Ketubot, Chapter 2, Lesson 7
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- The division of the explanations: an upgraded migo versus an additional mechanism
- Where “the mouth that prohibited” applies according to Rashi and Tosafot, and in matters of prohibition
- The Mahaneh Ephraim: is the reason migo or “not because of migo”
- “This is migo and this is migo” in the passage and Rabbi Yehoshua
- Immediate speech versus after the speaking interval, a plausible explanation, and retroactive migo
- When witnesses arrive: the Mishnah, the Shitah Mekubetzet, and the connection to the foundation of the principle’s force
- Admitting that one wrote the document, “paid” with a migo of “forged,” and Rabbi David Povidarsky’s resolution
Summary
General Overview
Fourteen explanations were given for the basis of the force of the mouth that prohibited, with the first two presenting it as an upgraded migo, and the last two presenting an additional mechanism that is not part of the migo family. Two formulations were suggested for that same “new mechanism”: if you accept what a person says, you accept it in full and not halfway; and you do not use something that he himself gave as legal force against him in order to create possession-strength for the other side. The lecture sharpens that the central question is not where we find the mouth that prohibited, but what the basis of its force is when it applies, and it connects that inquiry to the words of the Mahaneh Ephraim, to the dispute over whether the credibility of the mouth that prohibited depends on immediate speech, and to the implications when witnesses arrive later and in the law of one who admits that he wrote the document.
The division of the explanations: an upgraded migo versus an additional mechanism
A gap was presented between explanations that understand the mouth that prohibited as a stronger migo, and explanations that establish within it a mechanism that is not migo. Two expressions were suggested for that added mechanism: accepting the person’s words “completely” and not halfway, and the prohibition against using something given by him as a kind of “lever of opposing force” to create possession-strength for the other side. It was clarified that defining the places where the mouth that prohibited applies depends on the way Rashi and Tosafot frame it, but once we arrive at a place that is the mouth that prohibited, the question is why its force is so strong: is it only an upgraded migo, or is something else added to it.
Where “the mouth that prohibited” applies according to Rashi and Tosafot, and in matters of prohibition
It was said that the definition of a place of the mouth that prohibited is situations in which, according to Rashi, one cannot make a claim unless the defendant speaks, and according to Tosafot the defendant can “pull the ground out from under the claim,” and in that sense it was formulated as a migo that he could have remained silent according to Rashi, and a migo that he could have denied it altogether according to Tosafot. It was argued that in matters of prohibition Rashi and Tosafot “converge,” because there is no outside claimant and the court is the claimant, in quotation marks, so the distinction between whether the focus is on the claimant or on the court does not create a practical dispute. The case of the woman who says, “I was a married woman and I am divorced,” was brought as a situation in which, without her statement, there would have been no need for any defense, and it was explained that this strengthens the convergence between the models in the context of prohibitions.
The Mahaneh Ephraim: is the reason migo or “not because of migo”
The Mahaneh Ephraim, in the laws of forbidden relations, asks “for what reason is” the rule “in every place, the mouth that prohibited is the mouth that permitted,” and presents two possibilities: either because of migo and the presumption that “a person does not lie,” in the style of a migo that if he wanted he would have remained silent, or because of the reasoning that “wherever we have no presumption of prohibition except through his word, he is trusted to permit what he prohibited.” It was said that the Mahaneh Ephraim assumes migo as “why would he lie,” because he precedes the later distinction between “why would he lie” and “strength of claim,” and it was explained that the resolution of the inquiry becomes sharper in later generations. It was argued that the later picture is more complex, because within migo itself there are two components, and therefore even on the side that the mouth that prohibited is migo, there are two possible explanations, and on the side that it is “not migo” there are two more explanations.
“This is migo and this is migo” in the passage and Rabbi Yehoshua
It was said that on the plain meaning of the passage in the Talmud one gets “after all, this is migo and that is migo,” and from there one can understand that the mouth that prohibited is a stronger migo, and therefore Rabbi Yehoshua admits it. An opposite possibility was presented: to interpret that the Talmud’s own answer is that the case of the mouth that prohibited is not migo but a different mechanism, and therefore Rabbi Yehoshua admits it even though he disputes ordinary migo. It was argued that in Rashi it seems clear that this is an “extremely strong” migo, because the alternative is to remain silent, and that is an option a person would always think of, and so even Rabbi Yehoshua admits it.
Immediate speech versus after the speaking interval, a plausible explanation, and retroactive migo
The Mahaneh Ephraim ties a dispute among commentators to the question whether the mouth that prohibited was said only within immediate speech, or even after the speaking interval. It was said that one who limits it to immediate speech understands the credibility to be because of migo, and therefore after the speaking interval there is no credibility, because “we do not say retroactive migo.” It was said that one who extends it even after the speaking interval understands that the basis of the credibility does not depend only on the mechanism of migo, but on the other mechanisms, and it was said that then there may be a need for a “plausible explanation” to explain why the words were not said immediately. It was noted that the wording in the Shulchan Arukh includes an opinion that the credibility remains, and an opinion introduced as “some say” that limits it to immediate speech, unless she gave a plausible explanation.
When witnesses arrive: the Mishnah, the Shitah Mekubetzet, and the connection to the foundation of the principle’s force
The Mishnah says that if there are witnesses that the field belonged to his father, and he says, “I bought it from him,” he is not believed, and a commentary brought in the Shitah Mekubetzet was cited, according to which the novelty is that even if at first he had been believed by the force of the mouth that prohibited, if witnesses later come, his credibility does not stand and the property is taken from him until he brings proof. It was said that the difficulty in this approach is especially evident if one understands the mouth that prohibited as based on “why would he lie,” because at the time he made his claim he had a migo, so why should it matter that witnesses came afterward; by contrast, it was explained that the mechanisms of “do not use the force I gave” and “either way, accept the whole thing” explain how outside witnesses can cancel the force that was created by his own mouth. Another opinion was also cited in the Shitah Mekubetzet, according to which the credibility may remain—“once they believed him, they believed him”—and it was said that the dispute is connected to the question whether additional outside evidence cancels the framework of the mouth that prohibited or not.
Admitting that one wrote the document, “paid” with a migo of “forged,” and Rabbi David Povidarsky’s resolution
It was said that in the law of a document, “witnesses signed on a document are as if their testimony had been examined in court,” and that there is a rabbinic enactment requiring validation of a document, and the law of one who admits that he wrote the document was discussed—whether it still needs validation or does not need validation. A difficulty was presented from the fact that in the situation of “paid, with a migo of forged,” the borrower is believed until the lender validates the document, and then the borrower is liable, and from there it appears that witnesses who come later cancel a force that had been built earlier. Rabbi David Povidarsky distinguished and said that in the case of land, after he admitted, “It belonged to your father,” that is a complete admission equal to one hundred witnesses, and the credibility to say, “I bought it,” is complete credibility, so witnesses who come and strengthen the first part “teach us nothing new,” and perhaps one can say “once they believed him, they believed him”; by contrast, in the case of a document, the claim “paid, with a migo of forged” does not create credibility that the debt was paid, but only leaves a situation in which the lender has no collection instrument as long as the document has not been validated. Rabbi David Povidarsky held that because in the case of a document “they never actually believed him,” but rather “the lender simply had nothing with which to collect,” once the document is later validated, he now has something with which to collect, and so he collects. Therefore, there is no proof from there for the clarification of “once they believed him, they believed him” in the case of land.
Full Transcript
[Rabbi Michael Abraham] We talked about the mouth that prohibited; we saw fourteen explanations. The first two basically presented the mouth that prohibited as a kind of upgraded migo, and the last two presented it as a different mechanism. “Either way,” and the moral issue—don’t use my words in order to act against me, when we’re talking about use in the formal sense. The evidence, even if it comes from me, is still evidence—it proves reality—but to create possession-strength is basically to give power to the other side, and it isn’t fair that you use my words to give power to the other side. The difference between these two kinds of explanations—the first two and the last two—really can show up in the question of whether the mouth that prohibited is migo or not migo. According to the first two explanations, the mouth that prohibited is migo, just stronger. In the last two explanations, of course, they don’t dispute the first ones—the first ones are certainly true—but they add something beyond that: that in the mouth that prohibited there is some kind of mechanism that isn’t from the family of migo; it’s something else.
[Speaker B] But you still haven’t gotten me off the hook there—meaning, this thesis, what is this new mechanism?
[Rabbi Michael Abraham] I gave two explanations. You said three and four are the new mechanism? Yes, exactly. Those are two proposals for that same mechanism that exists in the mouth that prohibited beyond migo. One of them is: if you accept what he says, then accept it fully—don’t accept it halfway. And the second is: don’t use something that I gave you as a lever of power against me. Those are what make the mouth that prohibited unique, not migo. And really, in this context, when the later authorities discuss the question whether the mouth that prohibited is migo or something else, it seems to me that in the subtext—or really what stands behind the discussion—is the question whether the mouth that prohibited is the first two explanations, or the second two explanations, or one from the first pair and one from the second pair. This division I spoke about earlier is basically what the later authorities call: is the mouth that prohibited migo, or is the mouth that prohibited something else. So now, after we’ve seen the explanations—
[Speaker B] the second ones—we can—
[Rabbi Michael Abraham] find it sometimes even where there isn’t a claim of migo.
[Speaker B] The mouth that prohibited, the moral issue—
[Rabbi Michael Abraham] and the mechanism is not a mechanism of migo. It’s not that we don’t find this elsewhere. We find it where there is the mouth that prohibited; we defined what the mouth that prohibited is.
[Speaker B] Sometimes we can find the mouth that prohibited in a place that isn’t necessarily migo.
[Rabbi Michael Abraham] That formulation isn’t precise. We find the mouth that prohibited in the very place where we defined the mouth that prohibited. In those places where, either according to Rashi you can’t make a claim at all unless I speak, or according to Tosafot if I can pull the ground out from under your claim altogether—not win against you, but pull the ground out from under your claim. A migo that if he wanted he could have remained silent according to Rashi; a migo that he could have denied it altogether according to Tosafot. That defines where we find the mouth that prohibited. The question I’m asking is not where we find the mouth that prohibited, but when we do find the mouth that prohibited, what is the basis of its force? Why is it so strong? Is it a stronger migo, or is it the other two mechanisms? It’s not a question of where we find it. Where we find it is the definition we saw in Rashi and Tosafot—that defines what the mouth that prohibited is. After we’re in that place, which is the mouth that prohibited, now we ask: what is it doing? Is it an upgraded migo, or is it something else? And really this is the Mahaneh Ephraim—I’ll start with him. I said I’d still complete the previous lecture. The Mahaneh Ephraim in the laws of forbidden relations says as follows: “And one must examine and clarify this matter that they said: in every place, the mouth that prohibited is the mouth that permitted—what is the reason for this?” Why, what is this based on? “If because of migo, they derive it from the presumption that a person does not lie, because if he wanted he would have remained silent.” This is basically a kind of migo, a migo that he could have remained silent. What he calls here “the presumption,” he means that this is evidence: that if I were lying, then I would have lied better—here, I would have stayed silent. A migo that if he wanted he could have remained silent is of course Rashi; according to Tosafot it doesn’t have to be that, but that doesn’t matter right now. So he says: is the idea basically a migo idea, while assuming that migo is basically “why would he lie”? The Mahaneh Ephraim is too early historically; he comes before the later authorities sharpened this point that within migo itself, it isn’t only “why would he lie,” but there’s also strength of claim. The Mahaneh Ephraim assumes that if the mouth that prohibited is migo, that means “why would he lie.” But as I said earlier, that’s not exact. That distinction was born after his time. He’s from the eighteenth century, I think—seventeenth to eighteenth. It developed after his time; I think it developed in the nineteenth century. Atteret Hakhamim, I think, was the first to make that distinction explicitly. As we said, in Maimonides it’s apparently already written, but to define the matter explicitly, to put it on the table—that’s Atteret Hakhamim, and really mainly the sages of the twentieth century, Kovetz Shiurim, Rabbi Elchanan Wasserman, Rabbi Shimon Shkop, and so on. So the Mahaneh Ephraim basically just takes for granted that migo means “why would he lie.” The question whether the mouth that prohibited is migo—that is, “why would he lie”—or something else. What I said earlier is that our picture is more complex. Migo itself has two components: it has the “why would he lie,” and it has the strength of claim. Therefore even on the side that the mouth that prohibited is migo, there are two possible explanations. The first explanation and the second. The first is an upgraded “why would he lie”; the second is upgraded strength of claim; and it’s still all migo. And there’s the side that the mouth that prohibited is not migo—there too we saw two explanations. Right?
