A Lecture on the Law of 'Migu' and an Attached Booklet on 'Legal Rationales'

5768

A Lecture on the Law of 'Migu'

 

And an Attached Booklet on 'Legal Rationales'

Michael Abraham

For questions and comments: 052-3320543 (Michael Abraham)

To obtain the booklet: 03-6166977 (Eichenbroner)

Table of Contents

 

General Introduction

 

Part I: The Law of 'Migu'

(The different roles in the religious court: judges, witnesses, and litigants)

A. Introduction: Two laws within migu

B. Three roles in the religious court: litigants, witnesses, and judges

C. The intrinsic disqualification of a litigant, and intrinsic disqualifications generally

D. A distinction between two kinds of evidence produced by a disqualified witness

E. Migu and a litigant's admission

F. Migu as 'power of claim' and as inference: an illustration from the case in Mishnah Ketubot

G. Migu as 'power of claim'

H. The conception of possession and the presumption of the prior possessor assumed here

I. A source from Maimonides, beginning of chapter 6 of Hilkhot To'en VeNit'an

J. Interim summary: the two kinds of migu

K. The sugya of bending down and whispering: implications of this understanding for migu as 'power of claim'

L. The relation between migu and similar laws: definition and force

M. Solving the previous problems: is migu part of the law of evidence, or of claims?

N. Migu as inference

A new explanation (added years later)

 

O. The law of migu and the law of a 'fraudulent' case

P. Why there is no migu for witnesses, only for litigants

Q. Further applications in understanding migu: migu involving brazenness, migu to exempt from an oath, and more

R. Migu as power of credibility (added years later)

Part II: Between Factual Reasoning and Legal Reasoning

(The relation between the two laws of migu)

A. Introduction: combining the two aspects of migu

B. A first connection: one aspect causes the other

C. The opposite possibility: connecting the inference in migu with its power of claim

D. 'Power of claim' as the mechanism for stopping the 'returning wheel' (in the Meitcheter's question)

E. Migu and possession: between factual reasoning and legal reasoning

 

F. Reasoning in Jewish law

 

G. The source, status, and force of legal reasonings

H. What is the conceptual-logical basis for these reasonings

I. A concluding note: possessory statuses created by the plausibility of claims rather than by a factual situation

J. Summary

 

Appendix: A discussion clarifying the points (edited by the one who prepared it for print)

General Introduction

The topic of migu is common currency among those who inhabit the study hall, and despite this, it is a well-known fact that understanding it is difficult from several angles. This is true especially regarding the law of 'migu as power of claim' or 'power of credibility' (below we shall see a difference between these two formulations), as it was defined by later authorities (Acharonim). This law appears to be some sort of scriptural decree, yet it has no clear source, and its rationale and boundaries remain obscure to many. The basic difficulty is: what room is there to say that one claim, which is not actually made, can 'transfer power' to another, weaker claim, which the litigant actually makes? As the initiators of this lecture asked me: is this power, or credibility, something like electricity that can be transferred from claim to claim?

In these pages we will try to deal somewhat with the law of migu in general, and migu as 'power of claim' in particular.[1] From there, discussions branch out into migu as inference ('why would he lie?'), as well as an explanation of several necessary aspects of the various functions of the religious court in Jewish law, and the roles of the parties who appear before it (judges, litigants, and witnesses). From these topics we will proceed in the second part to an inquiry into another kind of reasoning in Jewish law, which we shall call 'legal reasoning.'

The material presented here expands upon a single lecture delivered at the request of several students in the holy city of Bnei Brak, who, although accustomed to using the notion of 'migu as power of claim,' still find it difficult to understand it properly.

I therefore ask the reader's forgiveness for the paucity of references, and for the fact that we have not surveyed the sugyot and the various interpretive approaches in full. This is not a comprehensive study, but rather a summary of the lecture (slightly expanded for this limited printing). Only the main points are presented here, which in my opinion are required in order to understand the law of migu, together with several illustrations meant to clarify the ideas.

As stated, there is no attempt here to encompass the entire broad topic of migu, its sugyot, and the various interpretive methods, but only to try to understand the logic that underlies this law.

The discussion of 'legal reasonings' conducted in Part II is only preliminary, and should be viewed as reflections prompted by migu as 'power of claim,' and by students' common difficulties in understanding it. These reflections deal with the implications of this law and its analogues for Jewish law generally, and even for thought in general.

Michael Abraham

Yeruham, 5765

Part I: The Law of 'Migu'

(The different roles in the religious court: judges, witnesses, and litigants)

Introduction: Two laws within migu

There are several proofs that the law of migu cannot be understood solely as evidence (an inference, 'why would he lie?'), but that there must be an additional law here. This law is termed by the later authorities either 'power of claim' or 'power of credibility.'[2] Let us present several examples briefly (since the commentators have already discussed them at length):

1. Migu for half a claim, according to the view that he wins only the half with respect to which he has a migu (for example, according to Rashbam, Bava Batra 33b, s.v. VeHadrei Peirei). If migu were an inference clarifying that his claim is true, he should win everything.
2. We plead for orphans that the debt was paid, on the basis of a migu that the document is forged, even though we would not plead the claim of forgery itself for them, because it is uncommon (see Tosafot at the beginning of Gittin, and Kovetz Shiurim II, sec. 3). Likewise, 'I returned it' on the basis of a migu that it was lost by circumstances beyond one's control, even though that latter claim is uncommon and is not pleaded for them (according to Tosafot, Bava Batra 70, unlike Nachmanides there).

Note that the proof from here does not depend on the disputes among the medieval authorities (Rishonim) regarding migu for orphans: whether it must be based on another claim that we would also plead for them, or not. Even if the migu here were based on an alternative claim that we would indeed plead for the orphans, from the standpoint of the inference of 'why would he lie?' it still makes no sense to construct a migu in a case of pleading for them, for in the end the evidentiary force of migu is not generated here (since the fact that the orphans did not make that claim is not because they are speaking the truth).[3]

3. Whoever says 'I did not borrow' is as one who says 'I did not repay.' For example: one who denied a loan claim and asserted, 'It never happened,' and afterward witnesses came regarding the loan; he then retracts and says, 'I borrowed and repaid.' In such a case we rule that he is not believed (he has been established as a liar; see Maimonides, Hilkhot To'en VeNit'an 6:1). At first glance, however, the proof from 'why would he lie?' should still remain in place (if he did not know about the witnesses when he first made his claim).
4. R. Shimon Shkop, Novellae to Ketubot sec. 27 proved this as well from one who claims 'paid' on the basis of a migu that the document is forged, and afterwards witnesses come and validate the document; he is not believed. Here too, the inference of 'why would he lie?' would seem to remain intact, just as in the previous subsection.[4]
5. A migu involving brazenness, which helps according to several medieval authorities (to exempt from payment, though it does not help exempt from an oath). See, for example, Kovetz Shiurim II, sec. 3, subsecs. 22-23, and there as well in the second part of sec. 3, subsec. 12, and more.

On the basis of all this, several later authorities argued (see above) that migu contains an additional law: power of claim, or power of credibility.

But it is difficult to say sweepingly that there is no inference at all in migu (as seems implied by the words of the author of Atteret Hakhamim cited above), for there are kinds of migu in which the mechanism of power of claim clearly has no relevance, and only the inference is applicable. Let us note several examples briefly (here too, many have already written at length):

1. Migu for half a claim. For example, in the dispute between Nachmanides and Riaz on Bava Batra 134a (see Shiltei HaGibborim, 1b in the Rif pages), they dispute whether one who says 'This is my son' is believed to exempt his wife from levirate release through a migu that he could have divorced her; is he also believed to permit her to a priest? (Regarding that there is no migu, though it follows from his claim.)
2. Migu from one monetary issue to another. This depends on the explanation we will give for power of claim (for then one can see that it does not operate with regard to migu from one monetary issue to another), and see below.
3. The opinion of R. Yosef ibn Migash, followed by most medieval authorities, that although one cannot retract and make a new claim where it totally contradicts his first words, nevertheless when he retracts from one exempting claim to another exempting claim, he is believed on the basis of migu. This is explained in Novellae of R. Shmuel Rozovsky on Bava Batra sec. 8 and in Kovetz Shiurim on Bava Batra sec. 112, that migu as inference continues to help even after witnesses have come against the alternative claim. Perhaps R. Yosef ibn Migash follows his general view here, since he disagrees with Rashbam cited above in Bava Batra regarding migu for half a claim.
4. In Kovetz Shiurim II, sec. 3, subsec. 24, he cites the migu of Tosafot, s.v. R. Assi, Ketubot 13a, and Rashba, Kiddushin 50a, s.v. Ha DaAmrinan, from a poor claim to a somewhat less poor claim. For example, a claim that appears less false than the present claim, even though neither helps legally. In such a case he has no power of credibility at all, and it is obvious that such a migu is based only on inference and evidence.

In summary, it is quite clear that, according to the various medieval positions, migu contains two laws. Yet the relationship between them, as understood by the later authorities, is not sufficiently clear. Some presented this as a dispute (among Amoraim or among medieval authorities), implying that at least according to certain views migu contains only the law of power of claim and no law of inference at all, and vice versa. Others claimed that both laws were said in migu together, and both are necessary (that is, if one is missing, the migu does not help at all). Still others claimed that migu contains both laws together, but each has significance even separately. Most simply, it appears that this depends on the kind of case under discussion (see below): there are cases in which migu operates this way, and cases in which it operates that way.

Now both of these laws are problematic, as is clear to anyone who reflects on them, and both require clarification, both conceptually and with regard to their source.

First, as to migu as power of claim: Rabbi Shaul Breish, in his approbation to Mishpetei HaMigu, notes what many have sensed, that we need a source for such a novel law. Whence do we derive the transfer of power from a strong claim to a weaker one, when the litigant is specifically asserting the weaker one? He adds that we see also in the law of 'the mouth that prohibited' in Ketubot that the Gemara seeks a source for it. How is migu as power of claim different, existing despite the fact that we have found no source for it? How do we know there is such a category of transferring force from a strong claim that he does not make to a weak claim that he does make, without a source?

But even regarding migu as inference ('why would he lie?'), there are several difficulties. There is a practical difficulty showing that migu cannot operate as inference at all (see Novellae of the Illui of Meitch sec. 65): if we know that the claim will help him by virtue of migu, then the migu is nullified. The whole superiority of the other claim is based on the fact that the present claim puts him at a disadvantage. But the very adoption of a law of migu, which gives added force to the weaker claim, cancels that very disadvantage and therefore cancels the whole essence of the law of migu.

One should note that this consideration does not apply to all types of migu. There are 'absolute' kinds of migu where, even after accepting them, the superiority of the other claim remains. For example, 'half is mine' with a migu that he could have claimed 'all of it is mine' (see Tosafot and the medieval authorities at the beginning of Bava Metzia). There, the migu allows him to win half, but the alternative claim would have allowed him to win more than that. In such a situation, even if he knew about the mechanism of migu, it would still have been better for him to make the better claim. The difference is not merely one of credibility but of ability to win more money. That is not nullified by the argument of the Illui of Meitch. Likewise in the first case of Rabbi Hiyya, where according to most medieval authorities there is migu for one who admits part, since he could have denied everything. There are more examples, but this is not the place.[5] Below we will discuss in greater detail another difficulty: what use is an inference like migu in qualifying a litigant, who is a witness intrinsically disqualified in his person?

Let us note that these two difficulties regarding migu as inference have different characters: the first difficulty (that of the Illui of Meitch) claims that migu contains no inference at all. The second claims that even if it does contain an inference, it cannot help (since it comes to qualify the litigant, who is a disqualified witness).

Three roles in the religious court: litigants, witnesses, and judges

At the outset, we must introduce some general premises and clarify the nature of litigation in a religious court, and the roles of the different parties there.

At first glance, the law of migu belongs to the law of evidence in Choshen Mishpat. It seems to stand among the laws of evidence, somewhere between two witnesses and the law of possession, which in the simple understanding is merely a rule of judicial conduct and not evidence at all (unless one invokes the presumption that whatever is in a person's hand is his; that too has already been much discussed).

But one should note that in the context of migu we are usually speaking about a litigant, not a witness (migu for witnesses is in general a problematic doctrine, to the point that some wrote that with respect to witnesses migu does not help at all, and not merely for various technical reasons as most medieval authorities explain, but this is not the place). As we shall see below, this distinction makes it very difficult to understand migu as part of the law of evidence.

The litigant is supposed to state in the religious court only the core of the matter (liable or not liable), and not to address the facts as such. His role is to request that the court act, and to say what he asks it to do (for example, that the other party pay him, or that he asks not to pay so-and-so, and the like). This is stated explicitly in Maimonides, beginning of chapter 6 of Hilkhot To'en VeNit'an, and in the Tur and Shulchan Arukh, Choshen Mishpat, at the beginning of sec. 75. This was noted by R. Yehonatan Arenberg, Meisharim I, p. 43, and also at the beginning of the book Mishpetei HaMigu (though there it is for different reasons, as will become clear below).[6]

By contrast, clarifying the factual details is the role of the various forms of evidence (witnesses and the like), not of the litigant. The witnesses and the evidence assist the judges in deciding which demand (claim) they should accept.

