himself in unreasonable matters. His signature is not binding even according to the Rashba’s view. Of course, this is if it will be proven that there is no possibility whatsoever for such a clause to be written; for if there are those who do write it, it will be difficult to make this claim.

The law regarding a mistake in an agreement

We will cite some of the main points of the law, but it should be known that every matter must be examined on its own merits, and one should consult.

One who entered into a contract, and there was a mistake in the agreement, and it may be assumed that but for the mistake he would not have entered into the contract, and the other party knew or should have known, is entitled to cancel the contract. However, a mistake is not grounds to cancel the contract if the contract can be performed by correcting the mistake, and the other party notified, before the contract was canceled, that he is prepared to do so. But if a clerical error or similar mistake occurred in the contract, the contract shall be corrected according to the estimated intention of the parties, and the mistake is not grounds to cancel the contract. If the contract can be divided into parts and the ground for cancellation relates only to one of its parts, only that part may be canceled; however, if it may be assumed that the party entitled to cancel would not have entered into the contract but for the ground, he may cancel that part or the entire contract.

Practical recommendation

Before any signing of a contract, agreement, or any other document, one must know that even if one does not understand, or does not read all the clauses, this obligates him in everything written. The exception is if it will be possible to prove regarding a clause that it was not discussed and that people do not ordinarily agree in that manner, or that something else was agreed. This would be after litigation in a beit din, arbitration, or any other forum the parties decide upon, to determine whether it was a mistake or was written intentionally. Such a dispute can entail high costs and much distress. Therefore, before signing contracts and agreements of any kind, it is recommended to examine the agreement carefully and consult an expert dayan who understands these matters, so as not to become one of those who cry out after the fact.

“Torat HaMishpat”