[Speaker D] If we’re talking about the mouth that prohibited, we’re talking about the mouth that prohibited in the case of the woman who spoke and prohibited herself—that’s what he’s talking about.
[Rabbi Michael Abraham] What do you mean, the case of the woman?
[Speaker D] When she says, “I was a married woman—”
[Speaker E] “—and I am divorced.”
[Speaker D] And I am divorced.
[Rabbi Michael Abraham] In the next Mishnah, yes.
[Speaker D] That’s what he’s talking about, he’s talking about a presumption of prohibition. Right, and then there’s the mouth that prohibited of Rabbi—
[Rabbi Michael Abraham] Yehoshua, in presumptive ownership of land—what difference does it make? It’s the same thing. What’s the difference? The mouth that prohibited, it’s the same—
[Speaker D] No, I’m trying to think how Tosafot’s framing of the mouth that prohibited works in the case of the woman.
[Rabbi Michael Abraham] What’s the problem? “I was a married woman and I am divorced,” okay? Basically she is the one who gave them the information that she had been a married woman; without that, she wouldn’t have had to defend herself at all and say that she is divorced.
[Speaker D] Right, that fits—
[Rabbi Michael Abraham] Rashi. But it seems to me I didn’t emphasize this enough, so I don’t remember now—it’s a case of prohibitions there. There’s no one standing opposite her in court there; it’s not like monetary law. Therefore, in the context of prohibitions, usually Tosafot too will explain the mouth that prohibited like Rashi. Because there’s no second party. Because, if you remember—I think I did say this—if you remember, the idea I said was that basically the mouth that prohibited according to Tosafot is the same the mouth that prohibited as Rashi. It’s just that the consideration that Rashi makes with respect to the claimant, Tosafot makes with respect to the court. Now what happens in prohibitions? In prohibitions, the court is the claimant. Right? Because there is no claimant in prohibitions; in prohibitions we come to determine what this woman’s status is. There isn’t someone standing opposite her. We, the judges, are the ones standing there and have to clarify what’s going on, so we are basically the claimant, in quotation marks, and we are also the—well, never mind.
[Speaker D] But the logic of the migo is Rashi’s logic, because if she hadn’t said “I was a married woman,” she could have stayed silent.
[Rabbi Michael Abraham] Yes, but I’m claiming that that isn’t Rashi’s logic; it’s the converged logic of Rashi and Tosafot in this case. Why? Because here you’re basically saying that if she hadn’t spoken, the court wouldn’t have thought of it—the claimant wouldn’t have thought of it. That’s Tosafot. No, that’s Rashi. No—the court wouldn’t have thought of it, not the claimant; there is no claimant.
[Speaker E] No, but with Tosafot it’s like—
[Speaker D] Tosafot and Rashi together.
[Speaker E] I—
[Rabbi Michael Abraham] I’m saying that here, in prohibitions, Rashi and Tosafot converge because there is no second party. The second party is the court. So the distinction we made between Rashi and Tosafot—whether it’s the claimant or the court—in prohibitions, that converges; the claimant is the court. Likewise in capital law, say, if there would be something like this—someone accused of murder or theft, and he has a migo. Maybe not theft, that’s monetary law—but never mind, some offense, okay? And he has a migo. There too the accuser is the court; there isn’t some second party accusing you. So there too I think the dispute between Rashi and Tosafot converges, and that’s exactly what’s nice here. Because otherwise there would be a serious problem. Because in the Talmud, apparently, in the dispute between Rashi and Tosafot, Rashi could have brought proof against Tosafot from the next Mishnah. You see there that there is the mouth that prohibited, and why is it called the mouth that prohibited? A situation where without him nothing would have happened, which seems to be exactly Rashi. So why doesn’t he challenge Tosafot from there? How would Tosafot explain that? The answer is that Tosafot would explain exactly what I’m saying now. You can’t bring proof from there, because there the second party is the court. It’s the same factor, so there too we say like Rashi. Our argument is what happens in monetary law: does the court in prohibitions function because it is the claimant, or does the court in prohibitions function because it is the court? The implication will be in monetary law, because in monetary law the claimant and the court are not the same thing. Okay? The logic of the mouth that prohibited is what distinguishes, not the formal issue of whether I—
[Speaker F] No, that’s the logic of the mouth that prohibited. I’m not saying it’s formal.
[Rabbi Michael Abraham] The logic of the mouth that prohibited—
[Speaker F] in the woman’s case is Tosafot’s logic.
[Speaker D] That’s not true, it’s Tosafot’s logic.
[Rabbi Michael Abraham] No, so I’m claiming that what happens in prohibitions is just the application of what we saw in monetary law to a situation in which the claimant and the court coincide. That’s why I also said that distinction—well, not the distinction, the opposite, the comparison between Rashi and Tosafot—that really it’s the same thing. Rashi speaks about the claimant and Tosafot speaks about the court. Where do you see that most clearly? In prohibitions. Because in prohibitions, basically the court and the claimant are the same thing. Therefore there Rashi and Tosafot aren’t arguing. There they will both explain the mouth that prohibited like Rashi. Okay? So I return to the Mahaneh Ephraim. Yes, Mahaneh Ephraim is by Rabbi Ephraim Navon, one of the sages of Turkey in the seventeenth/eighteenth century. Seventeenth, I think, or eighteenth—I don’t remember, something like that. There was enormous flourishing there in Turkey, by the way; it really was a world Torah center in Turkey. Yes, exactly. After the expulsion—after the expulsion from Spain, a great many Jews went to the territories of the Ottoman Empire. Okay? Which means Greece, Turkey, even the Land of Israel in that framework—Safed too. So all that flourishing of Jewish life, of Torah leadership across the Ottoman Empire, was a result of the expulsion. Okay? And therefore in Turkey there was tremendous flourishing. I mean, there was Rabbi Eliyahu Alfandari, and Rabbi Hayyim Palachi, and there was the Mahaneh Ephraim. Really the heaviest hitters of that period were the rabbis of Turkey. In Izmir, in Constantinople. Yes. In any case, the Mahaneh Ephraim is indeed considered one of the greatest commentators on Maimonides and one of the most important halakhic decisors. What? Palachi—that’s the pirate?
[Speaker E] No, that was a different pirate.
[Rabbi Michael Abraham] What pirate?
[Speaker E] There was a rabbi who was a sea pirate, a pirate.
[Rabbi Michael Abraham] Really? Wow.
[Speaker E] Yes, there was someone like that, also with the name Palachi—Shmuel Palachi, Rabbi Shmuel Palachi. Really? Wow. It was after the expulsion, but he only robbed Spanish ships. Ah, okay. And they didn’t work on the Sabbath, and everything was kosher. Really? He was a rabbi in Malta; he was the pirate of Malta. Reminds me—
[Rabbi Michael Abraham] It reminds me of the story about Rabbi Hayyim of Brisk. There was a gang of robbers in the city of Brisk, Jewish robbers. So Rabbi Hayyim invited the gang leader to his house—he was the rabbi of Brisk. The gang leader, of course, showed up. He says to him: tell me, you rob? Yes, what can you do, it’s a livelihood, that’s how we have to— So what—tell me, if the door is closed, you break down the door and go in? Of course—what else, how are we supposed to rob otherwise? And if the person resists, you use violence? Obviously, there’s no choice. Tell me, and if you’re hungry, do you open the refrigerator and take food, say? Are you crazy, Rabbi? What do you mean, eat something that isn’t kosher? He says, how could I eat such a thing? So he says, what do you mean—you beat people, you break doors, wreck property, make people miserable, but not eating kosher is the issue? He says, that’s livelihood—robbing is for livelihood. Eating non-kosher—I have kosher food at home, why would I need to eat non-kosher? There’s a difference. There are things you need, and things you don’t need. The truth is, that’s really life. It’s not—this isn’t an urban legend, it’s life. What, all these penitents in prison and in court and all that? I really believe them. It’s not just—not everyone is acting. No, it’s not only that. There’s something beyond that here. They really are like that. And it doesn’t interfere with the fact that he did all sorts of other things. Exactly. Same thing, exactly the same thing.
[Speaker F] There’s some Doron—
[Rabbi Michael Abraham] Oh really? Is that so? I didn’t know.
[Speaker F] He—
[Rabbi Michael Abraham] He probably isn’t a nice person for you, I assume.
[Speaker F] Heaven forbid, what are you talking about.
[Rabbi Michael Abraham] Well, sensitivity to the situation.
[Speaker E] I heard that actually—something real—that on Rosh Hashanah when everyone goes to Uman, the police get a bit of a break. Okay. I don’t mean that cynically. She wants to encourage it.
[Rabbi Michael Abraham] That everyone should go to Uman. Okay. The Ukrainian police, I think less so. Anyway, so the Mahaneh Ephraim basically says the question is whether the mouth that prohibited is migo and “why would he lie,” the presumption that he isn’t lying—or perhaps the reason is not because of migo, but rather because—“wherever we have no presumption of prohibition except through his word, he is believed to permit what he prohibited.” If the whole presumption against him is based on what he said, then he can also permit what he prohibited. Right? Either explanation three or four, really. I’d even say more likely three. Three? I don’t know—again, what is three and what is four?
[Speaker E] Three is the moral one. Moral, that’s it. So yes, more the moral one.
[Rabbi Michael Abraham] Since I’m the one who prohibited it, then don’t use it against me. Meaning, then I can be—well, but it could also be four.
[Speaker E] Look, he says: the presumption of prohibition we have is only from his word, therefore he is believed to permit what he prohibited. That sounds more like simple reasoning.
[Rabbi Michael Abraham] Don’t use the presumption of prohibition, because it comes from him.
[Speaker E] No, it doesn’t sound unfair or immoral.
[Rabbi Michael Abraham] No, and I’m also saying—I didn’t mean morality there. I don’t mean morality either. It’s morality in quotation marks. The point is: why are you using power that you got from me against me? It’s not a moral claim, but rather it’s not legally correct to do that. If these are considerations of power, the power is mine, not his. If he has power, I gave him that power. So it isn’t his power. It’s not a moral problem, like you shouldn’t do that because it’s not nice. Rather, no—it’s just not legally correct to do it.
[Speaker C] Fine, but what he’s talking about here isn’t specifically prohibitions. What?
[Speaker E] The presumption of prohibition he’s talking about here isn’t—
[Speaker C] specifically, not necessarily.
[Rabbi Michael Abraham] No, the mouth that prohibited is in general, yes.
[Speaker E] Because of the word “prohibited.”
[Rabbi Michael Abraham] So his dilemma is basically—
[Speaker F] not because of the word “prohibited,” but because we’re talking about the woman—
[Speaker E] who became impure, but he also prohibited my use of the field.
[Rabbi Michael Abraham] Yes, the mouth that prohibited means the mouth that created the problem is the mouth that can also solve it. Whether it’s a problem in monetary law or a problem in prohibitions—it’s not… They also use the mouth that prohibited in monetary law. The term appears there too. So that’s the discussion of the Mahaneh Ephraim. And now he brings two proofs. One proof: “It is true that the plain flow of our passage seems to come from the reasoning of migo.” The plain meaning of our passage seems to be that the mouth that prohibited is a kind of migo. Why? “For regarding our Mishnah, where Rabbi Yehoshua admits in the case of one who says, ‘This field belonged to your father, and I bought it from him,’ he is believed, because the mouth that prohibited is the mouth that permitted—as the Talmud says there, that it is because of migo.” Right? Where does the Talmud say that?
[Speaker F] In Ketubot? At the end he concludes from our passage that it’s a type of migo. Yes. What is it?