Finally, the role of the judges is to determine the law in light of the facts, and to accept or reject the requests of the litigants.

The intrinsic disqualification of a litigant, and intrinsic disqualifications generally

It seems that for this reason the litigant is disqualified from serving as a witness by an intrinsic disqualification. Presumably this is not a suspicion of lying but an intrinsic disqualification (see Maimonides, end of chapter 15 of Hilkhot Edut, and elsewhere; this is an old point). Parenthetically, we may say that the reason for the disqualification appears to be 'separation of authorities': the litigant does not participate in clarifying reality, for that is the role of the witnesses and the evidence. See, for example, Rashbam (cited in Tosafot, s.v. KeGon, Bava Kamma 90b), who explained in a similar way the law that a witness cannot become a judge. Rashbam writes that this is learned from what is written: 'and the two men shall stand before the Lord.' The later authorities explained (see, for example, Shiurei R. Shmuel, Bava Batra 114, subsec. 21 and more) that his intent is that the witnesses must constitute a different standing in the court from the judges (there must be a separation between these two kinds of roles in court), and therefore they are as though required to 'stand before them,' opposite one another. The conclusion is that each of the three roles in the court must deal exclusively with its own task.

If so, it is very reasonable to say that for that very reason a litigant also cannot judge. This is a third type of role, and he too is forbidden to fill one of the other two roles. I later found that this is stated explicitly in Ritva responsum no. 52 regarding the disqualification of a litigant from testimony, where he also ties that disqualification to the verse 'and the two men shall stand before the Lord' (and explains thereby the Ra'avad's view in the sugya of splitting testimony; see the Rosh and Kovetz Shiurim in the sugya of Ila'a and Tuvia in Makkot 7a, and also the view of his teacher the Ra'ah). He writes there as follows:

For whatever a person testifies concerning himself, whether to his benefit or to his detriment, has no status of testimony at all; rather, he is like a litigant himself, who argues and thereby acquits or obligates himself. For witnesses are separate from the litigants, as it is written: 'And the two men who have the dispute shall stand'; and we say: 'the two men'—these are the witnesses; 'who have the dispute'—these are the litigants.[7]

Here it is worth noting that although the litigant is indeed required to add facts to his claim, and not suffice with merely stating what he demands from the court, as seems from our discussion below based on Maimonides at the beginning of chapter 6 of Hilkhot To'en VeNit'an, in light of Ritva's words above it is obvious that this is not said as factual clarification, but only because when there is no evidence we must adjudicate on the basis of the claims. That is: there is a case decided on the basis of evidence, and a case decided on the basis of claims.

Generally speaking, when the court cannot reach a decision on the basis of the factual evidence presented before it, the decision is solely on the basis of the parties' claims. This does not mean that their claims serve as evidence in place of ordinary evidence (such as witnesses), but that what determines the judgment is the parties' relative standing before the litigation began in light of their claims, that is, who would have prevailed had no evidence been brought at all. The court leaves the money with the possessor, or with the prior possessor, because their force is stronger and they would have prevailed before the case was opened. Present possession and the presumption of the prior possessor reflect the balance of power that existed before the litigation began. The other litigant tried to open a proceeding that would change that situation, so the court asked him for evidence; but when he failed to bring enough evidence to change the situation, the court leaves matters as they were before the litigation. In such a case the litigant prevails by virtue of his status relative to the other litigant, namely: who is the one stirring up the issue; the one in pain must go to the doctor.

The conclusion is that the need for a factual component in the litigant's claim is not required as evidence in order to win, since the claim helps only the party with the juridical advantage, not one on whose behalf we possess factual clarification. There is a law in Jewish law that to prevail by virtue of the relative standing of the parties in court, a claim is required. A person is not allowed to win a case without making a reasonable claim in his favor (somewhat like a presumption without a claim). But it is clear that the ruling itself is not made by virtue of the claim, because, as we saw, the litigant is not intended to clarify the facts. Victory comes from status, and lack of a claim can obstruct victory because of the rule that one does not prevail without a claim.

This is what is called in Jewish law prevailing by virtue of claims (rather than by evidence). The claim is accepted because of the force and strength of that litigant's standing. To be sure, the absence of claims may prevent victory, but it is obvious (and the basis of the matter will become clearer below) that a claim cannot serve as evidence in favor of the claimant.[8]

It should be noted that just as we saw that a litigant is disqualified from testimony by an intrinsic disqualification, so too within the law of evidence itself there are laws that disqualify good evidence for various reasons, not specifically because of suspicion of falsehood. From this we see that there are additional dimensions in the law of evidence, beyond clarifying factual truth (see below).

For example, related witnesses are disqualified by an intrinsic disqualification, even where the truth is as they say (see Maimonides, Hilkhot Edut 13:15, and negative commandment 287). The source of the matter is the verse 'Fathers shall not be put to death because of sons.' Now the famous example of Moses and Aaron was already brought in Bava Batra 159a and by the medieval authorities; but in fact the same applies to any two witnesses, even if they are related, for it is explicit in the Gemara and in Maimonides there that there is no suspicion that they are not speaking the truth. That is, related witnesses are not suspected of lying, and nevertheless we invalidate their testimony even when the truth is known to us in this case. We do not accept their words, even though we assess that this is the factual truth. The reason may be that same 'separation of authorities' mentioned above in Ritva: relatives are considered part of the litigant himself, and therefore their testimony about him is like a person's testimony about himself, which violates the principle of separation of authorities in the court.[9]

Several later authorities already asked (Kovetz Shiurim, Hazon Ish, R. Shmuel): why should we not accept the words of Moses and Aaron on the basis of the inference generated by their words? That is, we see that an evidentiary indication is generated by the words of any two related witnesses (and certainly Moses and Aaron), since they are not lying. If so, even if we do not accept them as witnesses, why should we not accept their words as evidence, like a presumption?

Some wrote that indeed, as anan sahadei, we would accept their words, though there is no formal testimony here (see Kovetz Shiurim on Bava Batra sec. 580 and the practical ramifications there). Others answered (see Kovetz Shiurim there, where he doubted his own earlier words, and also in the name of Maharik, and Ayelet HaShachar on Bava Batra 159a, s.v. Od Hikshu) that there is a scriptural decree not to use the words of relatives at all, even as anan sahadei. This again appears to reflect the principle of 'separation of authorities.' It will be explained further below.

A distinction between two kinds of evidence produced by a disqualified witness

As we saw above, a litigant is not part of the apparatus for clarifying reality at all. Hence his reliability is in practice irrelevant. The litigant is responsible only for making claims, and even if he wins on the basis of claims, this is not because we believe his claim, meaning that it clarified reality for us. Victory comes from a force-based status (like possession and the like), and the claim is required only as a side condition (perhaps one could say that lack of a claim creates a flaw, somewhat akin to the well-known inquiry regarding a claim of uncertainty).

Now, just as with any disqualified witness where the disqualification is intrinsic (and not a suspicion of lying, as with relatives above), so too regarding a litigant one can ask, as those later authorities asked regarding relatives: if there is no suspicion of lying with respect to him, why should the court not accept his words, if not as testimony then at least as an inference, since we assume he speaks the truth? Our knowledge of the truth is no weaker than a presumption, or a majority, or any other clarification, and the law should be decided accordingly.

The point becomes sharper if we recall that, fundamentally, in monetary law the court rules according to informed inference, and not only according to the ordinary laws of evidence (see Maimonides, beginning of chapter 24 of Hilkhot Sanhedrin; compare beginning of chapter 20 there regarding penal law). Even nowadays, when that rule has been suspended (see Maimonides there), some trace of it remains, except that the judge is only permitted to withdraw (the law of a 'fraudulent' case) and not to rule affirmatively on the basis of inference. If so, in the end Moses and Aaron, like a litigant, and like all those intrinsically disqualified, produce an inference in the judge's mind. Why, then, should he not rely on it in order to decide the law, or at least to withdraw?

One may note, however, that in most cases there is also the testimony of the other litigant against this litigant, and that litigant too is credible in his own words. If so, one party's words stand against the other's, and possession decides. But there are cases where the other side does not enjoy such credibility (for example, in a certain claim versus an uncertain claim, where absent possession everyone agrees the certain claim is stronger; or in the case of orphans who do not know the factual situation regarding their father, making this a good uncertain claim; or in a litigant's admission, where there is no opposing party; or when the other litigant is disqualified from testimony for some reason. See further below).

We mentioned that the later authorities wrote regarding relatives that this difficulty can be answered in a technical way: if we qualify their testimony through inference, we have nullified the scriptural decree disqualifying relatives. In other words, that empties the Torah law of content. Put differently: the Torah decreed that we are not to use them and must disqualify them; if we accept their testimony by means of another kind of clarification, we are in effect using them after all, albeit indirectly.

This explanation is difficult, however, because, as Kovetz Shiurim wrote above, there are several practical differences between the question whether they are trusted as witnesses or merely as evidence (for example, testimony required to establish a legal matter, and more). If so, why should we not invalidate them as witnesses and yet accept them as inference? Therefore we shall now propose another formulation.

For this purpose we must distinguish between two kinds of evidence that can emerge from the words of a litigant, or of a relative:

1. There is evidence concerning the reliability of the person, that is, the reliability of the litigant himself as a witness. Only afterwards, since he said something and we have evidence that he is trustworthy, that yields clarification about reality. This is the case with Moses and Aaron: when they say something, we are certain they are speaking the truth, and it follows that reality was indeed as they said. The assumption about the reliability of Moses and Aaron teaches us nothing directly about reality itself. It only proves that these two witnesses are trustworthy, and it follows that their words correctly describe reality. In this way clarification about reality is generated, but only indirectly.
2. Direct evidence about the facts, generated through his words. This is the situation when the litigant's words create a state in which reality itself becomes clarified. For example, if there is testimony that this litigant is mute, then the very fact that he speaks in court is itself evidence about reality. It proves that he is not mute.

It is clear that for our purposes these two kinds of evidence must be distinguished. Evidence of the second kind, which emerges from disqualified witnesses, can be accepted, for they are only the occasion by which the evidence arises, while the clarification of reality is not based on their personal reliability. That is no worse than any other evidence, as those later authorities said regarding relatives. But with evidence of the first kind the situation is different, for it only confirms the witnesses' trustworthiness, while the clarification of the facts comes only indirectly. If so, after proving the witnesses' trustworthiness through such evidence, the law is ultimately decided on the basis of their testimony and trustworthiness. But that is precisely what the Torah forbade: deciding on the basis of the testimony of those witnesses. Therefore we will not accept this sort of derivative evidence from witnesses who are intrinsically disqualified. In these cases we do not accept their words even as evidence, not merely as testimony.

Let us now illustrate this with the cases above.

The trustworthiness of relatives generally (and of Moses and Aaron in particular) is not direct evidence about the content of their words. The assumption is that Moses and Aaron are truth-speakers. It follows that what they said indeed occurred. But the basic clarification is about the person, namely that they themselves are trustworthy witnesses. If we accept that clarification, then in the end we are still deciding the law on the basis of Moses and Aaron's testimony, only with added evidence that their testimony is true. But the Torah said 'Fathers shall not be put to death because of sons'—fathers are not put to death by the testimony of sons. Here we are still putting them to death by sons' testimony, that is, relatives. Hence, in the first kind of derivative evidence there is no room to validate a witness intrinsically disqualified.[10]

Put differently: in reality we knew from the outset that Moses and Aaron speak the truth. That was never the problem. So what good does an additional proof of their truthfulness do us? It is not direct proof regarding the facts themselves, only regarding the trustworthiness of Moses and Aaron. But that trustworthiness is already known and absolute from the start, and yet it does not help us at all. The reason is that their disqualification does not stem from lack of trustworthiness; therefore no evidence regarding their own trustworthiness helps us here. Such evidence cannot solve the problem of their intrinsic disqualification, which is what prevents us from accepting their testimony.

An illustration is a case where we suspect certain testimony of being given through mistaken perception, meaning that the witnesses are not lying but only imagine that reality is as they say, whereas in fact it was not so. Here evidence that the witnesses are not liars is useless, because that is not our concern. Here we would use only direct evidence about reality itself, not about the speakers.

The fact that evidence about the relatives themselves does not help can be explained in light of what we suggested above. If relatives are disqualified from testifying because of the law of 'Fathers shall not be put to death because of sons,' then even if we accept their words as evidence rather than as testimony, fathers are still put to death by sons' testimony. In our formulation: the separation of authorities in the court, which requires that a person not testify about himself, since litigant (and his relatives) are one category while testimony and clarification are another, is still breached here, because the litigant (or the relatives, who are also within his circle) serves as the basis for evidence in the case. That cannot be accepted.

