By the Bais Hora'ah
Last week, we discussed the halachah of a witness’s signature on a kesubah who omitted HaKohen after his name. The two witnesses were called back after the chuppah to sign a new kesubah so that the witness could include HaKohen. We noted that the new kesubah may be invalid.
Q: Is there an issue for witnesses to sign a second kesubah?
A: It is clear that one should not make decisions regarding such weighty matters without consulting with a Rav who is an expert in these matters. This situation perfectly illustrates this, since one who is not experienced or knowledgeable may not realize that there is an issue in replacing the original kesubah.
Witnesses may not sign an obligatory document unless they were instructed to do so by the party who will become obligated. In our case, this means that the husband must instruct the witnesses to sign the kesubah since it contains the husband’s financial obligations toward his wife. The kinyan made with the groom empowers the witnesses as agents to draft a kesubah. Once witnesses sign and deliver a valid kesubah, their agency is completed and they may no longer act on behalf of the husband.
A replacement document may be signed only if the original document was invalid. For example, if they made an invalidating error in a loan document, they must destroy the invalid loan document and a replacement may be signed by the witnesses. Since the original document was invalid, the witnesses have not yet fulfilled their agency and thus remain empowered to sign a loan document. On the other hand, if the original document was valid and delivered to the lender, their agency was completed and they are not empowered to sign a replacement (C.M. 49:6). [For a discussion whether a valid document may be replaced if already signed but not yet delivered, see Nesivos 49:3 and 4.]
Poskim debate whether a document may be replaced if its validity is questionable (safek pasul). Some maintain that since it is possible that the document is valid the witnesses have fulfilled their agency. Even though the document may not be usable for collection, nevertheless, the witnesses may not sign a replacement document (Shach 49:6). Others contend that if the document cannot be used for collection, regardless of whether that is due to the document being definitely invalid or even possibly invalid, they have not fulfilled their agency and may sign a replacement document (Ketzos 49:3).
In our case, where one of the witnesses omitted HaKohen from his name, the witnesses certainly fulfilled their agency and are not authorized to replace the original kesubah unless they receive permission from the chassan to do so. If he grants permission, a new agency begins and they may sign another kesubah.
If witnesses signed another kesubah without authorization but secured authorization before it was given to the kallah, there are authorities who maintain that the kesubah is valid since the task is not completed until the kesubah is delivered to her. Therefore, as long as they received authorization before that point, the kesubah is valid (Nesivos 39:13). L’chat’chilah, however, they should not even sign a replacement kesubah without first receiving authorization to do so from the chassan since there are authorities who maintain that they need permission to even sign the kesubah (Imrei Baruch, Yeshuos Yisrael 16 and Miktzoa BaTorah 34). [Although one could contend that a kesubah is different from other documents and it can be assumed (umdana) that the chassan agrees to whatever the mesader kiddushin thinks is necessary, nevertheless, it is difficult to rely on that rationale l’chat’chilah (see Yeshuos Yisrael 41:2).]