[Rabbi Michael Abraham] Where does the Talmud say that the mouth that prohibited is migo? In our Talmudic passage. It says so explicitly. It says explicitly—
[Speaker B] “After all, this is migo and that is migo”—
[Rabbi Michael Abraham] why does Rabbi Yehoshua dispute this migo but accept that migo? What do you see? That the mouth that prohibited is a kind of migo, just stronger; that’s why Rabbi Yehoshua admits it. But it’s still a kind of migo, just stronger. Right? Explicit in the Talmud. The Talmud says, after all, this is migo and that is migo. So you can’t get more explicit than that; it’s not an inference. The Talmud says they’re both migo. So what room is there for these investigations, if both are migo and that’s it? What’s the discussion? How can there be explanations three and four? Okay. So his claim is that indeed, in the straightforward flow of the passage, the plain direction of the passage seems to show that this thing is a kind of migo, and that also fits the words of Tosafot there regarding “for had I wished I would have said the principle of the mouth that prohibited,” and so on. So what do you answer? Is there really any necessity for that? That’s the question. Okay, but the question says that this too is migo and that too is migo, and then they explain that one is a stronger migo.
[Speaker E] You could say no—it’s not “this is migo and that is migo,” but rather this is migo and that is another mechanism. In the answer. Ah!
[Speaker H] For Rabbi Yehoshua too it’s like that—he doesn’t accept the mechanism.
[Rabbi Michael Abraham] No, Rashi says, for example, that he accepts the mechanism of migo, but only when there is the mouth that prohibited—there it’s migo right in front of him. On the contrary, in Rashi it looks like what we said: that the mouth that prohibited is an upgraded migo. Because Rashi explains why Rabbi Yehoshua admits the mouth that prohibited even though he disputes migo. Rashi in our passage says: because the mouth that prohibited is an extremely strong migo; it’s “why would he lie,” where the alternative is not to lie but to remain silent. There it’s obvious that there’s a migo. So even Rabbi Yehoshua, who doesn’t accept the concept of migo because maybe a person wouldn’t think of an alternative claim—remaining silent he always thinks of. That’s not an option that slips his mind, that he wouldn’t think of. Okay, so you see clearly that Rashi says: this is migo and that is migo, just this one is a stronger migo. In Rashi it’s clearly that way, right? But someone who says that it’s not migo—the second side of the Mahaneh Ephraim—will say that this is in fact the Talmud’s answer. When the Talmud asked, it assumed that really the mouth that prohibited too is migo, and so it asked: then why does Rabbi Yehoshua admit this migo if he disputes migo? Let him dispute this migo just as he disputes that migo. According to Rashi, the answer is that this one is a stronger migo, and that’s why he admits it. But someone else could say: what are you talking about? He admits it because it really isn’t migo. That itself is the Talmud’s answer. “Here the slaughtered ox is before you, and there the slaughtered ox is not before you.” When the slaughtered ox is before you, then there is only migo, and that Rabbi Yehoshua does not accept. When the slaughtered ox is not before you, that isn’t migo at all—that is the mouth that prohibited, and therefore Rabbi Yehoshua accepts it. So according to that, by the way, it comes out that for Rabbi Yehoshua, the mouth that prohibited contains only explanation three. That’s what’s nice here. Right? Because I said that explanations three and four don’t dispute explanations one and two—they’re certainly true. In every mouth that prohibited there is also migo, that’s clear. The only question is whether there is something beyond that, right? So explanations three and four are by definition additions to one and two, not in place of one and two. But in Rabbi Yehoshua’s position that’s not so. Because in Rabbi Yehoshua’s position, the claim is that migo—the whole idea of migo—he doesn’t have at all. He doesn’t have it at all; maybe he didn’t think of the second option. He doesn’t have the whole idea of migo. Then the Talmud asks: so why does he have the mouth that prohibited? And according to the second side of the Mahaneh Ephraim, the answer is: because the mouth that prohibited is not migo; what do you want? Meaning, the migo aspect that exists in the mouth that prohibited apparently Rabbi Yehoshua does not have, because he does not accept the whole idea of migo. What he does have in the mouth that prohibited is only because of explanations three and four. They are not in addition to one and two. In the positions that we actually rule by in Jewish law, where there is such a thing as migo—not like Rabbi Yehoshua, okay?—in the positions we rule by, no, meaning, where there is such a thing as migo, Rabban Gamliel, where there is such a thing as migo, Rav Nahman—okay? There it’s clear that even if the mouth that prohibited is not migo, it still also contains migo in addition. But what is nice is that according to Rabbi Yehoshua in Rashi—where Rabbi Yehoshua has no concept of migo at all, and yet he does admit the mouth that prohibited—then according to Rabbi Yehoshua, in the mouth that prohibited there are only explanations three and four, without explanations one and two. Okay? So his proof from the plain flow of our passage is not a proof. Because yes, that is the Talmud’s question—but what will the Talmud answer? In Rashi, yes. But this really sharpens that Rashi apparently understands that even in the conclusion, it is indeed migo. Right? Even in the conclusion it is migo. And someone who disagrees—someone who says that the mouth that prohibited is not migo—we’ll soon see if there’s such a view, say the second side of the Mahaneh Ephraim—then he’ll say that the Talmud is answering exactly this: no, you think that the mouth that prohibited is migo? Not at all. The mouth that prohibited is explanations three and four; it isn’t migo at all. And therefore there is no problem. And now four is the “either way”: if you accept what he says, accept all of what he says. Yes? Now, he connects this to—now I’ll continue reading: “And apparently it seems that this is an old dispute among the commentators, for there are those who explain this matter as referring specifically to when she says so within immediate speech.” We already saw this in Beit Yaakov. In the Mahaneh Ephraim, I continue reading: “And there are those who explain it even after the speaking interval.” Meaning, the question is whether when you say the mouth that prohibited is the mouth that permitted, is that only when you permit within immediate speech after having prohibited? Meaning, when she says, “I was a married woman and I am divorced.” That’s within immediate speech—the second part of the sentence comes within the speaking interval of the first part. But if a woman came and said, “I was a married woman,” or “I am a married woman,” or “I was,” whatever, and then goes home to sleep, and the discussion continues in the afternoon—then in the afternoon: “Yes, of course I was a married woman, but I’m divorced; I got divorced”—the question is whether in a case like that we say the mouth that prohibited or not. So he says the commentators disagreed about this. His claim is that this dispute among the commentators is basically the dispute over whether the mouth that prohibited is migo or not. Why? Because if the mouth that prohibited is migo, that’s what he explains here. “And it seems that this is what they disagree about: the one who explains it as within immediate speech holds that the reason for her credibility is because of migo, and therefore after the speaking interval she is not believed, because we do not say retroactive migo.” We already talked about retroactive migo, right? If you say there is a time gap, then at the stage when she says “I am divorced,” she no longer has the option to say “I was never a married woman at all,” because she already gave that away earlier. Lost. It’s already in the protocol. So she has no migo; she could not have made a different claim. But explanations three and four still exist here. If you believe me that I was a married woman, believe me also that I got divorced. What, you can’t use what I said against me, or else either way accept the whole thing. Yes? Explanations three and four do not depend on whether it’s within immediate speech or not.
[Speaker F] Isn’t it suspicious when a person comes and claims—say, she said yesterday that she had been married, and only tomorrow she remembers to say: oh, wait, but I got divorced. There’s something in the feeling that makes it suspicious, no? In terms of credibility, like, why didn’t you mention that already yesterday?
[Rabbi Michael Abraham] So here you have to split it into two things, and these are long Talmudic discussions. That’s the question whether she has to give a plausible explanation for her words. That’s the question whether she has to explain why yesterday she didn’t mention it. So yes, there will still be the mouth that prohibited even if she comes after a day, but provided—provided—that she gives an explanation why yesterday she didn’t mention it. Say she has an explanation; for instance, the discussion in court hadn’t yet reached the stage of whether divorced or not divorced—we were only clarifying the first stage. That’s all, so I didn’t need to mention it. So once that’s the case, there’s no question of why I waited. Therefore it’s fine. Once the problem is retroactive migo, those explanations won’t help, because tomorrow when she says “I am divorced,” she has no migo; it’s retroactive migo.
[Speaker F] But you still want to claim that three and four still exist for her in the mouth that prohibited, even when there’s a time gap.
[Rabbi Michael Abraham] Even when there’s a time gap. In terms of the intuition—so if there’s a plausible explanation, then it’s fine, right? True, if there’s no plausible explanation, then there really is a question about her—why didn’t you mention it yesterday?—and maybe that will undermine her mouth that prohibited. Okay? So there are long debates about the whole issue of plausible explanation; I’m not getting into that now. “And the one who explains it as applying even after the speaking interval,” that is, that even then there is the mouth that prohibited—how do you turn that thing off? I’m not going to turn it off. Okay. You can put it on airplane mode and then no calls will come in. What? You can put it on airplane mode and then no calls will come in. Okay. Fine, if it rings again we’ll do something. In any case, the one who explains it as after the speaking interval says that this is explanations three and four. Notice again, we arrive at the same situation as with Rabbi Yehoshua. Because when we’re after the speaking interval, the migo aspects cannot exist, because it’s retroactive migo, right? So if there is the mouth that prohibited after the speaking interval, that means explanations three and four—but only explanations three and four. Not in addition to one and two. Meaning, in every place where there will be a difference between migo and the mouth that prohibited, it’s clear that if I’m using the mouth that prohibited specifically and not migo, that’s only because of three and four. One and two aren’t there. Because if one and two were there, then maybe migo alone would also help here. Right? I’m saying—I spoke earlier about Rabbi Yehoshua. Rabbi Yehoshua says there is no such idea as migo at all, at least that’s how Rashi understands him, right? So when Rabbi Yehoshua admits the mouth that prohibited, and we explain that the mouth that prohibited is one of explanations three or four—and this is no longer like Rashi—but if we explain that it’s one of explanations three or four, then it comes out that according to Rabbi Yehoshua, the mouth that prohibited is only explanations three and four. He doesn’t have one and two, because he doesn’t have the whole idea of migo. Now I’m claiming that the same thing will be true where there’s a time gap. In actual Jewish law, not according to Rabbi Yehoshua but according to Rabban Gamliel. If there’s a time gap between “I was a married woman” and “I am divorced”—the “I am divorced” comes in the afternoon, okay? Then the migo is already gone, because it’s retroactive migo. But the mouth that prohibited, according to the side that says it is explanations three and four, will still exist even with a time gap, right? But here it’s obvious that the migo aspect won’t exist, because the migo aspect would be retroactive migo. Even if I say: wait, but this migo is stronger—it doesn’t help. The mechanism of migo, regardless of how strong it is—if it’s retroactive, then the mechanism of migo doesn’t exist. It’s not connected to its strength. Because the retroactive issue is a problem in the logic of migo, not in the power of migo. The logic can’t exist; you no longer now have the option to tell a different lie.
[Speaker F] You didn’t have a better claim, because now you no longer have the better claim.
[Rabbi Michael Abraham] Yes, exactly. So it makes no difference how strong the migo is; the logic of the migo collapses. Therefore, just as I said with Rabbi Yehoshua, I’m now saying in the situation where there is a gap between the two parts of the statement: if, according to one side, the mouth that prohibited helps, that is only explanations three and four, without one and two. Okay?
[Speaker F] But here, what exactly is the one who explains that it applies even after the speaking interval saying? And it seems—the first position is that there’s no migo because it’s retroactive migo. And in the second: “and the one who explains it as even after the speaking interval holds that not—” what’s the difference between the two views here?
[Rabbi Michael Abraham] Someone who says that the mouth that prohibited applies even after the speaking interval probably understands that the mouth that prohibited is explanations three and four, not one and two. He doesn’t see this as migo. And someone who says it’s only within immediate speech says that the mouth that prohibited is migo. Therefore you need immediate speech. Why shouldn’t it also apply after the speaking interval? What—after the speaking interval you’re no longer using the power I gave you against me? What difference does it make? So why, according to the view that doesn’t say it, do we not say the mouth that prohibited after the speaking interval? Because he holds that there are no explanations three and four; there are only explanations one and two. The mouth that prohibited is migo, just strong migo. After time has passed, it’s retroactive migo; you can’t say that anymore. Right? Therefore he says it’s only within immediate speech and not after the speaking interval. Someone who says that it works even after the speaking interval, or even specifically after the speaking interval, says: there are also explanations three and four here. I’m just claiming that if it’s after the speaking interval, then there are only explanations three and four.