Presumably the same is true of the litigant himself, perhaps even more strongly. If the litigant's words create evidence of his own trustworthiness, then in the end we seek to decide the law on the basis of the credibility of his words. But the Torah imposed on him an intrinsic disqualification, meaning that the litigant's words are not to serve as testimony generating clarification and evidence; the litigant is only a party to litigation and nothing more (this is 'separation of authorities'). If so, clearly additional evidence about his trustworthiness as a person will not help us, unless the evidence directly clarifies reality itself.[11]

Let us now bring an illustration from aggadic literature. In Bava Metzia 59b, R. Eliezer and R. Yehoshua disputed over the oven of Aknai. As is known, R. Eliezer would say only things he had heard from his teacher, and R. Yehoshua disagreed and argued that one must persuade him by reasoning about the issue itself, not about the speaker. R. Eliezer brought proofs from the collapse of the study-hall walls and from the stream of water, which prove that he is righteous—that is, proofs about the person of the speaker. These proofs show that R. Eliezer is righteous and a Torah scholar, and therefore Heaven agrees with him. But R. Yehoshua stands and demands proofs regarding the issue itself, directly about the law of impurity of the oven. The reason is that he agrees from the outset that R. Eliezer is righteous and wise, but contends that this is not what is needed to decide Jewish law. What is required is not the reliability of the person, but good reasoning that persuades the dissenter, and that is what decides the law. Therefore he does not accept proofs about the speaker, but asks for proofs about the issue itself.[12]

Let us conclude this subsection with a case that is perhaps an example of the second type: evidence created by the litigant that is evidence about reality itself (not about the person, as with Moses and Aaron). Above we mentioned a case where the issue is whether so-and-so is mute, and his speaking is evidence about reality. Here we will bring a more common general case: definite and uncertain claims.

As is known, the later authorities (and in fact already the medieval authorities) disputed whether, when one party makes a definite claim and the other an uncertain claim, the superiority of the definite claim stems from a flaw in the uncertain one (or an advantage in the definite one), or whether this is merely a rule within the law of claims (that a definite claim is preferable to an uncertain claim).[13] According to the view that the definite claim is superior because it clarifies reality (and not as a rule within the law of claims), one must ask what that superiority accomplishes. On that side, when we lack other evidence and there is no possession status (for when there is possession, the Amoraim dispute whether the definite claim is superior, and practically we rule that it is not), reality is clarified by the words of the litigant. In such a situation, the one making the definite claim is more believable to us as clarifying reality than the one making the uncertain claim.

But according to our path, there would seem to be a problem here.[14] How can we accept evidence generated by the litigant's words, when he is intrinsically disqualified? What good is the evidence generated by the uncertain claim, given that his disqualification is not because of suspicion of lying but because of the intrinsic disqualification decreed by the Torah?

We are thus compelled to conclude that for those commentators who understand the superiority of a definite over an uncertain claim as a kind of evidence, this is evidence of the second type. Here no evidence is produced regarding the speaker's trustworthiness, but rather regarding reality itself. Evidence of this kind can indeed be accepted even from a litigant.[15]

The explanation is that when two parties present definite and uncertain claims, the superiority of the definite claimant is not because this proves he speaks the truth. The simple assumption is that in such a case both parties are speaking truthfully, except that the uncertain claimant is not sure of reality and does not know it, and therefore makes an uncertain claim. The definite claimant knows reality, and therefore we accept it from him. If so, from the outset both are assumed to speak the truth, and we are not looking for evidence of their trustworthiness but only evidence about reality. In that situation it is certainly possible to bring evidence in favor of one side, even though he is a litigant. Put differently: a situation in which one party makes a definite claim and the other an uncertain claim itself indicates clarification of reality. It does not emerge from the content of the definite claimant's words, but from the very fact that he makes a definite claim. It does not show that he is speaking the truth; it shows something about reality itself.

Those who disagree may disqualify the definite claimant even in such a case, because in the end the clarification of reality is still based on the content of his words. If so, 'fathers are still put to death here by sons' testimony.' But perhaps they disagree only because in their view no evidence at all emerges from a definite claim (or at least not enough evidence) to overcome the uncertain claimant.

Migu and a litigant's admission

We can now move on to examine the evidence of migu. First, one should note that the uniqueness of migu as evidence is that it does not deal with the facts themselves at all. The evidence points to the speaker's trustworthiness, not to the correctness of his claims. The rationale underlying migu is that if he were lying, he would have made a better claim. That proves that the person is not lying, meaning that he is trustworthy. The evidence regarding the facts is generated only indirectly. In this respect it resembles what is called today 'character evidence,' which proves to the court that a person is trustworthy, without dealing directly with the content of his words.

Put differently: the evidence generated by migu shows that the litigant thinks this is the truth and from his perspective he is speaking truthfully, but not necessarily that it is in fact true. The evidence about reality itself is generated from the fact that this is what the litigant said, and that is precisely what we cannot accept, since he is intrinsically disqualified.

When a litigant wants to clarify the facts for us, he is a witness intrinsically disqualified in his person. For such a witness, evidence of his trustworthiness (the first type above) is of no help, because his disqualification as a clarifier of facts is not due to lack of trustworthiness, exactly as with Moses and Aaron. The fact that he is trustworthy was already known to us beforehand. As we saw from Ritva's responsum, the litigant's role is not to clarify the facts for us, and therefore we do not accept his words as testimony in court; but from the outset we have no problem with his trustworthiness. Yet for that very reason evidence about his trustworthiness, which only helps us clarify the facts from his mouth, should not help to accept the testimony of a litigant. The problem with a litigant is that when he seeks to clarify facts he oversteps his role in court, not that he is untrustworthy. This is similar to what we saw with regard to related witnesses. Therefore evidence about the person of the litigant does not help, just as evidence about the persons of related witnesses does not help.

If so, migu cannot help a litigant at all insofar as it is evidence. It is evidence about the trustworthiness of the litigant, but that was never the reason for his disqualification. He is disqualified intrinsically, not because of lack of trustworthiness, and therefore migu does not help him.[16]

To conclude this chapter, and sharpen the point, let us now take a further similar example. The clearest procedure in which a litigant's words are given evidentiary weight is the litigant's admission.[17]

At first glance, an admission is excellent evidence. What better proof could there be than a person's self-incrimination? (This too is a kind of migu, and a very strong one.) But, as is known, Ketzot HaHoshen and Mahari ben Lev dispute (see Ketzot HaHoshen sec. 34) whether this is proof or rather an undertaking and gift. Why not assume that it is straightforward evidence, as simple reasoning would suggest? At first glance this is exactly like migu: a discussion begins about power of claim despite the obvious rationale that this is clarification or inference.

To understand this, one must note that admission resembles migu (and the inference regarding relatives and Moses and Aaron) at this point; we noted above that in practice admission is itself a form of migu. First, it too is evidence that emerges from the words of a litigant, who is a disqualified witness. In addition, not only does it emerge from his words, but the essence of the evidence is that it is evidence about the litigant's trustworthiness, not direct evidence about the facts themselves. In other words, it is evidence of the first type we saw above.

But as we saw above, evidence for clarifying reality cannot be accepted from the litigant himself, since he is disqualified from testimony intrinsically. Therefore evidence of a type that supports the litigant's trustworthiness cannot help us at all. In the end it is forbidden to judge by his words, and not because he is untrustworthy. So what good is additional evidence of his trustworthiness?

Indeed, with a litigant's admission as well, it seems obvious that the admission does not work by creating credibility equal to one hundred witnesses. The simple proof is that when he prejudices others by his admission, he is not believed (even if he prejudices himself along with them, so that the evidence of his trustworthiness—the migu—would still exist). Therefore there too it cannot be mere credibility, but some sort of power. And according to our claim, this is so for exactly the same reasons that migu too must be interpreted as a kind of power rather than inference. The problem is that this is evidence about the litigant himself, and that cannot qualify testimony that is invalid by intrinsic disqualification.

Indeed, as is known, Mahari ben Lev wrote that this is akin to a gift and an undertaking, not credibility. Anyone who examines his words there (as cited in Ketzot HaHoshen) will see that the reason is exactly what we have said here: this cannot be evidence, because evidence about the person is ineffective where the witness is the litigant.

However, if his intent were literally that a litigant's admission works by force of undertaking or gift, that would be untenable and contradicted by many sugyot, as many later authorities noted, and this is not the place. Therefore it seems clear to me that his intent is to say that the fact that he can undertake an obligation and give away his property enables him to be believed in his claim. In other words, he does not mean that a litigant's admission is itself a gift or an undertaking. He means only that it is not clarification, but 'power of claim' or 'power of credibility.' A person has power of credibility because he has the power actually to perform the thing in question. It is akin to the law of 'it is in his power.'

And even according to Ketzot HaHoshen, who wrote that a litigant's admission is credibility, it seems clear that he does not mean ordinary credibility based on the rationale of self-incrimination. For by that rationale he should also be believed when prejudicing others. It therefore appears that he means there is a special novelty of the Torah here (by force of the verse 'because this is it') that grants a person credibility regarding himself. This is also clear from his wording there.

Indeed, at the end of his discussion there, Ketzot HaHoshen remains in doubt as to why, according to this, we say that a litigant's admission is better than one hundred witnesses. According to our explanation of Mahari ben Lev, this is very well understood, since the matter is in his power to do, and therefore by reasoning he has credibility equal to one hundred witnesses.

Accordingly it is also clear why he is not believed to prejudice others. He lacks the power to harm them, and therefore he was not given 'power of claim,' and consequently he is not believed.

If so, a litigant's admission is exactly like migu (and like the presumption of the trustworthiness of Moses and Aaron). It is evidence that emerges from a litigant (a disqualified witness) and proves something about the person rather than about the facts, and therefore it seeks to lead us to decide the law on the basis of a disqualified witness, which the Torah forbade. Hence none of this helps.

For exactly this reason, we do not accept such proofs as ordinary evidence, despite the fact that there is reasoning behind them (at least in some cases: prejudice to others, or 'absolute' migu), and this is precisely what generates discussion of 'power of claim' in all these cases.

More than that: a litigant's admission is an example of the relationship between power and credibility. The rationale for the credibility is itself also based on power of claim (at least according to Mahari ben Lev). There is a connection between these two aspects, and below we will see that the same is true of migu.

We now have an additional general reason, a second one, why the law of migu does not function like simple evidence (inference). Above we saw that it does not constitute evidence (as in the objection of the Illui of Meitch), and now we have seen that even if it does constitute evidence, and even good evidence (unlike a migu involving brazenness), it is still evidence that cannot be accepted from the mouth of a litigant.

All this teaches us the necessity of saying that migu contains another law, one based on 'power' rather than simple credibility (inference). We must clarify how the mechanism of power works in migu. We must also clarify why migu is needed in law in the first place. For if the litigant's role is not to clarify the facts, and therefore a migu attesting to the reliability of his testimony does not help, then the problem before us is not the trustworthiness of the testimony at all, but its admissibility. The conclusion is that if migu is required from a litigant and can help him, that can only be in order to solve problems of another type, as we shall see below.

This also raises the question of how to understand those places where migu does operate as inference. As we saw, an inference is altogether irrelevant if it supports the trustworthiness of an intrinsically disqualified person, namely the litigant. If so, how can there be a migu that is only inference (like the migu of Rashba in Kiddushin and Tosafot in Ketubot, and the other examples we mentioned above)?

In the next chapter we will try to clarify the mode of operation of migu as 'power of claim,' and in that context examine why migu is needed at all and why it works. We will see different scenarios in which migu is required for different reasons, and therefore also works by different mechanisms, and at times even as inference. We will see that the mechanism of 'power' in migu is very similar to the mechanism of 'power' we saw in a litigant's admission.

Migu as 'power of claim' and as inference: an illustration from the case in Mishnah Ketubot

At the beginning of chapter 2 of Ketubot, the following case appears (see Ketubot 18a for parallel cases):

And Rabbi Yehoshua agrees that if one says to his fellow, '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. But if there are witnesses that it belonged to his father and he says, 'I bought it from him,' he is not believed.

Now this is formally a case of 'the mouth that prohibited' (or a migu of 'it never happened'), and not necessarily of migu, and it is already known that the medieval authorities disputed whether 'the mouth that prohibited' is a type of migu or not. But for simplicity we will focus on Rashi's view there (see Tosafot, s.v. UModeh, 17b), who explains that only when he admits on his own initiative is it considered 'the mouth that prohibited'; if the other party sues him in that very case, then it is ordinary migu. So let us think of a case where the other party sues him, and therefore his claim creates evidence that is ordinary migu, not 'the mouth that prohibited.'

