Q&A: Goats That Ate Husked Barley
Goats That Ate Husked Barley
Question
The later authorities (Acharonim) ask: how is the owner of the husked barley, who seized the goats, believed on the strength of a migo? After all, this is a migo used to extract, since he is not the current possessor (for he too admits that the goats are not his).
The question is unclear to me—being the current possessor is not evidence and does not clarify anything. It simply determines the procedural order of the case—who is the defendant and who is the plaintiff, and therefore on whom the burden of proof falls.
So since the owner of the husked barley is the one currently holding the goats, why should it matter that they are not his? Either way, the one making the claim in our case is the owner of the goats. So the migo of the owner of the husked barley is not a migo used to extract. It is the migo of a defendant, not of a plaintiff.
Answer
The case of the husked barley is more complicated than you describe. If he too admits that they are not his, then no migo will help him. But he did not seize them with the claim that they were his; rather, he seized them as payment for a debt that he claims is owed to him. The money—not the goats—is his, according to his claim. And regarding that, they ask that with respect to the goats themselves, he is in fact the one extracting, not the one in possession.
Beyond that, being the current possessor is not only a clarification of procedural order. Otherwise, the very rule that we do not invoke a migo to extract would be hard to understand. If that were the whole idea, then as soon as there were evidence of any weight at all, that should be enough to extract from the one in possession. The same applies to following the majority in monetary matters, which does not help in Jewish law. From here we see that Jewish law views possession as a consideration with evidentiary weight, not merely as a way of deciding who bears the burden of proof. Therefore, to extract, one needs evidence of at least some minimal weight—more than a migo or a majority. In principle, one needs two witnesses or comparably strong evidence.
However, in the case of the goats there is only the aspect of possession, without the evidentiary aspect, since goats are movable and possession of them carries no evidentiary weight. Here there really is only possession in its formal sense. And therefore here, on logical grounds, a migo really should have been effective.
Those later authorities apparently assume that just as in ordinary possession, so too with the goats, possession carries weight and is not merely a default principle. And in fact, if you think about it, even in ordinary possession—not in the case of goats—there is no real evidence in favor of the possessor. The presumption that what is under a person’s control is his does not apply here (see, for example, column 637). And if one views such a presumption as evidence on the halakhic plane—even though probabilistically it is not evidence—those later authorities can argue that even “thin” possession, as in the case of the goats, should be considered to have evidentiary weight, and therefore it would be a migo used to extract.
But as for the substance of the matter, your claim certainly has room to stand, at least as an answer to their difficulty.