[Speaker G] Because explanation one and two, which sees—
[Rabbi Michael Abraham] This case of “the mouth that prohibited is the mouth that permitted” as a kind of migu can’t exist, because it’s a retroactive migu. But that’s what the first authority says… right? That’s the first position. But that first authority really says, because of this, that “the mouth that prohibited” won’t help when there’s a time gap. Because he basically holds that “the mouth that prohibited” is a migu. So if there’s a time gap, there’s no migu, and there’s also no “the mouth that prohibited.” The second view agrees: the migu aspect in “the mouth that prohibited” doesn’t exist after the time of immediate continuation, so by that token it doesn’t exist. But he says there are also explanations three and four, and therefore “the mouth that prohibited” will work even after the time of immediate continuation. It will work because of explanations three and four, not because of the migu component in it.
[Speaker F] So then he basically holds that in “the mouth that prohibited” there’s a stronger migu? One, two, three, four? One and two?
[Rabbi Michael Abraham] Only one and two. One and two. One and two is an upgraded migu. Ah, that’s already upgraded? Of course. One and two are explanations of why the migu of “the mouth that prohibited” is stronger than an ordinary migu.
[Speaker F] So then who has one, two, three, four? Why do you need the…?
[Rabbi Michael Abraham] I’m saying: anyone who explains “the mouth that prohibited” by explanations three and four obviously also accepts one and two. After all, there is a migu in “the mouth that prohibited.” If I could have stayed silent, then that too is a claim that I’m not lying, because if I were lying I would have stayed silent.
[Speaker F] That’s the first position…
[Rabbi Michael Abraham] No, not before the first one. I’m saying: anyone who has “the mouth that prohibited” and understands it according to explanations three and four obviously also accepts one and two, he just adds three and four as well. Because clearly “the mouth that prohibited” also has the dimension of migu; you can’t argue with that. I could have stayed silent, so believe me that I’m not lying, because if I were lying I would have stayed silent. Right? Wait. Wait. So anyone who says explanations three and four claims: one and two are here too, but not only them—there’s also three and four. Anyone who says there are one and two says that in “the mouth that prohibited” there are only one and two. Now let’s see the implications.
[Speaker E] Wait, I have a question about that, regarding witnesses. It’s obvious to us that this is not a migu, because witnesses don’t have migu. I didn’t understand. What? After all, there is a case of “the mouth that prohibited” with witnesses.
[Rabbi Michael Abraham] That’s a big question, okay, there’s discussion about it.
[Speaker E] So who said there’s no migu for witnesses?
[Rabbi Michael Abraham] That’s only one view out of the three that we brought. It could be that there is no migu when there are two witnesses, it could be that witnesses don’t have migu, and it could be that migu doesn’t help in a case of two against two because that’s no weaker than actual witnesses. So once again: one approach says “the mouth that prohibited” is an upgraded migu, and that’s explanations one and two. Approach number two says “the mouth that prohibited” is an upgraded migu, but there’s also something more in it—namely explanations three and four. There’s no argument that in “the mouth that prohibited” there is also a migu component; factually that’s true.
[Speaker F] So I didn’t understand the difference. You said, what is “the mouth that prohibited” as an upgraded migu that has only one and two—what is upgraded about it? That also exists in migu alone.
[Rabbi Michael Abraham] Of course, but one and two explain why even the “the mouth that prohibited” dimension, the “why would I lie” dimension in “the mouth that prohibited,” is stronger than the “why would I lie” dimension of ordinary migu.
[Speaker F] Because each one by itself is a little stronger.
[Rabbi Michael Abraham] Exactly. It’s the same explanation as migu, just stronger, because it’s easier for me to lie by staying silent than by saying a lie in court. But it’s the same logic, just with greater force. That’s explanations one and two. Explanations three and four add to one and two, right?
[Speaker G] The volume of each of the parts is higher. Right.
[Rabbi Michael Abraham] And three and four aren’t just volume; they’re an actual addition. They’re another component in “the mouth that prohibited” that doesn’t exist in migu at all. Okay? Now, according to Rabbi Yehoshua, where there are none of the migu components at all—he doesn’t accept the logic of migu according to Rashi—then there will only be explanations three and four, not in addition. Right? But according to the Jewish law, where we do hold that there is such a thing as migu in Torah law, then obviously anyone who says there is migu in Torah law will also say that in “the mouth that prohibited” there is migu, only perhaps he may hold that there is something else in “the mouth that prohibited” besides the migu. And that is the Machaneh Ephraim. The Machaneh Ephraim says there are two ways to understand the halakhic view—not Rabbi Yehoshua, but Rabban Gamliel, who does accept the idea of migu. The question is why, according to his view, is “the mouth that prohibited” stronger? Is it only one and two, or also three and four? That’s the question. What’s the implication? Or also three and four. “The mouth that prohibited” also includes three and four. The implication is in a situation where only three and four can operate. In “the mouth that prohibited” there are all four components, but there are situations in which the first two components won’t help you. For example, if it’s after the time of immediate continuation. Because if it’s after the time of immediate continuation and I have “the mouth that prohibited,” the first two components exist in “the mouth that prohibited” in principle, but when it’s after the time of immediate continuation that won’t help, because it’s a retroactive migu. Then you’re left only with three and four. But if it’s within the time of immediate continuation? Then all four components exist in “the mouth that prohibited.” But after the time of immediate continuation, isn’t it only three and four? Because again, “the mouth that prohibited” in itself is based on all four explanations. On that the Machaneh Ephraim fully agrees; that’s completely clear. Where will the implication be? The implication will be in situations where the first two explanations won’t help you. “The mouth that prohibited” contains all four of these components of force. That’s clear. So why should I care whether it has four or two—bottom line, it’s stronger, it always works. What difference does it make whether it has four or two? Why does that matter? It matters because there are situations where the first two won’t help you.
[Speaker F] But—
[Speaker C] He’s trying here to clarify whether “the mouth that prohibited” is migu or—
[Speaker F] Not migu.
[Rabbi Michael Abraham] Right. Or not only migu. Is it migu, or is it not only migu but something more? Clearly it is also migu.
[Speaker F] It’s at least migu. Why, according to the second explanation, is it also migu? Why?
[Rabbi Michael Abraham] Obviously. What do you mean? “The mouth that prohibited”—leave aside the explanations—“the mouth that prohibited” is migu. I could have stayed silent; after all, if I wanted to lie, I would have stayed silent. What? Does the Machaneh Ephraim make the dichotomy either that it’s migu—
[Speaker D] Or that it’s not migu.
[Rabbi Michael Abraham] No, no, no. Either it’s only migu, or there is another component in it besides migu.
[Speaker D] “Not because of migu” means, yes, right, not only because of migu.
[Rabbi Michael Abraham] “Not because of migu” means not only because of migu. There’s no such thing as not because of migu—after all, there is migu here; you can’t argue with that. Factually there is migu here. If I wanted to lie, I would have stayed silent. What do you mean? The mechanism of migu is here.
[Speaker G] Right, but he says—
[Rabbi Michael Abraham] That “not because of migu” means the extra force in “the mouth that prohibited” comes from the components beyond migu. But obviously it also has migu components. He just claims that the differences between the migu components of “the mouth that prohibited” and ordinary migu don’t give “the mouth that prohibited” its force. That’s just ordinary migu. What makes “the mouth that prohibited” stronger than migu is only components three and four. But not that “the mouth that prohibited” has only three and four—it has everything. It’s just that its added value over ordinary migu is only explanations three and four. That’s the second side of the Machaneh Ephraim.
[Speaker E] Is that also the basis of the dispute if witnesses came?
[Rabbi Michael Abraham] In just a second we’ll see, in just a second we’ll see.
[Speaker E] Not other witnesses—not they themselves, not the witnesses on the document—the witnesses about the fact that there are witnesses that she was married, or there are witnesses about that.
[Rabbi Michael Abraham] We’re getting there, we’re getting there. So this dispute, this dispute—and by the way these are two opinions in the Shulchan Arukh, I think I pointed you to it—the woman who came and said, “I was a married woman, and I am divorced,” is believed, because “the mouth that prohibited is the mouth that permitted.” And some say this is specifically when she says so within the time of immediate continuation, unless she gave a reasonable explanation for her words. You saw that, Yael? Unless she gave a reasonable explanation for her words. Then it could work even after the time of immediate continuation. All right? And there are those who say it also helps after the time of immediate continuation. So that is the “some say,” the two views. By the way, the second “some say” doesn’t appear explicitly. But when this view appears as “some say,” we understand from that that the first view presumably does not make that distinction, right? The first view says “the mouth that prohibited is the mouth that permitted”—when? It doesn’t matter whether there is a time gap or there isn’t a time gap. And some say that it’s only within immediate continuation. Okay? As if the second opinion doesn’t appear, but it’s clear that the opening formulation of the Shulchan Arukh is that second opinion. That is the opinion that says: I don’t care—even if there’s a time gap, we still say “the mouth that prohibited.” Okay? These two opinions in the Shulchan Arukh, which are rooted in the medieval authorities (Rishonim)—the Shulchan Arukh is bringing medieval authorities here—so this dispute among the medieval authorities is really, says the Machaneh Ephraim, a dispute over the question of what the advantage of “the mouth that prohibited” is: is it explanations one and two—he says one, I add one and two—or three and four. Okay, that’s basically the idea here. Okay. Now, that’s regarding the question whether migu is the power of a claim or not the power of a claim, which basically completes the discussion we had earlier. Now there’s the next chapter, which is: what is the law when witnesses come? So in the Mishnah it says: if there are witnesses that it belonged to his father, and he says, “I bought it from him”—about land, yes? In our Mishnah, in the case Rabbi Yehoshua brings regarding land. So he says: “This field belonged to your father, and I bought it from him”—he is believed.
[Speaker C] Right? But it says: if there are witnesses that it belonged to his father, and he says, “I bought it from him,” he is not believed. Why not?
[Rabbi Michael Abraham] Because if there are witnesses, then you couldn’t have said that it didn’t belong to his father. We’re not living off your mouth, right? So in that case it’s not “it is from our mouth that we live.” This is not “the mouth that prohibited,” and therefore he is not believed. Why is he not believed? Fine, so it’s not from our mouth that we live—so what? After all, he has two witnesses who make the claimant the possessor, because it belonged to his father. I’m now sitting on the land, and he is the possessor, right? But I claim, “I bought it from your father—bring proof.” He is the possessor. Now the burden of proof is on you, and therefore you lose. Okay? So the witnesses are not testifying to something against you. You lose indirectly. The witnesses aren’t saying that you’re wrong. On the contrary, you too say that it belonged to his father. The witnesses strengthen what you are saying. But that strengthening is a shot in your own foot. Why? Because once we’re not living from your mouth, then you are not believed to permit, because you didn’t prohibit. The witnesses turned him into the prior owner, not you.
[Speaker F] But this stage of maybe he prohibited or maybe he didn’t—that really depends on when the witnesses come.