First, one should note that this is clearly a migu involving brazenness. It is plainly more comfortable to say, 'It belonged to your father and I bought it from him,' than to say, 'It never happened' (or 'It was yours and I bought it from you'). The reason is that those claims involve brazenness before the person who knows the truth. But beyond that, they involve real risk: if he attributes it to the plaintiff's father, the plaintiff may think he is telling the truth and give up rather than seek evidence against him; whereas if he brazenly lies to the plaintiff's face, the plaintiff knows he is lying and will trouble himself to seek proof and refute him. Thus there is both brazenness and risk here, and therefore the alternative claim is not more comfortable; at first glance the inference of 'why would he lie?' does not exist in such a case.[18]

We must first examine why the assistance of migu is needed at all in this case. At first glance this is total denial, as with the claim 'it never happened' itself, and therefore he should prevail even without migu. In such a case, seemingly, the defendant need bring no evidence at all. Why then is migu needed?

In fact, this question is general. According to most medieval views, migu does not help to extract from a possessor, only to retain possession. If so, this is a case where the other party is not the possessor—he is. If so, it is not clear why the one invoking migu needs migu at all in order to retain possession, rather than it sufficing that he totally denies the claim and thus prevails simply because he is the possessor.

A preliminary conclusion is that in every case we discuss we must first examine why migu is needed at all. The answers differ from case to case, but there are two main types of answer:

1. There is a situation in which, according to his own claim, the other party can demand evidence from him.
2. There is a flaw in his claim. The claim itself is implausible. For example, where he claims that he repaid before the due date.

In our case there is a litigant's admission that the land belonged to the plaintiff's father, and thus an admission that the father was the prior possessor.

If the plaintiff's father were an actual prior possessor, and the present holder claimed he had bought it from him, clearly that claim would not help (this is the second clause of the Mishnah in Ketubot). The reason: with land, the prior possessor is stronger than the current holder. If so, once the defendant admits that the plaintiff's father was the prior possessor, the situation is as if it is known that the father is the prior possessor (for a litigant's admission is like one hundred witnesses), and therefore the burden of proof is on the current holder: he seeks to extract from the prior possessor. That is why he must bring evidence for his words even though he totally denies the claim. Our situation is therefore of type 1: his claim creates a situation in which evidence is required from him rather than from the plaintiff. Note that there is no flaw in his claim. The claim that he bought it from the plaintiff's father is not a weak claim, for people do buy land from others. There is nothing suspicious here. The problem is not a flaw in the claim (as in type 2), but only that the claim creates a situation in which he is not really the possessor, and therefore the burden of proof shifts to him. This is a type-1 situation.

If the issue here is 'the mouth that prohibited,' the simple understanding is that the mouth that prohibited—meaning, the mouth that created the presumption of prior possession for the plaintiff's father—can contradict, qualify, or interpret its own words. If so, 'the mouth that prohibited' simply prevents the creation of the presumption of the prior possessor, and therefore there is again no need to bring evidence.

But according to Rashi (and so too seems implied by the Tosefta, Bava Metzia 1:6), this applies only if the present holder initiated matters and said that the land belonged to the father. When he is not initiating but responding to a lawsuit, there is no law of 'the mouth that prohibited.' In that case, the admission strengthens the plaintiff and creates the presumption of the father's prior possession. Such an admission cannot be altered, interpreted, or qualified, for it is not 'the mouth that prohibited.' It is accepted as full clarification.

If so, his admission has created a situation in which the current holder must bring evidence for his claim against the prior possessor. That is why migu is needed here.[19] And indeed here migu comes and supplies the required clarification in order to extract from the prior possessor. In other words, 'the mouth that prohibited' prevents the creation of the presumption of the prior possessor, but when this is not a case of 'the mouth that prohibited,' that presumption is created, and the migu extracts from him in favor of the current possessor.

We should note that according to this description it follows that migu extracts from the prior possessor in favor of the current possessor. Accordingly, even if there were two other witnesses that the father was the prior possessor, if the current possessor had a migu he could extract from the prior possessor. There is nothing unique about the fact that he himself is the source of the information that the plaintiff's father is the prior possessor.

This is really how we see the operation of migu as inference: on the one hand, the claim he actually makes is itself worse than the other claim, and therefore it creates the very situation in which the burden of proof falls on him. But this is a bond with its release written alongside it: the weakness in the present claim, which created the need for proof, is itself what also creates the inference (= the migu, 'why would he lie?') that solves the problem, that is, provides the inference required because of that weakness.

Of course, if there are witnesses against the present claim (for example, if when you claim you bought it you were actually in America), then migu will not help. Migu helps only where evidence is required in the formal sense, such as against the presumption of the prior possessor.

In light of what we said above, we must ask ourselves: what good is the evidence in migu? After all, this is evidence about the person of the litigant, who is a witness intrinsically disqualified in his person.

The answer is that the current holder prevails by virtue of his possession. There is indeed a problem in his claim, because it creates a situation in which the plaintiff is the prior possessor, and therefore the burden of proof is on him. If the problem had been that there was a flaw in his claim itself, that is, that it was an inferior claim (type 2), then migu as inference would operate by shoring up the claim and removing its flaw. In truth, the current holder does not prevail by virtue of the evidence he brought, but by virtue of possession. Yet in order to prevail by possession he must make a claim, and his claim is weak and does not count as a claim sufficient to permit victory. Here migu helps as power of claim, because it brings evidence that sets the claim on its feet (removes its flaw), not evidence that extracts the money (or the land) itself. If so, migu in truth cannot serve as evidence extracting money, or clarifying reality in court. It only removes weaknesses from inferior claims, and thereby enables victory by virtue of possession.

This means that migu is never evidence that clarifies reality for the court. Migu enables one to prevail by claims instead of prevailing by evidence (that is, by clarification of reality). Above we saw that prevailing by claims does not mean prevailing because of the claims, but that the claims enable one to prevail by virtue of possession.

This explains well why migu can help as inference. It does not prove that the litigant speaks the truth and thereby clarify reality in court. It only sets the litigant's claim on its feet and removes flaws from it.

All this could apply here if the case of the Mishnah in Ketubot were indeed a type-2 case, where the problem requiring migu is a flaw in the claim. But as we saw, the case here differs in two respects:

• The problem here is of type 1: there is no flaw in the claim, but rather the claim creates a situation in which the burden of proof lies on him. If so, here the migu would have to work differently: it would have to constitute real evidence, evidence extracting from the prior possessor. But that cannot be, since migu is evidence about the person or credibility of the litigant, and that helps in no way to extract money.
• The migu here is a migu involving brazenness, and therefore it cannot help as evidence to extract from the prior possessor. Here only migu as 'power of claim' can work.

For these two reasons we are now compelled to explain the operation of migu as power of claim, and to see how it solves the problem in the Mishnah in Ketubot, which is a type-1 problem.

Migu as 'power of claim'[20]

Several approaches arise in the later authorities for understanding this law:

1. The ability to win by the alternative claim gives him power to win also by the present claim ('something like electricity'; see above). This is an arbitrary rule: if I could win with some claim, then it does not matter what claim I actually make. There is disregard of what he actually claims, since he could have won the money. This seems to be how the beginning of Mishpetei HaMigu understands it.

This understanding is very difficult. First, what is the rationale? Second, we saw that there is a problem which led to the need for migu in the first place. We saw that the present claim requires evidence (for otherwise we would not use migu, but simply say he is believed, as any total denier). If there is no evidence, the flaw remains in place. That is, the weakness of the claim created a burden of proof on the defendant. Yet he has not brought the evidence demanded of him. If so, how does he win by force of migu?

1. The possibility of making the alternative claim reveals something to me. No power is transferred from claim to claim; rather there is a revelation of the matter. Since by the alternative claim he could have won, that reveals something about the present situation, and on that basis he wins by the present claim.

What does it reveal?

Let us examine what the problem was, and then we can see how it is solved. In our case, the problem is that a person stands opposite a prior possessor, and in such a situation he cannot simply claim that he bought the property from him.

When I say migu as power of claim, it actually operates against that very situation. If there were witnesses that the other party is the prior possessor, then the burden of proof would indeed be on me. But if I can win by claim alone (had I claimed 'it never happened,' which is the possible claim at the basis of the migu), then that is a sign that I am facing a prior possessor against whom I need not bring evidence, and bare claims suffice for me to win.

One should note that in this Mishnah the person is not required to bring evidence because his claim is implausible. It is entirely plausible to buy land from someone, and therefore his claim is plausible. The problem here is of type 1: there is another prior possessor, and therefore, despite the plausibility of his claim, he is required to bring evidence. It is the superiority of the prior possessor that obligates the other party to bring evidence, not the implausibility of his claim.

But in such a situation the current holder argues that the prior possessor is not really superior, and therefore it is not correct that the burden of proof lies on him. For the plaintiff's force is not stronger than his own, since the defendant could have won from him by claim alone and without any evidence. If the issue is whose force is greater, the answer is that the defendant's force is greater. He could have won the money without any evidence, by claim alone.

The explanation we are proposing for migu as 'power of claim' is that the possibility of migu proves that the prior possessor standing opposite me is not actually superior to me. He has nothing absolute and independent—nothing that comes with him in hand (such as witnesses that he is the prior possessor) so as to require me to bring evidence. For if I can overcome him without any evidence, by claims alone, then his force is not greater than mine. If so, just as his status as prior possessor would allow him to prevail without evidence because his force is superior, in this situation the very fact that I could have prevailed by claims alone shows that my force is superior, and therefore I specifically am entitled to prevail even without bringing evidence. The burden of proof remains on him.

It is important to note that here we are dealing with a type-1 case. There is nothing problematic about the claims as such. The claims are plausible, and the question is not who is factually right. The problem being addressed is who has the superior force, such that he should prevail without evidence. Put differently: who can win even without opening a fact-finding proceeding? In this case, the party with the superior force—the one who can prevail without bringing evidence, by bare claims alone—is not the prior possessor but the current holder (before the litigation began, he could have prevailed with the alternative claim that he did not in fact make). This is migu as 'power of claim,' which leaves him in the superior position in type-1 situations.

In summary, migu as 'power of claim' means that if I could have said 'it never happened' and won by claim alone without any evidence, then I am not regarded as the extracting party. The migu is proof to the court that I am the superior party, and therefore the burden of proof should be imposed on the plaintiff even though I admit in my own words that he is the prior possessor. The plaintiff here is the factual prior possessor, but without the power to prevail by claims. He will have to bring evidence in order to prevail, because here the prior possessor lacks the power to win.

According to our approach, the alternative claim does not transfer power to the claim actually made. Rather, it reveals the true and independent balance of power between the parties. These are the starting conditions of the litigation. In such situations the migu does not constitute evidence; it is an argument showing that one should not demand evidence from me. By force of migu, I deserve to be believed on bare claims, like any total denier, possessor, or prior possessor—despite the fact that here the other party is specifically the prior possessor. Therefore, as long as the other party has not brought evidence, I will prevail as possessor based on claims alone.

If they come to demand proofs from me because I stand opposite a prior possessor, I answer: why call him a prior possessor? He is not superior to me in any way, since I could have prevailed against him by bare claims alone. Why place the burden of proof on me?

An important note: in fact this is not really a conceptual explanation of migu as power of claim. What we have done here is remove the rationale of possession or of prior possession by means of migu (or perhaps: overcome the rationale of possession and prior possession). To be sure, the rationale of possession itself is also not so clear,[21] but migu operates on the same plane: the plane of the power to prevail by claims alone. In any case, it is clear that in such a situation the one with the migu is the one who can prevail, not the prior possessor. Therefore the rationale for why the prior possessor should prevail is not important here. If there is any rationale that the existence of a prior possessor requires bringing evidence because the force is in his hands, then that very rationale says that in our case the defendant specifically has the status that requires the other party to bring evidence. The power granted him by migu overcomes the power granted by the status of prior possessor, and therefore the burden of proof remains on the plaintiff.

Two formulations of this principle:

1. Migu as power of claim allows me to stand in a position that requires the other side, despite his being the prior possessor, to bring evidence. It gives rights to prevail in law by a bare claim. In other words, it cancels the superiority of the prior possessor or of the possessor.

His status as prior possessor is a fact. But his presumption as prior possessor obligates me to bring evidence only if he is in an absolute and independent state of prior possession, not if he became the prior possessor on the basis of my claims.

1. When there is a confrontation between a current possessor and a prior possessor, the question is: which of us is the possessor who can require the other to bring evidence? Ordinarily the prior possessor is the possessor, but migu as power of claim turns me into the possessor; that is, it cancels the possession-status of the prior possessor. Thus he is indeed the prior possessor, but not the possessor in the juridical sense. If I could have claimed that he is not the prior possessor, then his presumption as prior possessor does not turn him into the possessor. The reason is that possession is a baseline from which anyone seeking to alter it is treated as the claimant and bears the burden of proof. But if his possession-status was built by me, and I could have refrained from creating it, then it is not an absolute point existing before the litigation. It is a product of the litigation itself, and therefore it does not generate possession-status. Something is possessed in a certain state only if that state is stable, independent, and prior to the litigation.

Put differently: only one who is known before the litigation as a possessor is a possessor capable of requiring the other to bring evidence, for the meaning of possession is that we allow him to prevail without opening the litigation. But here he is the prior possessor only by virtue of claims raised within the litigation itself. That is possession-status created after the litigation has begun, and therefore it does not require the present holder to bring evidence.

A possessor whose whole status depends on what I say is not a possessor, and cannot cause the court to demand evidence from me. The principle of migu means that my alternative claim proves that his possession-status is not an independent datum.[22]

In another formulation: the one who initiates the litigation is the plaintiff, not the defendant; therefore the plaintiff must go to the doctor, despite the fact that he is the prior possessor. Without the opening of the litigation he was not known as the prior possessor at all, and therefore, despite being the prior possessor, he is considered the one who is stirring up the case.

These two formulations are nearly the same. Both say that it is the prior possessor and not the current holder who stirs up the litigation, and therefore he is the 'sick' one who must go to the doctor. The difference is this: either the alternative claim gives me the right to prevail by bare claims despite the presumption of prior possession; or the alternative claim prevents the very creation of possession-status for the prior possessor. There is a difference between them where possession-status is not at issue. The first formulation is more general. The second apparently appears in Kehillot Ya'akov on Bava Metzia sec. 3.

The conception of possession and the presumption of the prior possessor assumed here

The basic assumption proposed here is a shift in the law of the prior possessor and of possession. As is known, the author of Kuntres HaSefekot discussed whether the presumption of the prior possessor is a prior-status presumption or a monetary possession-status regarding land. A prior-status presumption is a legal rule that we assume the factual and legal state remains as it was until we have evidence that it changed. Possession-status is unrelated to assumptions about reality. It is a rule determining on whom the burden of proof lies.

If the prior possessor were a prior-status presumption, it would seem less reasonable to say what we are saying here, because it is now known with certainty that the father was the prior possessor, and the assumption is that this remains the state until evidence is brought otherwise. In that case the current holder really would have to bring evidence against the prior possessor in order to alter that presumption. But here we propose to view this on the plane of possession-status (and certainly with movables that is the case according to all views).

Our claim here is that the possession-status determining which party must bring evidence is not determined by the true state of affairs (for that is the very meaning of a prior-status presumption), but by our assessment of who would have prevailed by claim alone, without litigation.

The explanation is simple. The rule is that absent evidence, we follow the possessor. What does that mean? We tried to change the power-based situation (in which one prevails by claims alone) by clarifying reality through court proceedings, which one party initiates in an attempt to change the initial state—the possessed state. When that attempt fails, we return to adjudication by claims. If so, we must cancel all the implications of the fact that litigation occurred at all. Hence, possession-status created through the litigation is also cancelled, and we return to the prior state: everything remains as if there had been no court proceeding at all.

But we already saw in earlier chapters that prevailing by claims does not mean that the claim is accepted as evidence or as factual clarification, since it is spoken by a litigant, who is a disqualified witness. The victory comes from the force-based status (of which the sign—but not the cause—is the basic ability of that party to prevail by bare claims alone before the litigation began), while as a side condition a reasonable claim is still required.[23] In such a situation we treat matters as if the litigation had never been opened, and the situation reverts to what it was before they opened their mouths and said anything within the proceeding. But in such a state the current holder wins, because the prior possessor was not known at all before the litigation. Therefore the prior possessor here has no force of possession.

See at the beginning of Mishpetei HaMigu, where he distinguishes between a defendant and a possessor. It seems that his intent resembles what we distinguished here between two types of possessor, but this is not the place.

In practice, the conclusion from what we have said is that migu belongs not to the law of evidence but to Hilkhot To'en VeNit'an. Migu determines power relations and possession-statuses; it is not evidence and does not give force to claims within the proceeding. By contrast, migu as inference ('why would he lie?') specifically gives force to claims (as we saw above, even there it is not evidence by which one wins the litigation).

A source from Maimonides, beginning of chapter 6 of Hilkhot To'en VeNit'an

Maimonides' wording there shows that migu is not merely another rule, or additional evidence within the law of evidence. As we have seen, evidence cannot help qualify testimony intrinsically invalid. Migu is the basic mode of halakhic treatment of the litigant.

Maimonides states there that the litigant must specify his claims. The reason: perhaps he himself is mistaken and does not understand clearly enough (as in a case of mistaken perception). In other words, the concern is not that he is a liar, but perhaps that he is mistaken; see Maimonides there for the various examples. In truth, the litigant's words have no direct connection to the court's final conclusions. They only need to state his version of the facts, as part of the claim accompanying his demand, and it is for the court to decide the reality and the law: whether he is liable or not.

Maimonides then adds that even if one of the parties is wise, the court persuades him not to fear losing by stating everything, because in every case we judge on the basis of what he could have claimed.[24]

It is not entirely clear from Maimonides' wording whether the litigant is fundamentally obligated to specify his claims, since in the end there is no obvious reason why he should have to specify them (for we have no reason to suspect that he is mistaken).

Why does that wise person not want to elaborate further in court? He apparently fears that some loss will result from it. The judges reassure him, yet he still fears. It is unclear why the judge needs to reassure him. His fear of losing from this is not justified. If he is wise and tells the truth, then clearly he is truly exempt. So why is he afraid?

It is quite clear that Maimonides means a case where that wise man knows he acted in a way that exempts him according to the law, but nevertheless he has no evidence for it. For example, he repaid a debt without witnesses. If he tells all the details, he will be required to bring evidence, because it is known that there was a debt and it is not known that he repaid. But if he speaks generally and does not specify, it is clear that he will not be required to bring evidence, because he is then a total denier.

For example, in our case in Ketubot, if he answers the plaintiff truthfully, then they will require evidence from him, since the plaintiff's father was the prior possessor, even though the truth is that he really bought it from him. If he has no witnesses that he bought the field, he will lose unjustly. But if he does not specify, then the court knows nothing, and that person is simply a total denier and will win the case (truly and justly, since the field is really his, because he really bought it). In such a case there is no reason to assume there was a father of the plaintiff who was the prior possessor, and therefore they clearly will not require the wise defendant to bring evidence for his words.

This is the fear of that wise person in Maimonides' law. He is saying to the court that they are effectively trying to entangle him: they are forcing him either to lie or to tell the truth and lose. He therefore asks the court not to extract from him details that entangle him, especially since there is no suspicion that he is lying (only that he may be mistaken, and even that concern exists only for an ordinary person). He asks to be allowed to make a general claim without elaboration, and to be believed like any total denier.[25]

So far we have dealt with cases where the claims are plausible (type 1), and the burden of proof on one side stems only from considerations of relative power. By contrast, suppose that wise person wants to tell a story that is implausible in itself—for example, that he repaid before the due date. Here they will not believe him that it happened, because it is not plausible. Here the obligation to bring evidence does not stem from considerations of power but from the implausibility of his claim.

Or suppose he does not want to specify because there are witnesses against his claim, and he personally thinks or knows that they are liars. Therefore he wishes not to specify, and thus not to have to confront the witnesses.

At first glance, in both of these latter examples too he is afraid and does not want to specify his claims, because that will entangle him and he will be required to bring evidence, although the truth is that he did repay before the due date, or that the witnesses are lying. If so, this would seem the same as the previous case.

But in these last two examples, despite the obvious fear, he has no justification for concealing his claims. If the concealment is because the claims are implausible, then it is not justified to conceal them. Clearly the court will not take his desire to conceal information into account, nor offer him protection in such a situation. Concealing information in such cases interferes with the court's function; it is not justified and reasonable self-protection. Here the court will not offer protection that would enable him to make implausible claims (for the court does not know who is right, and therefore it obviously will not offer protection to one who appears to be lying or in the wrong). Protection is given only to one whose problem stems from external, formal considerations, such as considerations of power (possession, presumption of prior possession, and the like), not to one trying to avoid bringing evidence for claims that are in fact implausible.

In situations where the imposition of the burden of proof is due only to procedural considerations (and not to implausibility), there the defendant may ask the court for protection, and only then does the court offer it. As stated, the presumption of the prior possessor is a formal rule allocating the burden of proof. Why should the court force him to establish that the other party has the presumption of the prior possessor, which will formally require him to bring evidence he does not have and thus lose the case?

In such a case, that wise defendant turns to the court and says that the court should determine, from its external and independent point of view—before the details of his claims are revealed, that is, before the litigation is opened—which party must bring evidence. He says to them: do not force me to establish an unreal situation that will obligate me to bring evidence, when at present a different formal situation prevails. The formality is not truly important, for it has no real substance, so long as it is preserved.

In truth, in our case the plaintiff arrives with nothing. There is nothing at all in his favor, and there is no situation requiring me to bring evidence. Thus the situation at the opening of the case is that I have the power, and the burden of proof needed even to open the litigation lies on the plaintiff. Now the court wants to force the wise man to create a situation that gives the plaintiff something in hand that he did not previously possess. They are not asking him to reveal a substantive truth, but a formal truth that will create a situation imposing the burden of proof on himself.

That is a justified reason for the wise defendant to want to hide information and suffice with general claims without detail, so as not to become ensnared. For that information (whether the land belonged to the plaintiff's father) is not relevant to the substantive clarification of the truth. By contrast, hiding implausible claims is not justified (even if he is truly in the right).

What does Maimonides answer that wise man?

One could understand the court as answering that this is a bond whose cancellation is written beside it. Migu is a wonder-drug, as though by coincidence every time someone becomes entangled in this way, the weakness created by the inferior and complicated claim itself creates the evidence that solves that weakness. That is precisely the mechanism of inference we saw above.

But it appears from Maimonides that he means more than that. Migu is not a technical solution, as if by happy chance every problem comes attached to its own remedy. Maimonides means that migu constitutes acceptance of that wise person's justified claim. That is precisely the meaning of the court's words to him. Migu means that the court tells that wise man: we will not use the formal information you give us against you on the plane of power relations. The elaboration will not harm you, and your power-status will not change because of it. This is precisely the principle of migu as 'power of claim.'

The wise man wants the court to judge according to what it knows of the power relations before he states his claims. And that is exactly what the court will do. That is what they answer him, and that is the foundation of migu as 'power of claim.'

Ordinarily, requiring the litigant to specify his claims means narrowing the directions of inquiry the court must investigate. A general claim, for example, that he owes the plaintiff nothing, can be interpreted in very many ways. In such a situation the court would have to investigate all the possibilities, and that greatly burdens it. According to this approach, the court would seemingly be telling that person to tell it what to investigate, while promising that he will not be harmed by helping the court work more efficiently. But in Maimonides the picture is the exact opposite. The elaboration does not harm because even if there is elaboration, we will assess the situation in light of all the claims you could have made; we will not narrow the field.

Of course, all this is only where the concealment is fair, and where the court's use of the information is fair. Concealing substantive information, or the court's using irrelevant information to determine status, will not occur. That wise man wants to be his own lawyer, and remains silent so as not to become entangled. The court tells him that it itself will, as it were, be his lawyer. It will examine all the possibilities and choose the best one for him. But clearly the court will not allow a person to conceal information because it is implausible, or to lie, and thereby lead the court to an incorrect decision from the court's own perspective (even if in reality that would be the correct decision—for example, that he repaid before the due date).

We can now see a clear proof for our view. Immediately afterwards Maimonides presents a case where a person did specify his claims and nevertheless became entangled, contrary to the promise the court makes every litigant that 'in every place we judge from what he could have claimed.' There was a suit over a loan, and the defendant claimed that it never happened. Then witnesses came that there had been a loan, and the defendant retracted and said: I borrowed and repaid. Maimonides rules that he has been established as a liar. But if he had said vaguely, 'I am not liable,' without specifying (and had not said 'it never happened'), then even if witnesses later came, he would be exempt. The reason is that his claim that he borrowed and repaid is consistent with the general claim that he is not liable.

If so, there would seemingly be a case here where a person loses because he specified. That stands in contradiction to Maimonides' statement that the judges tell him he will not lose by specifying his claims, and this is said in the very same halakhah. At first glance the defendant can now protest to the court that its forcing him to specify his claims is what caused him the loss.

But this is not so, and Maimonides' words in this halakhah fit perfectly. For here the court did not force him to tell lies. Had he used general language and blurred the matter, perhaps he might have escaped (perhaps by lying). But the court will not give him a pass because he may turn out to be a liar. As we saw, the right to conceal exists only where the information concerns his status of possession, which is a formal matter. But if the concealment prevents proof against him, or prevents the emergence of weaknesses by reasoning (not formal weaknesses—for example, repayment before the due date), that is unjustified concealment, and therefore when the court requires him to specify, it will not protect him.