[Rabbi Michael Abraham] Wait, in one second we’ll get there. In one second. That’s the topic. Now in the Mishnah it says that if there are witnesses that it belonged to his father, and he says, “I bought it from him,” he is not believed. The plain sense of the Mishnah’s wording is that there are witnesses from the outset, initially. Right? “If there are witnesses”—not “if witnesses came afterward, then what happened?” Right? That’s how the Mishnah is phrased. “If there are witnesses” means if we know that it belonged to his father through witnesses, not through your word, then it won’t help you to say “I bought it from him.” That’s simple, right? That’s the wording of the Mishnah. But among the medieval authorities (Rishonim) there is a dispute about this. I brought the Shitah Mekubetzet; I sent you to the Shitah Mekubetzet. So on our Mishnah it says: “As for what the latter clause teaches, ‘and if there are witnesses,’ I found in the booklets that one could say that it teaches a novelty: if there are witnesses, even though he claims only out of uncertainty, since he is not being directly claimed against, so it is an uncertain claim, even so he is not believed. But if it had said, if he is directly claimed against he is not believed, there would be no novelty there, since he is making a definite claim.” Doesn’t matter. He says like this: “But it is still difficult to me, because it would have been far better to teach us that he has no migu where he says the other party directly claims him, than to teach us that even though he is uncertain he is not believed.” This pilpul is less important for us; it’s just an introduction. “And from the earlier Mishnayot we already hear it. And here it comes to teach us that even though we had already believed him because ‘the mouth that prohibited is the mouth that permitted,’ if witnesses later come that it belonged to his father, we no longer believe what he originally claimed, ‘I bought it from him,’ and he is not believed, and we remove the field from his possession until he brings proof for his words.” Okay? What is he saying? That our Mishnah is otherwise unnecessary. What’s obvious? That if witnesses came, then you’re not believed. You don’t have “the mouth that prohibited,” so why should you be believed? Right? If witnesses came, then he is the prior owner, he is the possessor—that’s obvious. Exactly. Therefore it is clear that our Mishnah is coming to teach a novel law. What is that? That the meaning is: even if the witnesses came after you had already been believed by virtue of “the mouth that prohibited is the mouth that permitted,” even then you lose your credibility. Okay? That’s how he understands the novelty in our Mishnah. That is not the plain reading of the Mishnah’s wording. The plain reading of the Mishnah is that there were…
[Speaker F] It sounds strange to me, because witnesses are always—two witnesses are always stronger; that’s the strongest proof, right? So then… what stronger thing can the son bring than two witnesses saying that the land is his?
[Rabbi Michael Abraham] He can’t. So what?
[Speaker F] That’s the maximum—so that’s the question. The question is, in the novelty he wants to bring here, like—
[Rabbi Michael Abraham] The novelty is that you have “the mouth that prohibited”—even though you don’t have “the mouth that prohibited,” even if the witnesses came after you spoke.
[Speaker F] And that’s not a novelty? A novelty? It’s a huge novelty! A huge novelty.
[Rabbi Michael Abraham] Why? What do you mean?
[Speaker F] We had “the mouth that prohibited”; you didn’t know there were witnesses. The one holding the land had “the mouth that prohibited.”
[Rabbi Michael Abraham] Right, therefore he is believed.
[Speaker F] Now he’s the one who first said, “It belonged to your father, and I bought it from him,” okay. Then the son comes—the one who holds, the possessor, the prior owner, yes, the possessor, the prior—
[Rabbi Michael Abraham] owner,
[Speaker F] and he brings two witnesses that the land is his, his father’s, that it belonged to his father. Right.
[Rabbi Michael Abraham] Now—
[Speaker F] there are two witnesses, which is the strongest thing possible.
[Rabbi Michael Abraham] There’s nothing stronger. What do the witnesses prove?
[Speaker D] But he too says that it belonged to his father.
[Rabbi Michael Abraham] What do the witnesses prove? That it belonged to his father. I agree that it belonged to his father—am I arguing with them? I’m only claiming that I bought it. The witnesses are not contradicting what I’m saying. The witnesses attack the fact that I prohibited—no, I didn’t prohibit, they prohibited. But when I prohibited, then yes, I prohibited, because there still weren’t witnesses. The witnesses came afterward. A very big novelty. I would have said that he wins anyway—what difference does it make if witnesses came afterward or not? After all, when he spoke, he really had the claim, “If I wanted to lie, I would have stayed silent.” He didn’t know there were witnesses. Right? So he is believed to say what? He is believed to say that it belonged to the father and he bought it, right? That’s what I’m saying. Now witnesses come and strengthen what he said—that it belonged to his father—why should he lose because of that? What’s the problem?
[Speaker F] They only add to his credibility, to the credibility of his statement. Yes, exactly. So what’s the problem with that? Ah? That’s explanations three and four.
[Rabbi Michael Abraham] Explanations three and four can explain this. Three—
[Speaker F] and four. Right.
[Rabbi Michael Abraham] The difficulty I raised here is seemingly from the migu side of “the mouth that prohibited.” Because if from the migu side of “the mouth that prohibited,” if at the time he spoke he had the migu and he was believed, why should I care that witnesses came afterward? Why is that interesting? The witnesses can at most turn him into the prior owner—fine, he’s the prior owner—but I am believed to extract from him because I, because I have migu. What’s the problem? What’s difficult? Okay? But if I go with explanations three and four, then in explanations three and four this can indeed be understood. Because in explanations three and four, what am I really saying? I’m saying, listen, I gave him the status of prior owner. How are you using the status that I gave him against me?
[Speaker G] So no, you—
[Rabbi Michael Abraham] Didn’t give him the status. We’re not using the status you gave him; we’re using the witnesses. What do you want? The witnesses arrived before the ruling, let’s say. What? You lost possession. Exactly. Meaning, in the end this is a question of power. In the end, after I have the witnesses, what happened? After I have the witnesses, he is the possessor, right? Once he is the possessor, how do you want to extract from him? He is the possessor; he is not the possessor based on your word. You want to claim that you bought it from his father? Fine, you even have migu. So what? So what if you have migu? We do not say migu in order to extract, at least according to Tosafot. Yes.
[Speaker D] And explanation two doesn’t—no, it doesn’t explain it. Two is explanation two, because we said that the focus of explanation two of “the mouth that prohibited” is that it is migu used to extract. That it gives the option for migu used to extract.
[Rabbi Michael Abraham] No, no, but in a case of “the mouth that prohibited,” then you were really the possessor only because of— I turned you into the possessor, because I said “it belonged to your father,” right? So now that I’m the one who gave you that status, I’m still considered the possessor. After all, I could simply have refrained from giving you that status and remained the possessor, right? In a place where there are witnesses who give you that status, then even the claim-power of migu is not here.
[Speaker D] Right, therefore explanation two also joins with three and four.
[Rabbi Michael Abraham] Ah, so explanation two is similar to three and four here, and not to one in this context.
[Speaker D] In terms of the option to lie.
[Rabbi Michael Abraham] Right, right, right. Meaning, the aspect of claim-power in migu here joins with explanations three and four, and not with explanation one.
[Speaker E] Why? I didn’t understand. Right now he—the one holding it became the possessor.
[Rabbi Michael Abraham] Right, and now witnesses came and he lost possession. Because witnesses came and say that it belonged to that other person’s father; that’s it, he becomes the possessor. If all I know that it belonged to that person’s father is only because I said so—everything the court knows—then he won’t get the status of possessor because of what I said; I remain the possessor. But if there are witnesses who give him possession status, then he is the possessor, finished. Okay? So therefore you’re really right, Noa: basically the last three explanations can explain why even if witnesses come afterward, you lose the force of “the mouth that prohibited” or of the migu. The first explanation cannot. The first explanation basically says: it’s “why would I lie,” and “why would I lie” exists in any case.
[Speaker F] Is all this before the court ruled, or does it not matter whether the court ruled or not? Meaning, if the court already ruled…
[Rabbi Michael Abraham] Let’s say for purposes of the discussion that this is before the court ruled, because if it’s after the court ruled, we simply enter another minefield that I don’t want to get into.
[Speaker F] That there’s no finality to the proceedings.
[Rabbi Michael Abraham] Exactly. Meaning the question is whether after the court rules we roll the wheel backward. And that is a question in the laws of—
[Speaker F] Court rulings.
[Rabbi Michael Abraham] Court rulings, not a question in the laws of evidence. Okay? Therefore I don’t want to get into it here. So let’s assume for the discussion that all this happened before the ruling. Okay. So that’s the Shitah Mekubetzet. He says that even… so the Shitah Mekubetzet says that the Mishnah must be saying “if there are witnesses” no matter when they came. If there are witnesses afterward or before—that’s what it means. And basically the novelty is that even if the witnesses came afterward, you lost your “the mouth that prohibited.” Which fits one of the last three explanations.
[Speaker F] And there’s a reason he’s also right, because there it’s unfair in both directions.
[Speaker E] He wrote that too.
[Rabbi Michael Abraham] What do you mean?
[Speaker F] Because let’s say—
[Speaker E] The prior owner doesn’t know he has witnesses.
[Speaker F] On the one hand, if the prior owner doesn’t know he has witnesses, then… but on the other hand…
[Rabbi Michael Abraham] Who said he knows he has witnesses?
[Speaker E] What do you mean?
[Speaker F] No, let’s assume he doesn’t know.
[Rabbi Michael Abraham] The first reason—
[Speaker E] that was only—
[Rabbi Michael Abraham] “the mouth that prohibited,” the first reason loses. Obviously. But at the next stage he does know, so what’s the problem?
[Speaker E] No, if we go according to the view that’s what he justified—the view that if they come afterward, then that one remains in his credibility. So he says, then the prior owner is right.
[Rabbi Michael Abraham] If the witnesses come afterward, then I lost my “the mouth that prohibited.” Yes. Even though they came afterward.
[Speaker E] Exactly. No, there’s the opposite opinion that he still remains believed.
[Rabbi Michael Abraham] That’s the Shitah Mekubetzet later on that he’ll bring. It’s a dispute. For now, in this approach—who is “he”?
[Speaker E] The Shitah Mekubetzet later writes it.
[Rabbi Michael Abraham] Wait, when we get there we’ll get there. I’m saying in this view, if the witnesses come afterward, I lose my “the mouth that prohibited.” Right.
[Speaker F] In this view, it’s not fair to the one holding the land. Why? Because he was perfectly fine.
[Rabbi Michael Abraham] He was fine, but he doesn’t—no, but he has no proof. Who said he wasn’t fine? He’s wonderful, but he has no proof, so let him pay. That means it’s unjust. No, it’s not true that it’s not—
[Speaker F] just.
[Speaker G] Why?
[Rabbi Michael Abraham] If there is money in your possession that isn’t yours legally, and you’re perfectly fine, you don’t even know it isn’t yours—so because of that we shouldn’t take the money from you? What does that have to do with anything?
[Speaker G] We’re not taking the money from her because—
[Speaker F] he’s not okay, but because…
[Rabbi Michael Abraham] No, she says he bought it, he really did buy it. How do you know it’s his? How do you know? I’m the judge; I don’t know what he knows and what he doesn’t know. I don’t give prizes for good behavior. I want to determine what the truth is. No, that’s not correct.
[Speaker F] Meaning, had the witnesses not come, we would have believed him.
[Rabbi Michael Abraham] Meaning, had the witnesses not come, I would have had no information, and now I do have information. Why shouldn’t I use it? For heaven’s sake.
[Speaker F] But this information doesn’t tell me anything new about the current state of the land.
[Rabbi Michael Abraham] Of course it doesn’t, but this information reestablishes possession status.
[Speaker F] Possession status, right. The possession status belongs to the prior owner. But on the other hand it also strengthens the second half of “the mouth that prohibited.”
[Rabbi Michael Abraham] The first half. The first, sorry. And the first half of “the mouth that prohibited” is against you. It strengthens the fact that you prohibited. Right, you prohibited, and therefore hand over the land.
[Speaker F] No, it strengthens the credibility of—
[Rabbi Michael Abraham] No, it doesn’t strengthen credibility, absolutely not.
[Speaker F] Before, we believed you for some reason…
[Rabbi Michael Abraham] Yael, that’s not right. Not right. Not right. We believe you in any case regarding the first part—that it belonged to his ancestors. That we believe you in any case, not because of “the mouth that prohibited.” We believe you because obviously—why would you say otherwise? The question is whether to believe you in the second part, that you bought it from them.
[Speaker F] We believed you before there were witnesses. Why did they believe him in the first part?
[Rabbi Michael Abraham] A litigant’s own admission, that’s all. Obviously. Because if he says it, then it’s apparently true. Why not? That’s not “the mouth that prohibited.” “The mouth that prohibited” is only when he comes to permit. So I say: because he prohibited, I also believe him to permit. Regarding the part where he prohibited, he is believed in any case. That’s not the issue. He doesn’t need the support of the witnesses to be believed on the first part, and he also has no interest in being believed on the first part—on the contrary. Okay? He just says it. Okay. The question is whether he is believed on the second part—that’s what matters. Now, if I have proof, I can’t ignore the proof because he behaved nicely. He behaved nicely, very good—what does that have to do with anything? If he gave me the power, then he can come with complaints: “Look, don’t use the power I gave you against me.” That I can understand. But he didn’t give the power; he was just decent. Okay, so you were decent—go to the president and get a citation on Independence Day. What does that have to do with this now? The land isn’t yours.