Thus the protection afforded him, and even the 'right to remain silent,' are just and proper, and part of the law itself—not merely a rabbinic rule designed to ensure that he will be willing to specify his claims in court. The line of law itself says that in deciding the case we follow the balance of power that existed when the litigation opened, not what was clarified in the course of it, as explained above.

Interim summary: the two kinds of migu

Migu as 'power of claim' is not a transfer of force from one claim to another. It is a revelation regarding the balance of power in the given situation—namely, that it is not what it first appears to be, and does not match the factual reality (the actual prior possessor is not the one with the power). In this way it produces victory by claims without the need to bring evidence.[26]

In light of what has been said here, we must examine the application of migu. We noted at the start of the lecture that perhaps both mechanisms of migu can appear, except that this changes from case to case. To diagnose this, we must examine two aspects:

• What is the need for migu in the case at hand: a power-status (possession and balance of power), or the implausibility of the claim (type 1 or type 2, as above). Accordingly, what kind of migu is needed to solve the problem present here.
• Whether in the case at hand an actual inference is indeed generated, and whether an actual 'power of claim' or 'power of credibility' is generated (that is, whether the alternative claim teaches something about the balance of power between the parties).

First we must examine the need for migu. If the need is due to the implausibility of the claim, then it seems that power of claim will not help, because in order to win by virtue of possession he must accompany that possession with a claim. The claim he now makes is weak, and therefore, for his possession to help, he must bring evidence for that claim so that it be considered possession accompanied by a claim. Here it is clear that the possibility of winning by a different claim is of no help, because it addresses only the balance of power (possession), not the substantiation of the claim. Therefore in such a case only migu as inference can help.

Indeed, in Bava Batra 5b, where they discuss migu against the presumption that a person does not repay before the due date, the expression used is 'why would he lie?' The reason is that here the inference within migu is what is needed, and migu as power will not help. Everywhere that the inference within migu is needed, the Talmud speaks in the language of 'why would he lie?' The expression 'migu' sometimes points (perhaps not always) to power of claim rather than inference, and therefore it is not the fitting expression in such a case.[27]

By contrast, migu as power of claim serves to assist in a type-1 situation, where there is no substantive problem with the claim itself, but only a formal-legal duty to bring evidence. The power of claim removes the need to bring evidence. Put differently: power of claim does not improve the status of the present claim itself; it only removes the need to bring evidence for it. It can improve only my preliminary status before I make my claim, not the claim itself. Inference does the opposite, because it supports implausible claims and serves as possible evidence for such claims. Therefore, if there is a possessor standing against me, it will not help, because migu does not extract from a possessor. As we saw above, migu certainly does not turn a litigant intrinsically disqualified into a witness; and from a clear possessor only testimony can extract. An inferential migu can work when it stands against something weaker than possession (such as the implausibility of a claim—for example, the presumption against repayment before the due date).

It should be noted that although migu as power of claim helps only where the need for evidence is formal, nevertheless in such a case inferential migu could in principle also help. The inference can itself serve as the evidence answering the need for evidence present here (see the discussion of the Mishnah in Ketubot). In such a case both faces of migu can help. This depends on the situation and on the various opinions concerning how strong an evidence it must be for him to win money in such a case.

The sugya of bending down and whispering: implications of this understanding for migu as 'power of claim'

Let us discuss very briefly the dispute between Rabbah and R. Yosef in Bava Batra 32b regarding a forged deed. The Gemara there tells of a man who came before Rabbah and claimed land from someone who was holding it with a deed. The holder claimed the deed was genuine and that he had bought the land, and then bent down and whispered to Rabbah that in truth the deed was forged, but he had another genuine deed that was lost. Rabbah says that in such a case migu helps him retain the land, because 'why would he lie?' R. Yosef argues that one cannot rely on this deed, because it is merely a shard of clay.

In light of what we said above, it seems that first we must ask: what is the problem? Why does the holder need to bring migu here at all, seeing that he is the possessor of the land?

This is a case where there is testimony that the other party is the prior possessor, and therefore the holder really will not be believed without evidence. But the claim 'I bought it from you' is plausible,[28] and it is also entirely possible that a person might lose a deed. The reason migu is required here from the holder is a formal problem of burden of proof against a known prior possessor. As we saw, this is a type-1 situation: there is no flaw in his claim, only a formal problem requiring him to bring proof. If so, both migu as power, which cancels the burden of proof, and migu as inference, which itself is the proof brought in order to extract the money from the prior possessor (assuming that migu can extract from a prior possessor, as discussed above), could work here.

If one understands migu as power of claim in the usual way—as the transfer of credibility-power from one claim to another—then perhaps it could work here (the later authorities say that even according to this understanding the outcome here is still problematic). But if one understands it as we do, then it is clear that here there is no migu of power. For in this case it is obvious that the court does not promise him protection for the possibility of lying by means of a forged deed. Without the forged deed, the balance of power is against him here, since the other party is a known prior possessor. If so, from the standpoint of the true situation he has no possibility of prevailing by claims alone, and therefore the possession-status and superiority of the prior possessor are not cancelled.

His deceitful trick created a situation in which he appears to have evidence. That itself proves that in the present situation he really does need evidence in order to extract from the prior possessor, and in reality he has no true ability to win by claims alone. Thus the balance of power remains in favor of the prior possessor, and court protection is not due him at all in such a case. He has shown that he could have lied to the court—but what does that contribute as a matter of power of claim (unless one understands it as a transfer of power)? Will one grant someone the power to prevail because he is known to be a habitual liar, so that when he does not lie this itself creates a migu for him—not as inference, which perhaps could arise even there, but as power of claim, which is the court's protection of his ability to make a different claim, as we saw in Maimonides above?

In fact, this is a good practical difference between the two understandings of the mechanism of migu as power of claim. According to the view that it is a mechanism of transferring power from claim to claim, there might be room to say there is power of claim here. According to our view, this has no relevance at all.

Put differently: migu as power of claim is the ability (or the right) to prevail by claims in situations where the alternative ability to prevail is through claims alone. That grants me power to prevail by claims alone (without evidence) now as well. But if my ability to prevail lay through other means—and here, by means of a deed—then those means are indeed necessary for victory. How, then, could this give him the power to prevail without those means (that is, without the deed)? You, the holder, admit that you need evidence in order to prevail, and you also admit that you have no evidence. So how can you prevail?

Therefore according to Rabbah it is clear that only a migu of inference is present here (in addition to the earlier examples). This is why, as we saw, Rabbah's wording here is 'why would he lie' (as in Bava Batra 5).

By contrast, R. Yosef says this deed is merely a clay shard. We saw that according to all opinions there is certainly no power of claim here. As for the inference, either R. Yosef holds that migu as inference cannot extract from a prior possessor, or that an inference accumulated through lies is ineffective (the medieval authorities dispute this here, but this is not the place). Or perhaps he holds that migu is not an inference at all, but only power of claim (for example, because he relies on the fact that migu would otherwise generate its own inference, as in the objection of the Illui of Meitch). That would fit the approaches mentioned above, according to which the Amoraim dispute whether migu is power of claim or inference.

A reasoning somewhat like this appears in Beit HaLevi III, sec. 33, explaining why migu as power of credibility does not extract from a possessor. See there. This is close to Kehillot Ya'akov, Bava Metzia sec. 3.

The relation between migu and similar laws: definition and force

There are several laws similar to migu, especially in light of our explanation above. For example, 'the mouth that prohibited,' migu of 'he could have remained silent,' 'it is in his power,' a litigant's admission, and the like.

The principle of 'it is in his power' does not need the court at all in order to achieve the result, and therefore it grants the strongest kind of power.

As for 'the mouth that prohibited,' we already noted above that if it is different from migu (qualitatively and not only quantitatively), then it gives the claimant the right to interpret his own litigant-admission. In the example of the Mishnah in Ketubot, 'the mouth that prohibited' leads to a situation where, legally, that person is not the prior possessor at all. My admission that turned him into one comes together with its own 'release,' cancelling the significance of the admission itself. Consequently there is also no need to bring evidence, because the reason obligating me to do so has been nullified.

Migu as inference is itself the bringing of the required evidence (although there it is a migu involving brazenness, and therefore this probably is not the case there). But we also saw, in entirely general terms, that migu as 'why would he lie?,' as evidence to extract from a possessor, is fundamentally ineffective, because it is evidence about the person of the litigant as a witness clarifying reality from his mouth, and that is not what we do. Migu only strengthens weak claims (see also the next chapter).

Migu as power of claim, of course, differs from 'why would he lie?,' and therefore it can help in a case of extracting from a possessor by cancelling that possession-status. But according to this, it is not clear what the difference is between it and 'the mouth that prohibited.'

One might say that 'the mouth that prohibited' simply cancels possession-status more strongly. Its argument is more powerful, and therefore the litigant's relative force is greater, and he is more of a possessor. This is a matter of quantitative comparison. According to this, 'the mouth that prohibited' is simply a stronger migu, and indeed several commentators wrote this.

Or perhaps one could say that 'the mouth that prohibited' combines power of claim with evidence, and the evidence helps because it is a stronger kind of migu, while the power of claim fixes the background possession-status. According to this, the difference lies on the level of the quality of the evidence, not the strength of possession and power. This becomes relevant only in situations where both laws of migu are needed in order to prevail.

But it seems there is a more essential difference between them. Migu as power of claim does not cancel the prior possessor; it says only that he cannot become a possessor in the juridical sense. It cancels the power of the prior possessor, but not the fact that he is the prior possessor. The admission that he is the prior possessor remains fully valid, and therefore he truly becomes the prior possessor. Yet although he is the prior possessor, he does not receive the force of a possessor, because the power rests in the hands of the current holder, as explained above. By contrast, in the law of 'the mouth that prohibited' the admission itself ('it belonged to your father') is void insofar as it conflicts with the qualification ('and I bought it from him') that follows; consequently, for this purpose he never became the prior possessor at all.[29] Therefore it is clear that 'the mouth that prohibited' is stronger than ordinary migu as power of claim.

Another law is 'it is in his power.' There, the superiority of 'it is in his power' is based on the fact that the person can, with his own hands, create the situation to whose truth he testifies. Migu as power of claim, and even 'the mouth that prohibited,' are not that strong. They describe a situation where a person can cause the court to act, but he cannot act himself. For example, if the court considers the case 'fraudulent,' it will not act according to his wishes. 'The mouth that prohibited' and migu as power of claim are not at all guaranteed, and are not fully in his hands, and therefore they are weaker than 'it is in his power.'

It appears that this difference lies on the plane of power, not the plane of inference. The inference of 'it is in his power' (that if he wanted to lie he could have done it himself) stands on the same level as the inference of ordinary migu (and perhaps even less). Therefore the Rosh in the chapter Hazakah states that 'it is in his power' is a kind of 'ownership' over the matter—an expression of absolute power. He does not even need the court in order to carry out his will, and therefore he is an absolute owner. This is not the place to elaborate further.

If so, all of these are reasonings of power, not of inference. Here we already see first signs of a connection between these two aspects (power and inference), and we will discuss that further below.

Solving the previous problems: is migu part of the law of evidence, or of claims?

We have explained the principle of migu as power of claim in what has been said thus far. It is not a transfer of power, for that has neither rationale nor source (as Rabbi Breish noted in his approbation to Mishpetei HaMigu), but a determination of power relations. A person has a right to prevail by claim, and that is what power of claim grants him.

But even regarding migu as inference, one should note that now the problems we raised above are solved. We asked above whether there is any inference in migu, since he knows in advance that he will have a migu (when it is not an 'absolute' migu, as we defined above). If so, indeed his credibility is based on power, not on inferential reasoning; and power he has in all these cases, even in a migu involving brazenness.

Beyond that, we asked how an inference of this type, which proves the reliability of the speaker rather than the facts, could help where the speaker is a litigant intrinsically disqualified in his person. According to our explanation, this too is well resolved: when the situation is that his claim itself is implausible (a type-2 case), then migu can indeed serve as an inference whose role is to set the claim on its proper footing. Migu is not an inference that extracts money; it is an inference that removes the flaw from the claim and allows him to prevail by virtue of possession (this is what 'prevailing by claims' means).

As we explained above, in such a case the victory is by claim, and prevailing by claim does not mean that the claim serves as an alternative factual clarification in place of evidence, but rather that the force-based status, which is stronger, determines the law (when the court has failed in its attempt to determine matters on the basis of evidence and factual clarification). We saw that a claim is indeed required in order for us to act on the basis of force-based status, but not because we trust its factual truthfulness, for a litigant cannot clarify facts. The claim is a side condition that allows one to prevail by virtue of his relative superiority in force.

If so, the inference of migu turns the claim into a good claim (removes its implausibility), and that is accomplished through ordinary inference. But in the end the victory here is not by force of the inference, for that only turns something that is not a claim into a claim, thereby satisfying the side condition. The victory itself (once the side condition is met) is only by force of the claimant's superior status. Therefore there is no acceptance here of an inference clarifying reality from the mouth of a litigant, and thus it works even for a litigant. That is how inferential migu works: it only helps one who has superior power to prevail by claims. Consequently there is no problem with what we asked: how can clarification concerning the person of the litigant help him if he is a disqualified witness?

We can now see that migu does not belong to the law of evidence, but neither does it necessarily belong to the law of claims. In fact, migu as inference belongs to the law of claims, not the law of evidence (for it is not evidence that helps a litigant, only reinforcement of a weak claim). It should be noted that above we also raised the possibility that migu as inference might itself be the evidence required when formal conditions place the power on the other side. In such a case the migu itself would be the evidence brought to extract from the possessor. We can now see that this is not plausible, because in such a case the migu is evidence extracting from a possessor, but as we saw, evidence concerning the person of a litigant cannot be accepted in court as evidence by which one wins. There is an intrinsic disqualification here, so what good is evidence of his trustworthiness? One could perhaps press back somewhat, but this is not the place.

In any event, migu as power of claim belongs to neither of these two categories—not to the law of claims and not to the law of evidence. It does not clarify reality and does not strengthen a shaky claim. Migu as power of claim is a law within the law of possession, or more broadly, within the court's ruling on the basis of the parties' relative power in the absence of evidence. This is so even after claims have been stated (that is, provided that the winning party has reasonable claims).

There is still some discussion to be had regarding the comparison between migu as power of claim and possession, for as a practical matter we rule that for a possessor an uncertain claim suffices in order to win, and a definite claim does not extract from a possessor who makes an uncertain claim. Yet in order to win by migu, a definite claim is required. Thus the well-known question: why should one making an uncertain claim not win with a migu that he could have made a definite claim? The usual answer is that this is not so, because he is indeed trusted only with respect to his present uncertain claim that perhaps he is correct. Consequently he cannot win by full clarification of reality. According to our explanation, however, the difficulty remains: from the standpoint of inference he is believed only with respect to the uncertain claim, but from the standpoint of power of claim he also becomes a possessor, because he could have prevailed by bare claim (through a definite one). If that makes him a possessor, he should win here too, since for a possessor an uncertain claim suffices.

One can distinguish, however, that in the ordinary possessor case there is also the presumption that whatever is in a person's hand is his, whereas migu as power of claim is equivalent only to possession without that presumption. According to this, an uncertain claim really does not help against a definite claim if the one making the uncertain claim does not also have the presumption that what is in a person's hand is his. One can make further distinctions, but this is not the place.

Up to this point we have dealt mainly with solving the second problem in migu as inference (how it helps a litigant who is intrinsically disqualified). There remains the first problem in inferential migu, namely that of the Illui of Meitch. We noted that, in light of this problem, one might say that any migu that is not 'absolute,' and therefore no longer exists once we have accepted the law of migu, cannot operate as inference, only as power of claim. But according to the views of many medieval and later authorities, that will not do. They understand migu as inference even in non-'absolute' migu situations, especially where power of claim cannot help and only inference can operate and help. The question is whether migu as inference can indeed be understood that way.

Migu as inference

The question before us is that accepting the principle of migu cancels it, as the Illui of Meitch objected in sec. 65.[30] He himself answered there in a way similar to the Ran on Bava Metzia 30a regarding the red heifer (a kind of 'returning wheel'):[31] if we cancel the law of migu, then the inference returns, because the alternative claim again becomes better. Then once again the evidence of migu is nullified, and so on ad infinitum. Since there is no way to stop this 'circle,' we leave the money with the possessor (and therefore migu does not help to extract, only to retain).

But his words seem very difficult, from several angles.

A. First, it is not clear from his words how we can rely on evidence concerning the person of the litigant in order to qualify his testimony, since he is intrinsically disqualified. But this was explained above: when migu operates as inference, we are dealing with a case where there is possession accompanied by a weak claim (such as repayment before the due date). The migu here only strengthens the claim; the victory itself is by virtue of his superior status as possessor. In other words, the Meitcheter's answer of the 'returning wheel' concerns only the strengthening of the claim and its establishment as reasonable, not an actual clarification serving as evidence to the court of the factual reality.

B. But if that is indeed so, then it seems difficult to accept the Meitcheter's answer. As said, he explained that this 'wheel' produces a state of doubt, and therefore we leave the money in its prior state. But according to our analysis, the doubt is not about the money but about the quality of the claim accompanying the possession. That is, there is doubt whether possession works in such a case, since it is not accompanied by a good claim, or whether the migu establishes it as good possession that entitles him to prevail. In such a doubt, it would seem, questions of possession of money or extracting from a possessor are irrelevant.

Perhaps one could nevertheless say that the doubt creates an uncertain claim, and as a practical matter we rule that a possessor prevails even with an uncertain claim (we do not say that a definite claim extracts), for an uncertain claim is still a claim, and therefore better than no claim at all. If so, possession indeed helps him prevail in doubt even here. To be sure, the possession does not decide that the claim is good; rather, an uncertain claim suffices to prevail. But this is not what the Meitcheter's wording suggests.

One might note that something strange may emerge here. In cases where migu also serves as power of claim, creating possession for him (because he can prevail by claim alone), and once he has possession he can prevail with a doubtful claim, which is also created by the migu (for here we are dealing with a case where without migu the claim is weak and does not permit him to win). That is, the possession that comes by force of the migu assists the claim, and the claim that comes by force of the migu builds and strengthens the possession. This itself is not a 'returning wheel' like the one the Meitcheter set out to explain, for here we are dealing with the two distinct laws within migu, which now appear to operate together in such cases where both inference and power of claim are needed.

C. This also explains what still remains to be asked: why is this doubt better than mere possession without any claim? Here we are dealing with a case where the claim he makes has a flaw, and therefore migu as inference is needed to strengthen his claim so that he can then prevail by virtue of possession. But if we are left with doubt, then in effect we are not using migu at all, only possession, since it is only possession that now supports the claim. But we are dealing with a case where possession by itself is insufficient without migu (for example, a claim of repayment before the due date, which creates a flaw in his claim).

According to our explanation above, however, perhaps his words can be understood: the inference here supports only the claim, and does not serve as evidence by which he wins the case (winning by claims comes from possession, not from the evidentiary force of migu). If so, we have doubt about the claim, but in addition there is possession. This is a case where there is doubt whether he has a claim or not, and that is better than a case where there is a real flaw in the claim, which is like having no claim at all. This is a practical implication of our understanding of migu as inference here (namely, as an inference strengthening claims, not evidence given to the court about reality itself).

D. Yet the Meitcheter's words are difficult in themselves. For even if we decide in favor of the possessor because of doubt, in the end he now wins the money according to law, even if only as a matter of doubt, and therefore the present claim is now better, so again there is no migu at all. If so, his explanation seemingly does not solve the problem. In another formulation: even winning out of doubt creates a definite problem for the inference of migu.

Still, one may say that since we must decide somehow in cases of doubt, we choose the option in which there is migu because of the doubt, even if the basic problem is not resolved. We have no clear way to decide here. Yet conceptually one might have expected the opposite: where the migu itself is not certain, there should be no migu, because doubtful evidence is not evidence (perhaps this depends on whether migu as inference is evidence, or merely support for a claim while the victory itself comes from possession, as explained above).

E. The Meitcheter's approach implies that whenever we face such a 'returning wheel,' we must stop it in a way that leaves no migu. In every case where, for any reason, we have a rule that migu is not said, specifically then the inferential force of migu is created. For example, in the case of migu for half a claim, where a person claims two things and has a migu that he could have won one of them by a different and better claim. If we say there is no migu for half a claim, that very ruling creates a strong inference of migu, because the alternative claim is much stronger. But if we say there is migu for half a claim, then in the present claim too he wins that half, and then the other claim is no better. Consequently the inference of migu is not generated at all.

As we saw at the beginning of the lecture, Rashbam (Bava Batra 33b, s.v. VeHadrei Peirei) and his school hold that there is migu for half a claim, and he is believed only regarding the half for which he has a migu. But according to Rabbenu Yonah (33a, s.v. Alah BeYadeinu) and his school, one does not split credibility, and there is no migu at all in such a case. According to these views we are in a state of 'returning wheel,' exactly like the Meitcheter's migu. According to his reasoning, one would seemingly have to rule that we leave everything in the possessor's hands—that the possessor should win both items by force of this migu.

Yet among the medieval authorities there is no one at all who says this. As noted, some medieval authorities hold that he wins only the item with respect to which he has migu, and this apparently follows the logic of power of claim. But among the authorities unwilling to split the claim (Rabbenu Yonah), the practical ruling is that there is no migu at all in such a case. Note that even those who hold there is migu for half a claim (Rashbam) do not necessarily agree with the Illui of Meitch, for they do not say the situation is doubtful; they split the claim, and thus the 'wheel' is not created at all. It is likely that they are in fact using migu as power of claim here rather than inference, and on the plane of inference they too reject the Meitcheter's reasoning.

F. The words of the Illui of Meitch do not help according to the medieval authorities who hold that migu is said even to extract (see Nachmanides on Bava Batra 32b, and the Rema in Shulchan Arukh, Choshen Mishpat sec. 82:12, and more). Most likely these authorities hold that migu is power of claim (or that extraction by migu is only in scenarios where the migu also contains power of claim), and therefore the possessor is not really the possessor: the one with the migu is treated as the party with the power, and therefore he is the possessor here (somewhat like what we saw regarding extraction from a prior possessor in the Mishnah of Ketubot).

G. My dear son, Nahman Shmuel, may he live and be well, further noted that the Meitcheter is very difficult from the case of migu 'from worse to less worse,' cited by Tosafot, s.v. Rav Assi, Ketubot 13a, and Rashba in Kiddushin 50a (cited in Gilyonei HaShas there). According to the Meitcheter, such a migu should not help there, because there too he would not have won even had he made the alternative claim, since that too is a poor claim that does not succeed. If so, according to the Meitcheter, why did those medieval authorities write that migu helps in such a case?

The law of migu and the law of a 'fraudulent' case

There is another possibility for understanding migu as inference, and it is based on the law of a 'fraudulent' case. In monetary law, we rule that one adjudicates on the basis of inference (at least fundamentally; see Maimonides, Hilkhot Sanhedrin, beginning of chapter 24, and Kovetz Shiurim II, sec. 38, and more). And even nowadays there remains the law of 'fraudulent' cases, which allows at least withdrawal (see the Tur and Shulchan Arukh, Choshen Mishpat sec. 15:3). If so, in the end the court must decide what the truth is, and whether the testimony is admissible, and then rule accordingly.

If so, there may be a case in which the court decides not to accept a migu because it appears 'fraudulent.' It follows that even in practical law, acceptance of migu is not guaranteed in advance. Thus, when a litigant comes to court, he does not know in advance whether the court will accept his migu argument, for that depends on how credible he appears to the court. Therefore in every case it is still preferable for the litigant to take the objectively better course, and not risk having his weaker claim rejected despite migu because he appears fraudulent. The other claim is better independently of the court's view, and therefore it is always preferable.[32]

Consequently the superiority of the 'safer' claim remains even after we recognize the law of migu. It follows that the law of a 'fraudulent' case, which allows the court to adopt or reject the migu, answers the Meitcheter's question on two levels: first, it allows us to take the Illui of Meitch's argument into account in cases where we sense that the litigant is using migu in a fraudulent fashion. Second, the law of 'fraudulent' cases creates a situation in which migu really is good evidence, for there is always a possibility that the court will not accept the weaker claim despite the migu. In practice, then, migu is always good evidence, regardless of what the court ultimately decides to do, simply because there is a possibility that it will not accept the migu.

But that itself returns the Meitcheter's difficulty to its place, for by force of this very argument it is again clear that one can win by means of migu. Therefore the court must also preserve in practice the right, in certain cases, not to accept migu. Yet ordinarily this state of affairs makes migu good evidence.

According to this, the law of migu is not an instruction to the court, but only a possible recommendation. The court will decide whether to follow it according to the case. But, as we noted, so too with respect to all laws of evidence in monetary matters, for in monetary matters the court in practice judges by inference. Migu is exceptional in that the settled halakhah itself (credibility on the basis of migu) depends on the possibility of violating it—namely, not accepting the migu—according to the judges' discretion.

Nowadays, however, when we no longer judge on the basis of inference even in monetary law (see Maimonides, Hilkhot Sanhedrin 24:1-2), it is difficult to see how the law of migu can function.[33] It is very plausible that the law of migu remains of this sort even today—that it can be accepted or rejected according to the judges' discretion. Evidence for this is the whole collection of migu rules (many dozens of them) that qualify the use of this principle. In practice, therefore, one can always avoid using this principle because of some doubt within the laws of migu. According to our approach, all these rules in effect establish generally that whenever the use of migu appears problematic, the court may decline to accept it. That is exactly our point. We do not find a similar proliferation of rules regarding the various presumptions, certainly not to this extent.