[Speaker B] But if—wait—if there’s a case where the land really was bought by him, and witnesses came… the witnesses know that the land was his. The witnesses don’t know about the purchase. Fine? So how does he—he has no proof. The deed got lost. It got lost. But that’s what I’m saying, so there’s something here that’s not—
[Rabbi Michael Abraham] But the judges don’t—
[Speaker B] know, and that’s exactly why he lost. No, again, an injustice.
[Rabbi Michael Abraham] No injustice at all. He should keep the deed. He should keep the deed. If he lost the deed, that’s his problem—what can you do? Someone who says, “I bought a house and didn’t register it in the land registry.” Okay? Now you say, “I never sold you the house at all.” We go to court. I say, what do you want? They’ll give you the house, after all. What do you want? I was perfectly fine; I just didn’t register it in the land registry—what can I do? I really did buy it. Very nice, but how do the judges know that you really bought it? You have to persuade the judges; they don’t know. I know that I bought it; the judges don’t know. So the fact that I behaved nicely, everything is fine, but I didn’t register it in the land registry—I got burned. If you want to protect your interests, protect your interests, keep the deed.
[Speaker B] And what if something really happened like she suggested, I don’t know, the house burned down?
[Rabbi Michael Abraham] Your problem. Or bring two witnesses that the deed burned, or make a copy—what can you do? We have to act based on evidence. The fact that it’s not your fault doesn’t help me.
[Speaker B] But the evidence the witnesses gave is retrospective evidence; it’s evidence about things that happened. Right.
[Rabbi Michael Abraham] Of course it is. So where are we now? That the land belonged to the ancestors of the claimant, right? We have two witnesses for that. Now there is a dispute whether he bought it or didn’t buy it. Right? What is the law in such a case?
[Speaker F] He has to bring—that’s it—
[Rabbi Michael Abraham] Let him bring proof that he bought it.
[Speaker F] And in the State of Israel today, let’s say if you buy a new apartment from a contractor, it takes many years before it gets registered in the land registry.
[Rabbi Michael Abraham] You use substitutes. You register with the housing company; there are substitutes, but you create some evidentiary dimension.
[Speaker F] Without that—part of it today is already registered in the land registry, but I don’t have the sales contract, the purchase contract, I don’t have it. You don’t have it?
[Rabbi Michael Abraham] That’s your problem, by the way. If it wasn’t registered in the land registry and you lost the sales contract, it’s possible they could throw you out of the house.
[Speaker F] But there is possession; all the neighbors know I’ve been here since then.
[Rabbi Michael Abraham] So possession is another question. If you’ve been there for three years and have established possession, that’s something else. The whole idea of established possession is that after three years the assumption is that a person loses the deed. Then I don’t have a problem with his saying, “I lost the deed.” Someone who tells me after a month, “I lost the deed”—who says he ever had a deed at all? Maybe he’s a liar. I can’t know. I’m a judge; I have to work according to the data in front of me. I can’t do this out of sympathy. The other side is also sympathetic—what can you do?
[Speaker F] This year I had to present receipts and they believed me and not—okay, yes, but maybe there wasn’t someone against you.
[Rabbi Michael Abraham] Obviously if there were someone against you—exactly. In income tax the state is against you. Yes, but it was customs.
[Speaker F] Fine, but nobody is against you.
[Rabbi Michael Abraham] The state is against you. Here there’s nobody who loses. After all, here there are two people. The state says, “I waive it for you,” fine. But if there are two people, the judges can’t waive your obligation at my expense. What do you mean waive it for you? I’m demanding my money. So that’s regarding the first opinion. So he says: “And even though later we learned: ‘She said, I was taken captive and I am pure,’ she is believed, because ‘the mouth that prohibited…’; and if there are witnesses that she was taken captive and she says, ‘I am pure,’ she is not believed; and if after she married witnesses came, she need not leave— and we say in the Gemara, not literally if she married, but once they permitted her to marry,” and so on—“a captive woman is different, because in the case of a captive woman they were lenient. However, the wording ‘and he says, I bought it from him’ is not precise enough.” Fine, he says there it’s possible to hesitate. I don’t want to get too deeply into that sugya there. The question in that sugya really is what the law is when witnesses come afterward. Yes—whether when witnesses come afterward, the law really reverses or does not reverse. It’s a complicated passage; later authorities discuss it here. In any case, for our purposes this is the first opinion. In the Shitah Mekubetzet on page 23 further on, two opinions are brought. It says in the completion: “As we learned, ‘I was taken captive and I am pure,’ she is believed, because ‘the mouth that prohibited…,’ and so on. One must consider: if she said, ‘I was taken captive,’ and after some time said, ‘I am pure,’ do we say ‘the mouth that prohibited…’?” You see: after some time she said “I am pure.” This is exactly the Machaneh Ephraim’s discussion. Right? What happens when there is a delay? “And regarding the field as well: if he said, ‘It belonged to your father,’ and after some time said, ‘I bought it from him,’ do we say ‘the mouth that prohibited’ or not? However, regarding witnesses, it is obvious to us that if they said, ‘This is our handwriting,’ and after the time of immediate continuation they said, ‘We were coerced,’ they are not believed, because once a witness has testified, he cannot go back and testify differently.” When “the mouth that prohibited” is said regarding witnesses, then if there is a time gap it definitely doesn’t work, because a witness cannot go back and alter his testimony afterward. But with a litigant who makes a claim, there is room to hesitate. That’s what he says. “And in the chapter ‘The two judges of decrees’ it implies that we do say there ‘the mouth that prohibited’”—against the earlier Shitah Mekubetzet that said if witnesses came afterward you lost “the mouth that prohibited,” right?—“for there the text reads, that certain person made a sign for another”—doesn’t matter, he brings the source cited there. Fine. For our purposes, in any case, two opinions are brought here. Right? There is one opinion like what we saw in the Shitah Mekubetzet here, and another opinion that says that “the mouth that prohibited” still remains in force. The fact that witnesses came afterward does not interfere. What’s the explanation for that? We already said what the explanation is, right? If “the mouth that prohibited” works like migu, then when there’s a time gap it’s retroactive migu, right? And that doesn’t help. If witnesses come after he finished his “the mouth that prohibited,” then if “the mouth that prohibited” works by virtue of migu, why should I care that witnesses came afterward? In the end I have the migu working in my favor. The witnesses can at most strengthen that the other party acquired, that it belonged to his ancestors. But as for the fact that I bought it, I have migu in favor of the claim that I bought it, and therefore I win. At least according to Nachmanides, who says migu can be used to extract, because in the end the other one remains the possessor, right? There are witnesses that he is the possessor. So there is room to hesitate here. Meaning, according to Tosafot, who do not say migu can be used to extract, maybe even that won’t help. Okay? But according to explanations two, three, and four, then even if witnesses came after he finished speaking—and in the end it is not from his mouth that we live—therefore he lost his “the mouth that prohibited,” and so this too, the implication of witnesses that came afterward, is a practical difference between the different explanations of the mechanism of “the mouth that prohibited.” Okay? A time gap is one practical difference, and witnesses coming afterward is a second practical difference. Now I asked you about someone who admits, “Yes, I wrote the document.” Yes? If someone comes and claims against him. In principle—strictly speaking, not strictly speaking—strictly speaking, a document is like two witnesses. Strictly speaking, a document is like two witnesses. “Witnesses signed on a document are as though their testimony was investigated in court.” It’s like two witnesses come and testify against me that I borrowed. That is the law of a document. Even though there are no witnesses here, there is a document with two signatures on it. Okay? And I am not believed to say “I paid,” and not believed to say “it’s forged,” and not believed to say anything. It’s two witnesses against me.
[Speaker C] And you don’t first need to validate the document?
[Rabbi Michael Abraham] No. Strictly speaking, no. The Sages enacted—that’s the accepted understanding—that this is rabbinic. Since a person can forge a document with two signatures, the Sages enacted that I can claim against the document that it’s forged, and demand of you: validate the signatures. Meaning, show me who the witnesses are that signed here, that you didn’t forge this. Show me two witnesses who recognize the signatures as the signatures of these particular witnesses. Why really, strictly speaking, not? What do you mean—what is the law of documents? Just one sentence. The law of documents is basically meant to make legal and commercial processes easier. Okay? I can’t drag around with me everywhere the witnesses I had for a loan or a purchase or something like that. And if they die, if they move to Australia, and now a dispute arises over land or a loan or something like that, I need to bring the witnesses. Who is going to bring them? They’ll come by boat from Australia or I don’t know how—it will take them a year. You can’t function like that. So there is no choice, and this is the concept of the law of documents: that the Torah, in the simple understanding—according to Maimonides maybe it is only rabbinic too, the whole concept of a document is a complicated story—but let’s say in the simple understanding, it is Torah law, that you can have two witnesses sign a document and no one will be able to claim anything against you. It’s like two witnesses. This is problematic because it enables forgery, but there’s no choice; the alternative is even more problematic. Then the Sages came and made another enactment. Since this is still problematic, fine, we will believe the document in your hand as if it were two witnesses, but you will have to validate the signatures. Okay? Without that we won’t believe you. This is rabbinic. By Torah law, no. Rabbinically, we won’t believe you without validating the signatures. Okay? That’s the background.
[Speaker F] Validation of the document—validation of the signatures on the document—can that be done one time, say like getting a notary’s certification on the signatures, and then that already works for any other time we need to prove the document?
[Rabbi Michael Abraham] You receive a signed court ruling that these witnesses—an authorization—or yes, a signed court ruling that these witnesses were validated before us, and that’s it. From then on you don’t need to validate it. Okay? Assuming, of course, that the signature of the court, the court’s authorization, can’t be forged. The assumption is that it can’t; those are known signatures, unlike signatures of private individuals. The signatures of the court belong to an institution, meaning people know them.
[Speaker F] But today, for example, just as an example, when I immigrated, I had to bring—for example—my school transcript, or the university, I don’t remember what it was, I had to bring it with a notary’s signature, as if, that it matches the original. Matches the original. Yes. Yes. But how here, let’s say, I brought it to the university and studied here, so obviously they accepted me and I studied and everything—but how do they know that the notary really is not—he really is—
[Rabbi Michael Abraham] Because a notary’s signature is harder to forge, and also legally it’s much more serious; you’re taking a very big risk. So what can you do—there can always be ways around it. We also talked about this in the sugya of migu. If there is a liar, he will always win. There’s nothing to do. You have to make life as difficult for him as possible. Brazen people always succeed; there’s nothing to do. It’s hard to operate against them. Okay. So that’s the explanation. Now I’m talking about one who admits, “Yes, I wrote the document.” Okay? So in the Gemara on page 19 the Gemara says: “Returning to the matter itself: Rav Huna said in the name of Rav: one who admits that he wrote the document does not require it to be validated.” Okay? And the context with Rabbi Meir, as I told you, is less important for our purposes. Then the Gemara says: “What did he hold? He said to him: when they come before us for judgment, we say to them: go validate your documents and then come down to judgment.” Meaning, if he claims that the document is forged, then the other person will have to validate the document. “One who admits that he wrote the document does not require it to be validated.” Okay? “Requires validation” means it requires validation; “does not require validation” means that if I admitted that the document was written, then the other person does not need to validate the document.
[Speaker F] The other person—meaning the one who doesn’t hold the document?
[Rabbi Michael Abraham] No, the one who does hold the document. “Must validate the document” always refers to the holder of the document. The question is whether he must or need not validate the document. Now here’s the question: he comes and claims against me. I say, “Right, this document is valid, I admit it, but I paid.” Okay? But I admitted that the document is valid. Fine? But I admitted that the document is valid. After all, I could have claimed that it was forged. So now this is the dispute whether one who admits that he wrote the document must validate it or need not validate it. I admitted that the document is good, so seemingly if the document is good, then now he can collect from me on the basis of this document. But one could say to him: validate the signatures. But why does he also need to validate the signatures? You yourself admitted that the document is good. And again, you see, this is a kind of “the mouth that prohibited.” “The mouth that prohibited”—you basically gave force to this document, and on that basis now he wants to use the document without validating it, meaning to waive the need to validate the document. Right? Now according to the one who says it still requires validation, what does that mean? That it requires validation. Right. Seemingly, I have here “the mouth that prohibited.” It requires validation. Fact. Right? Even though I admitted that the document is a valid document, since I said, “I paid.” What? There is here “the mouth that permitted.”
[Speaker F] No, there isn’t here—
[Rabbi Michael Abraham] The mouth that prohibited is the mouth that permitted. No—”the mouth that prohibited” here means: I admitted that the document was written, that the document is valid, that it isn’t forged. Okay? I only said that I repaid the loan. Okay? Now the question is whether the one holding the document—which, overall, is known to be a valid document—needs to authenticate it or not. What’s the idea? After all, I admitted that the document is valid, so what is there to authenticate? The point is this: if he authenticates the document, then there is no longer “the mouth that prohibited.” Because then the document doesn’t come from him. Exactly. Since it’s not relevant—I already admitted that the document is valid—why is authentication needed? It’s an authentication that is only formalistic; that is, not in order to prove that the document is valid, but so that we won’t be relying on him. Or in other words: if you don’t authenticate the document, we believe you that the document is valid, but since you are living off his statement, then the mouth that prohibited is the mouth that permitted. You won’t be able to collect with this document. So he has to authenticate the document. That’s what “he must authenticate it” means. One who says he does not need to authenticate it says: no authentication is needed. What does that mean? It means it won’t help me. In other words, I have a document against you; you have “the mouth that prohibited,” very nice—but the document is against you. There are two witnesses against you. Put it… there are two witnesses against the witness who…
[Speaker I] Against the one who admits?
[Rabbi Michael Abraham] Only if he authenticates it. According to the first view, it’s only if he authenticates it. And if he doesn’t authenticate it, then she won’t pay. The big question is a third question. So he has to authenticate it. Meaning, without authenticating it, it won’t help, right? We have here “the mouth that prohibited.” Now he authenticates it. What will the law be after he authenticates it?
[Speaker F] The mouth that permitted, the mouth that permitted…
[Rabbi Michael Abraham] No, no—the holder of the document, the holder of the document authenticated it. Again: Yael is suing me with a document for money. I said, the document is valid, but I repaid it. Okay? And let’s say we follow the view that one who admits that he wrote the document must authenticate it. Okay? So what does that mean? If you don’t authenticate the document, you won’t get the money. Why? Because I have “the mouth that prohibited.” You got the force of the document from me, right? So therefore you can’t collect, because I’m believed to say that I repaid it. Okay? The interesting question is what happens at the end. So you need to authenticate it. Now authenticate it… you authenticated it. You brought two witnesses and authenticated the signatures. Wait—you authenticated… I authenticated the signatures with two witnesses. What is the law in that case? You’ll win, right? The question is why. After all, I had “the mouth that prohibited”!
[Speaker F] You don’t have “the mouth that prohibited” because now we established through proof…
[Rabbi Michael Abraham] But the witnesses came afterward. After all, when I spoke, I had “the mouth that prohibited.” Now you authenticate the signatures, and now you have witnesses, right? So it’s like a case of witnesses who came afterward. And what do we see? That if Yael authenticates the document, she’ll be able to extract the money from me. Which means that if witnesses come later, that knocks out “the mouth that prohibited.” That’s proof against the view that says that witnesses who arrive later leave “the mouth that prohibited” intact. Not true—here we see that it doesn’t. That’s the difficulty. Now this really is what fits with the Mishnah.
[Speaker F] The Mishnah really says that if witnesses come afterward, then the one who had “the mouth that prohibited” is not believed. If witnesses come…
[Rabbi Michael Abraham] If witnesses come afterward, what you see there is that “the mouth that prohibited” falls away. But in the Shitah Mekubetzet there are two opinions. The question is: what does the second opinion do with this? Okay? That’s the Talmudic discussion. What does the second opinion do with this? So… Rav David Pobrezsky on this passage resolves it. But before Rav David Pobrezsky’s resolution—do you agree with the difficulty? I’m not sure I agree with it. Does “one who admits that he wrote the document must authenticate it” contradict the view that says that witnesses who came later do not knock out “the mouth that prohibited”?
[Speaker B] They do not knock it out.
[Rabbi Michael Abraham] Meaning, in the case of one who admits that he wrote the document, apparently we see that they do knock it out. But I’m saying I’m not sure we really see that there. When he…
[Speaker D] Admits that the document exists from the standpoint of possession… does that change who has possession of the money when he admits that this document existed?
[Rabbi Michael Abraham] He is the one in possession of the money; the other wants to extract it from him. The other has a document. It’s a complicated case in terms of how to define possession there. In the simple sense, it’s a dispute between Beit Shammai and Beit Hillel whether a document is considered already collected or not already collected. But in the straightforward understanding, I’m the possessor. He has a document against me; the document is evidence, but in terms of possession, I’m the possessor. It’s just that he has two witnesses. A document is like two witnesses. Two witnesses can extract from one in possession. Look, there’s a point here. When do the witnesses arrive in the case of one who admits that he wrote the document? When the two witnesses come and authenticate the document,
[Speaker E] then
[Rabbi Michael Abraham] the force of the witnesses is essentially created, right? Right. Not exactly. Because when they authenticated the signatures, what did they reveal here? Retroactively. They revealed that the witnesses who signed the document testify that I borrowed. Those witnesses were there at the time of the loan. They just aren’t before us right now. In order to verify that there were such witnesses, I now have to bring two witnesses to authenticate the signatures. But if I now brought two witnesses who authenticate the signatures, it turns out that there are two witnesses to the loan who already existed from the time of the loan. I’m saying that in the case of “the mouth that prohibited” followed by witnesses, like in our case—the woman, for example, says: “I was a married woman, and I am divorced.” And now two witnesses come afterward and say that she was a married woman. So the witnesses arrived after there was “the mouth that prohibited,” right? But in our case, the witnesses to the loan existed at the time of the loan—not when he claims “repaid,” but long before. At the moment he borrowed, there were already witnesses to the loan. The witnesses who signed the document testify to the loan. It’s just that there is such a rule that we can’t know whether there were such witnesses, because maybe the document is forged. It has to be authenticated, right? Now two witnesses come and authenticate the document. When they authenticate the document, what happens? What happens is that they confirm that the witnesses who signed the document really did exist. There really were witnesses here who saw a loan. When did those witnesses see the loan? At the time it was given. So that was long, long before I said that I repaid. But why does that…
[Speaker F] matter?
[Speaker C] Because
[Rabbi Michael Abraham] these are not witnesses who came after “the mouth that prohibited”; they are witnesses who were already there beforehand.
[Speaker F] But this document was not valid until the witnesses came.
[Rabbi Michael Abraham] That’s why I said I’m not sure—and I’m also not sure of the opposite. This is an intermediate case. Because it’s true that if he had remained silent and they had not authenticated the document, then he would have won. It doesn’t matter that there were witnesses to the loan; practically speaking, as far as we’re concerned there are no witnesses here, because the witnesses to the loan are not legally usable as long as the document has not been authenticated. Okay, so from the standpoint of the legal situation, I really would have won; I have “the mouth that prohibited.” Okay, but in terms of the question of who those witnesses are who stand against my “mouth that prohibited,” that’s an interesting question. On the Torah level, the question is whether it’s the authenticating witnesses or the signed witnesses, the testifying witnesses. The authenticating witnesses only prove that there were witnesses who saw the loan. And then that means that they are witnesses who were there before. And then it comes out that this document is actually a valid document from the moment it was written, and it already proves that there was a loan here. We have concerns—we’re not sure, maybe it’s forged—so we clarify that it’s not forged, and we authenticate it. Now once that has been clarified, it turns out that from the very beginning there was a document proving that there was a loan here. We are not relying on his mouth.
[Speaker D] But that doesn’t affect the mechanism of the migo; it doesn’t matter when the witnesses… What do you mean? Why does it matter? Right now, when the witnesses to the document come, those are the witnesses bringing me the solid proof that is supposed to knock out my migo. Why should I care what the proof is? I have strong proof from witnesses that knocks out my migo. Fine—there were other witnesses before that, but that seems meaningless to me in terms of when… how my migo falls. My migo falls when there is proof that essentially proves my first claim, the first “mouth that prohibited.” So why does it matter that there were earlier witnesses? Obviously the proof remains proof; the proof always remains proof.
[Rabbi Michael Abraham] No, but the proof that knocks out the migo…
[Speaker D] arrived after I stated “the mouth that prohibited.” The fact that it testifies to some act that happened before I said it… it doesn’t testify to an act that happened before.
[Rabbi Michael Abraham] It revives witnesses who existed earlier. Not the act—the witnesses. Who is testifying against me now? In the Talmud itself—maybe we’ll get there, I don’t know whether we’ll get to it or not—there is a dispute among the tannaim whether the witnesses who authenticate testify about the monetary obligation in the document or testify about the signatures of the witnesses. There is an approach among the tannaim that says that the two witnesses who authenticate the signatures are essentially witnesses to the loan. They are the witnesses to the loan, because when they testify that there are valid signatures here, they are basically considered the witnesses to the loan. Then these really are witnesses who came afterward. Right. But if I say that they are witnesses to the signatures, while the signed witnesses testify to the loan, then here there is room to hesitate, because the witnesses in fact were already there from the time of the loan. Why is “the mouth that prohibited” broken? The reasoning of the migo is broken. The “why would I lie” logic is broken—I agree.
[Speaker D] Possession is only undermined now.
[Rabbi Michael Abraham] No, no—not possession, because there are witnesses against me. That’s exactly the point.
[Speaker D] Formally, as it were, the court sees it now; the possession shifts only now.
[Rabbi Michael Abraham] So what? It shifts.
[Speaker D] Yes, but it shifts now, after I already said “the mouth that prohibited,” according to the view that “the mouth that prohibited” does not fall.
[Rabbi Michael Abraham] But you didn’t become the possessor. If you became the possessor, then that reversal itself flips back again. I didn’t understand.
[Speaker D] According to the view that “the mouth that prohibited” doesn’t fall, right? When you brought witnesses, “the mouth that prohibited” didn’t…
[Rabbi Michael Abraham] That’s the “why would I lie.” Because “the mouth that prohibited” is “why would I lie.” So why should I care that witnesses came later? The “why would I lie” still stands in my favor. Right? But possession—the second explanation, not the first explanation—the second explanation here won’t work.
[Speaker G] Because you’re not going with that view at all.
[Rabbi Michael Abraham] The second explanation won’t work here, regardless now of which view he follows. The second explanation, which speaks about possession—why am I the possessor? Because I essentially could have won, right? I could have won if I had stayed silent or if I had… It’s not true that I could have won; there are two witnesses. I thought I could have won at the time I spoke, and therefore…
[Speaker D] Then “the mouth that prohibited” falls according to the possession explanation. Right?
[Rabbi Michael Abraham] Exactly. Right. Even if the witnesses came later. Because this is not considered later witnesses; it’s earlier witnesses.
[Speaker D] Even without the earlier witnesses—the later witnesses. In any case, “the mouth that prohibited” falls.
[Rabbi Michael Abraham] Meaning, even if the witnesses came later—that is, even if I don’t assume that these are witnesses who already existed—still it falls, because explanations two through four—because explanations two through four leave, right, they knock out “the mouth that prohibited” in any event. And as for “why would I lie,” it really doesn’t matter whether formally this revives existing witnesses or whether these are new witnesses, because practically there is still a “why would I lie” here. I still feel there’s a problem here. All right, I need to think about it. I have some feeling that something here nevertheless… yes. All right, but in principle you’re right in the calculation; you’re right. That’s correct. And then explanation one remains intact, while the other three explanations do not remain, so in any case this becomes the question whether “the mouth that prohibited” is explanation one or explanations two, three, four. And therefore it doesn’t matter whether the witnesses revive the signed witnesses or whether they themselves are the witnesses on the matter. So what does Rav David actually say? Did you see him?
[Speaker E] Not the same thing.
[Rabbi Michael Abraham] Why is there no difficulty from “one who admits that he wrote the document” against the Shitah Mekubetzet?
[Speaker E] There are two mechanisms here because of which I exempt him. Is it because I believe him, or is it because technically I have no way to collect from him? Right.
[Rabbi Michael Abraham] What do you mean? Look, by the way—where are you on the page? On the preparation sheet. Have you already started the next passage?
[Speaker E] Everyone started page seven, but we skipped…
[Speaker F] Oh, really? Why? Why did you skip?
[Speaker E] To move ahead.
[Rabbi Michael Abraham] Too bad. All right, you have to get used to learning this. Okay, so in any case, come—let’s read it now. Look. Because I see that in terms of time there’s simply no point in starting the next passage already, so we’ll begin the next passage at the next meeting. “As for the reason that in the case of ‘repaid’ with a migo of ‘forged,’ it is obvious that through authentication his claim of ‘repaid’ is nullified.” Yes? What is he basically saying? Yael sues me on the basis of a document. And I say: the promissory note has been repaid. And I have a migo, because I could have said: the document is forged—and then I would have forced her to authenticate the document. Right? That is called “repaid with a migo of forged.” Okay? “Through authentication his claim of ‘repaid’ is nullified.” What does that mean? If she now—so I force her to authenticate. She authenticated it! She brought two witnesses and authenticated it. What happens then? She’ll obviously get the money. Why? After all, I still have the migo of “repaid with a migo of forged,” so why does the fact that she authenticated it afterward cancel the matter? “And ostensibly this requires analysis: why didn’t the medieval authorities (Rishonim) bring proof from ‘repaid with a migo of forged,’ which is discussed later, that even though he is believed, nevertheless afterward, when the document is authenticated, he is no longer believed, for we say to them: go authenticate your documents and then come back to court. For this is the law of ‘one who admits that he wrote the document must authenticate it’: the borrower is believed to say ‘repaid,’ and the lender must authenticate it; and when he authenticates it, the borrower is obligated to pay. And in Nachmanides, in the chapter ‘one who sells the house,'” in Bava Batra, “it is explained that ‘repaid with a migo of forged’ is not just an ordinary migo, but ‘the mouth that prohibited.'” An interesting question: after all, this is a dispute between Rashi and Tosafot, right? What is “the mouth that prohibited”? According to Rashi, “the mouth that prohibited” is a migo that he could have remained silent; according to Tosafot, it’s a migo that he could have said “there never was such a thing.” Now here this is a kind of migo of “there never was such a thing.” Right? I say there was no loan. What about the document? The document is forged. Basically I’m claiming “there never was such a thing.” Now there’s a dispute over whether “repaid with a migo of forged” is “the mouth that prohibited” or an ordinary migo. Ostensibly that’s the dispute between Rashi and Tosafot, right? Because I have to make a claim. According to Rashi this is not “the mouth that prohibited.” The question is whether it’s like Tosafot, or whether there’s even something beyond Tosafot here. But never mind—for our purposes, Nachmanides says that it is “the mouth that prohibited.” “If so, it requires analysis why the medieval authorities did not mention this law, for it proves that even though he is believed because of ‘the mouth that prohibited,’ nevertheless once afterward the document is authenticated and ‘the mouth that prohibited’ is nullified, he is no longer believed. And the same applies here.” The same thing here too: if witnesses come after he stated “the mouth that prohibited,” his “mouth that prohibited” is nullified. So how can the Shitah Mekubetzet write otherwise? I’m skipping the square brackets because that’s a suggestion that he rejects. “And it seems that… and it seems that they are not at all similar. For specifically here there is room to say: once we believed him, we believed him—even if witnesses came later. Once they believed him when he stated ‘the mouth that prohibited,’ they believed him; even if witnesses come afterward, we still believe him. Because after he admitted that it had belonged to the father of his fellow, which is a complete admission like a hundred witnesses, nevertheless they believed him to say that he bought it. So it turns out that now, when witnesses come to say that it belonged to the father, they are not telling us anything new. Because even before, we already knew clearly that it belonged to the father, and nevertheless we believed him that he bought it by means of ‘the mouth that prohibited.’ And what do the witnesses do? They simply strengthen the claim that he himself made—that it belonged to the father. So why should that interfere in any way? What’s the problem? After all, even before I believed that it belonged to the father, and nevertheless I still believed the person that he bought it from the father, right? Now witnesses come and strengthen the first half of his claim—why should that interfere with accepting the second half? And therefore we say: since they already believed him and it was decided that it is his, that credibility remains, and we do not take it from him even if witnesses come.” Okay?
[Speaker C] Here there’s already a verdict.
[Rabbi Michael Abraham] What’s that? Here there’s already a verdict. So I said: I’m not getting into the issue of the verdict right now; for the moment I’m ignoring that. “Which is not the case regarding ‘repaid with a migo of forged’: the fact that the borrower is exempted through the claim of ‘repaid’ is not because of credibility—that he is believed that he really is exempt—but simply because the lender has nothing with which to collect. When I say ‘repaid with a migo of forged,’ does that make me believed concerning the claim that there was a loan and I repaid it? Or does ‘repaid with a migo of forged’ basically mean: for my purposes, think of it as though I claimed ‘forged.’ It’s basically as if… because after all, I can’t claim ‘repaid’ against a document, right? I can’t claim ‘repaid’ against a document; there is a document against me. The only reason I can claim ‘repaid’ here is because I could have claimed ‘forged.’ So this document is worth nothing, right? So they are not really believing me that there was a loan and I repaid it. Rather, because I had the option to claim ‘forged,’ we treat me as though I am now claiming ‘forged.’ Or in other words: there is no document here. You have nothing with which to collect. Not that we believe… now when the court writes the ruling, it won’t write that there was a loan and the loan was repaid. What it will write is: no proof was brought before us that there was a loan. Because the document is still considered forged from my perspective. Because the person who claims that the document exists—the borrower—also says that he repaid. So insofar as he claims that the document exists, he also claims that he repaid. Therefore you can’t rely on him in order to create this document here, right? Therefore I’m basically saying that it won’t help. Yes, exactly.
[Speaker F] Why, if there’s a document against me, can’t I claim that I repaid?
[Rabbi Michael Abraham] In principle, there are two witnesses against you, and so long as you didn’t take back the document—that’s the law of a document. One who presents a document is like two witnesses. Okay? “What is your document doing in my hand?” Why didn’t you take it if you repaid? But behind that lies the point that if I have a document, that document constitutes two witnesses against you. And then he says: what comes out is that in the case of land, we believe him that it belonged to the father and that he bought it from the father. But here we do not believe him that there was a loan and that it was repaid. Because fundamentally a document is not valid without authentication; a document needs authentication. I want to waive the need for authentication because the other party admitted that the document is valid. But he also said that he repaid. So his admission is worth nothing, right? So now what? We reset the situation. Exactly. We do not believe him that he repaid; we only do not believe the holder of the document until he authenticates it. That’s all. Right? That’s basically the legal situation here. Okay? And that is not the same as land, where we believe that it belonged to his father and I bought it from his father. Here we are only saying: you have no document as long as you haven’t authenticated it. What do you want? Authenticate the document, and then you’ll collect. We have no basis to give you the money. Okay?
[Speaker F] And then he said, wait—why is that different from land? Why in the case of land do we believe the one in possession of the land? According to this line of reasoning here, why in the case of land do we believe him?
[Rabbi Michael Abraham] Because in the case of land I am believed to say that the land belonged to his father—that is an admission by a litigant. I am believed to say that it belonged to his father, and after that I am also believed because of “the mouth that prohibited” to say that I bought it from him. So they accept from me the whole testimony: that it belonged to his father and that I bought it from him. But here the basic law is that one cannot collect with a document. One cannot collect with a document. So if one cannot collect with a document, then that is essentially the situation that remains even after I said that this document is valid—I said nothing.
[Speaker F] Because his statement, his admission,
[Rabbi Michael Abraham] does not constitute authentication of the document. Yes.
[Speaker F] It’s like saying there isn’t two—
[Speaker D] three and four.
[Rabbi Michael Abraham] Right. That’s basically the subtext, exactly. That’s basically the subtext, okay? Basically that’s exactly the reasoning of two, three, and four. I’m saying: if the authentication that I gave your document—for I basically authenticated it—the authentication that I gave your document is qualified by the fact that I repaid it, then insofar as you accept that this is a valid document, also accept that I repaid it. Or in other words, you cannot accept from my force that this is a valid document. Don’t use what I gave you against me. Okay? And then if I’m not using what I gave… they’re not using what I gave against me, then what happens? We remain in the original situation: there is an unauthenticated document here, and you can’t use it. That’s all. “And similarly, in the case of ‘repaid’ with a migo of ‘forged,’ this is not considered authentication at all,” for his admission that it is repaid—that is, that the document is valid—is not considered authentication. “And so Maimonides also wrote, that after the enactment requiring authentication, it is not a document without authentication,” meaning, as long as you have not authenticated the document, there is no document here. “So it turns out that the only reason he is believed in ‘repaid with a migo of forged’—when I claim ‘repaid’ with a migo of ‘forged,’ why am I believed?—is only to say that the lender has no document with which he can collect, but not that he is believed in his admission that it is a document,” not that I am believed that the document is a valid document and that I repaid. No—the authentication, my validation of the document, is not accepted, so it goes back to being an unauthenticated document, which is no document. “And nevertheless he can claim ‘repaid,’ yes—but all his exemption is only because there is no document. Therefore, in this case, according to everyone, if afterward the document is authenticated, for now he has a document and has something with which to collect—that is, with the force of the document—then he certainly collects the debt.” So here, if witnesses come afterward, they turn the document into a document; they authenticate the document, so obviously that changes things. I lost my force, because I am not believed by virtue of “the mouth that prohibited.” “The mouth that prohibited” only says that the authentication you gave is not authentication. Fine—I don’t need it; I have witnesses who authenticate. Exactly, I have witnesses who authenticate, so the document was not a document; now the witnesses come and do turn it into a document. Why shouldn’t he collect with it? But in the first case, where I am believed about everything, then witnesses come and testify that what I said at the beginning—that it belonged to your father—is also true. So what? Okay, and as a result I am also believed to say that I bought it from him. Therefore there, the arrival of witnesses afterward changes nothing at all; they only strengthen the first half of my claim. Okay? “Therefore, in this case, according to everyone, if afterward the document is authenticated, for now he has a document and has something with which to collect, namely the force of the document, he properly collects the debt. For one cannot say here, ‘once we believed him, we believed him,’ because he was never really believed; they did not truly believe him that he was in fact exempt. It was simply that the lender had nothing with which to collect. Therefore, now that he has something with which to collect, he collects. Which is not the case here regarding ‘this field belonged to your father,’ where the fact that the land remains in his possession is necessarily because they believed him.” Why do I leave the land with him? Because they believed him, right? What does that mean, they believed him? They believed him that the land belonged to his forefathers and that he in fact bought it from them. “For otherwise he would have been obligated to return it, since he admitted that it belonged to the father, and the admission of a litigant is like a hundred witnesses. Necessarily, then, it is because they gave him full credibility in what he claimed: ‘I bought it from him.'” So here I accept from him the whole story: it belonged to the father, and I bought it. If so, now when witnesses come and say, “It belonged to the father”—what difference does that make? Let them come afterward—why is that interesting? In the end they only strengthen the first half of my claim. “And therefore, in this case the medieval authorities debated whether they overturn the ruling when witnesses come, or whether we say, ‘once we believed him, we believed him'”—the medieval authorities here meaning the Shitah Mekubetzet that we saw—”that since he was already fully believed that it is his, it detracts nothing that witnesses came afterward and ‘the mouth that prohibited’ was nullified, and the credibility that he already had remains.” Okay? That’s basically the explanation. Okay, we’ll stop here, and next time we’ll begin the next passage. I’ll send you more. Did you finish page seven? Okay, I was just asking how much you managed. Right now I only did page five and a half.
[Speaker B] Right,
[Rabbi Michael Abraham] I was asking what you had done, okay.
[Speaker B] Seven up to a certain point.
[Rabbi Michael Abraham] Okay, so some finished and some didn’t finish.
[Speaker B] Well, in any case it wasn’t finished.
[Rabbi Michael Abraham] No, some are saying they finished page seven.
[Speaker B] You didn’t finish page seven? No, how? Ah, I looked. Right, there isn’t much, but we didn’t finish. I also got to four because we read Talmud there. Okay.