We should emphasize that according to this last possibility there is no reliance on the general rule that in all monetary law inference suffices; rather, even nowadays when we do not rule on the basis of inference, this is the very nature of migu. The explanation is precisely because, as we saw above, migu concerns the reliability of the litigant, and therefore it remains a matter for the judge's discretion.[34]

In any case, it is difficult what to do with migu in matters of prohibition, where there is no rule of adjudication by inference (see Maimonides, Hilkhot Sanhedrin, beginning of chapter 20). As for the law of a 'fraudulent' case, however, it seems simple that it applies also in matters of prohibition, at least to allow withdrawal from adjudicating. Perhaps this explains the law of migu as we find it also in matters of prohibition (in the first two chapters of Ketubot it appears often regarding matters of personal status). Especially in light of what we said above—that part of the very laws of migu is the possibility of not accepting the migu—it follows that here there is a special law making everything depend on judicial inference, and that itself constitutes the evidentiary law of migu. Therefore it applies also in matters of prohibition, for this is not the ordinary law of 'fraudulent' cases or a general discussion of inference; it is part of the very laws of migu.[35]

A new explanation[36]

On further reflection, it seems that the Illui of Meitch's question is incorrect, and there is no difficulty at all. Reuven sues Shimon, and Shimon makes claim A while having a migu that he could have won with the better claim B. The Illui of Meitch asks that if there is migu, then claim B is no longer better than claim A. Let us now think about what happens if the court does not accept the reasoning of migu as 'why would he lie?,' that is, if one who makes claim A will not be believed. What will a liar do? He will of course make claim B, and with it he will win. If so, either way—whether there is migu or not—we have no way to deal with a liar. He can always lie and win. We must therefore take into account only truth-speakers, who indeed may sometimes lie in order to win (especially when they seek to win money that truly belongs to them, as we saw above in Maimonides, beginning of chapter 6 of Hilkhot To'en VeNit'an). Here it is clear that we should accept the argument of migu, that is, believe one who makes claim A; for if there is no migu in court, that may cause him to lie and make claim B in order to win. We are in effect telling him: if A is indeed the truth, say the truth, and we will give you the force of claim B. That will cause him to tell the truth and not lie. If we decide there is no migu, we will not thereby save ourselves from any liar; we will only cause truth-speakers sometimes to lie. Therefore the correct decision is to stop the wheel at the point where there is migu. This is in fact exactly what Maimonides says at the beginning of chapter 6 of Hilkhot To'en VeNit'an. He explains there that we judge on the basis of what he could have claimed in order to enable people not to lie and yet not lose.

In other words, there is no logic in denying A the very force of B. Not more force than B, to be sure—but why should it have less, given that Shimon really can lie and claim B and win? Therefore even if he knows that there is migu in court, he can still lie and make claim B, and thus it is preferable to believe him on the basis of migu.

At first glance the Illui of Meitch's question would force us to conclude that migu is power of claim (for then his objection does not arise). But now we can see that the logic of 'why would he lie?' connects with the logic of power of claim. The logic of 'why would he lie?' says that we should give him the force of claim B.

Below we will suggest another direction as well, which explains migu as inference specifically in light of understanding migu as power of claim. Before that, we will briefly discuss migu for witnesses.

Why there is no migu for witnesses, only for litigants

Migu as power of claim seemingly has no relevance whatsoever to witnesses, since they do not make claims but only constitute evidence. But according to our analysis, even migu as inference has no relevance to witnesses. As we saw, migu rescues claims; it does not truly bring an inference about factual reality. If so, even migu as inference (= 'why would he lie?') belongs to the law of claims and not to the law of evidence. And it is obvious that witnesses do not make claims—only litigants do. It follows that migu, whether as inference or as power of claim, is altogether irrelevant to witnesses, and only relevant to litigants.[37]

Accordingly, the view of the medieval authorities (see Nachmanides, Kiddushin 64, Ketubot 19b, and Ra'ah in Shitah Mekubetzet there)[38] who hold that we do not say migu for witnesses is clear. But how are we to understand the view of most medieval authorities, who hold that migu does help witnesses, at least in principle?

It seems that all the discussion above assumed that migu does not operate as a factual inference because such an inference does not help a litigant who is intrinsically disqualified. Therefore we concluded that even the inference in migu is not an inference serving as evidence to the court about reality itself, but only rescues the claim and enables possession to grant him victory by claims alone. But with witnesses there is no such problem at all. Witnesses can certainly serve as a basis for factual evidence, because that is their very role in the court. If so, with respect to them there is no obstacle to viewing migu as qualifying the person (if they need it, and if it can help, as the later authorities discuss at length in the sugyot of two against two and more). A defect in witnesses which creates a need for migu can be solved by bringing the evidentiary force of migu. Regarding witnesses, it is clear that if we have evidence that they speak the truth (evidence about the persons of the speakers), then that is also indirect evidence about the facts, and therefore it can work.[39]

In any event, it follows that regarding witnesses, migu yields only inference, not power of claim. To be sure, one might have said that migu for witnesses grants power of claim—or possession-status—to the litigant himself. But here that depends on the witnesses, and the power is not in his hand alone. That is like a migu whose force lies in the court's acting in accordance with it, unlike 'it is in his power,' where all the power is in his hand and he can do everything by himself without depending on anyone, not even on the court. See distinctions of this sort in the earlier chapter on the relation between migu and similar laws; there is no room to elaborate here.

Further applications in understanding migu: migu involving brazenness, migu to exempt from an oath, and more

In the course of our discussion we have already seen several implications of our understanding of the law of migu. We illustrated this in the sugya of the Mishnah in Ketubot, in the sugya of bending down and whispering in Bava Batra, and in the law of migu for half a claim. In this chapter we will suggest several additional applications of these principles in other cases: migu involving brazenness, migu to exempt from an oath, and more.

One of the clearest cases of migu as 'power of claim' is migu involving brazenness. We mentioned what the later authorities wrote—that in a migu involving brazenness there is only power of claim, whereas the clarification of migu (the inference of 'why would he lie?') does not exist in such a case. On that basis Kovetz Shiurim (II, sec. 3, subsecs. 22-23) and Kehillot Ya'akov on Bava Metzia sec. 3, and other later authorities, explained that with regard to exemption from an oath such a migu does not help, because he has been assigned the burden of bringing evidence in place of the oath, and in a migu involving brazenness there is no evidence. But in monetary law it does help, as is evident from the case of those goats that ate the field produce (Bava Batra 36), and from the sugya in Ketubot above (see Tosafot, s.v. Eruv Parshiyot, Bava Kamma 107).

Now above we saw that our analysis implies that when a person makes a claim for which he has a migu involving brazenness, this cannot help him where there is a flaw in his claim; it can help only where his possession is insufficient to let him prevail (a lack of force). According to the standard understanding of migu as 'power of claim' (the 'electricity' model), credibility passes from claim to claim, and therefore it helps even where the present claim has a flaw. On that understanding, migu as 'power of claim' operates very similarly to inferential migu ('why would he lie?'), except that it grants credibility even where the inference is absent. Therefore, according to that view, a migu involving brazenness—which has only power of claim—should help even where there is a flaw in his claim. But according to our position, migu as 'power of claim' is essentially different from inferential migu: it grants not 'credibility' but 'power' to the claim (like possession). By means of this distinction in understanding migu as 'power of claim,' many difficulties can be resolved—both regarding migu involving brazenness and regarding migu for money versus oath, and more. Here we will only demonstrate this briefly.

There is an apparent contradiction in the Rosh at the beginning of the chapter Kol HaNishba'in, where he challenges R. Yosef ibn Migash, who holds that migu (ordinary migu, not only migu involving brazenness) does not exempt from an oath at all. The Rosh's argument is: what difference is there between money and oath? Afterwards the Rosh himself writes there that ordinary migu does help exempt from an oath just as it helps with money (for that reason), yet nevertheless migu involving brazenness does not help exempt from an oath (his proof being that no bailee is exempt from an oath on a claim of uncontrollable accident by virtue of a migu that he could have said 'I returned it'). Kehillot Ya'akov there asked, in light of what we saw above—that migu involving brazenness helps with money—why the Rosh's own question does not return against him: what difference is there between money and oath?

According to our approach, however, the Rosh's words are well understood. For a bailee, or the case of the goats that ate produce, are two situations where there is no flaw in the claim, and only a formal oath is required. But where the plaintiff comes with evidence in hand, or where there is a flaw in the defendant's claim, there migu involving brazenness does not help, because it contains only power of claim, and that does not help where the claim has defects. Therefore such a migu will also not help to exempt from an oath, for there the bringing of evidence is required, as stated above.

We emphasize that according to the standard 'electricity' understanding there is no room to distinguish in this way, and therefore the question of Kehillot Ya'akov against the Rosh is very difficult. This is indeed what seems to follow from the language of Kovetz Shiurim in several places, where he apparently means the usual understanding, and therefore speaks of 'power of credibility' rather than 'power of claim.' But Kehillot Ya'akov himself answers his difficulty in precisely the way we proposed here, and for that reason we noted above that his position apparently follows our understanding of migu as power of claim (that it belongs to the law of possession rather than the 'electricity' model: 'power of claim' rather than 'power of credibility').

We may further note that according to our view there is room to distinguish among different oaths. Perhaps migu involving brazenness would exempt from the oath of hesset, since that oath was instituted even where there is no problem at all with his claims and no real need to bring evidence. True, by rabbinic enactment the possession-status of a total denier is not sufficient, and they therefore imposed the oath of hesset; but in any event it is clear that the problem there is only one of possession-status, not a flaw in the claim. In such a case it seems reasonable that migu involving brazenness could help, as explained above. One could nevertheless reject this by saying that the rabbis structured their enactment like other oaths—as a requirement to bring evidence—and therefore migu involving brazenness does not help.

With other oaths, one might at first think that migu involving brazenness should help, since in Torah oaths there is generally a problem of possession-status rather than a flaw in the claim (even the oath of one who admits part, which exists because of the concern that he does not wish to be brazen to his creditor, see Bava Metzia 3b, is based not on an inferior claim in this case but on a general concern).[40] According to our explanation, such a migu should exempt from every oath—which is unlike the view of most medieval authorities, who hold that we do not say migu to exempt from an oath. But this is not so, because with an oath the obligation is to bring evidence, and therefore migu involving brazenness does not help, since it contains no evidence. True, that obligation may not be based on a flaw in the claim, but that is still the structure of the obligation: there is a duty to bring evidence, and therefore migu involving brazenness does not help.

Let us now discuss the oath triggered by one witness. As is known, the medieval and later authorities disputed whether migu helps to exempt from the oath of one witness. See, for example, the dispute between the Shakh and the Mabit (cited in Shakh, Choshen Mishpat sec. 75, subsec. 12; see also Kovetz Shiurim II, later in sec. 3, subsec. 3). The Shakh discusses a case where the plaintiff says, 'You owe me one maneh,' and the other responds, 'I do not know whether I borrowed,' and then one witness comes and obligates him to swear. The Shakh writes there that although he has a migu that he could have said 'I repaid you,' he is a person unable to swear, and since he cannot swear he must pay. The Mabit, as cited there, disagrees and rules that this is only if the witness testifies that he still did not repay (in which case he has no migu at all), but otherwise he is exempt. Kovetz Shiurim explains there that the dispute is that the Mabit holds the migu makes it so that there is no oath-obligation at all, for had he denied the witness he would have been believed without an oath. That follows the understanding that migu is power of claim (in his language: 'power of credibility'). The Shakh holds that the migu constitutes bringing evidence in place of the evidence that the oath would have supplied; and when he says 'I do not know,' that evidentiary force is ineffective (as in an uncertain claim; compare our discussion above).[41]

Now in Kovetz Shiurim there, subsec. 1, he cites the Gemara in Bava Batra 5, which doubts whether where one sues after the due date and the other claims he paid within the due date, we say migu (in the Gemara's language there: 'why would he lie?') against a presumption. Tosafot there asks from the case of the yevamah who said within thirty days 'I was not cohabited with,' and is believed, whereas after thirty days she is not believed, because of the presumption that a man does not leave his wife untouched for more than thirty days. Tosafot asks: why is she not believed, since she has a migu that she could say 'he is unable to have intercourse with me'?

In Shakh sec. 82, an answer is offered by means of the following distinction: if she claims 'he is unable to have intercourse with me,' she is believed only by force of a presumption (that a woman is not brazen before her husband), not by force of the claim itself. If so, the migu cannot give the present claim more force than the alternative one, and in the alternative claim she would not have been believed if there were a presumption against her. By contrast, in a case of repayment after the due date he would have been believed by force of the claim itself and would not have required an additional presumption, and therefore there the migu can help.

Kovetz Shiurim there cites in the name of R. Moshe Atlas, his father-in-law, that from these words of the Shakh it is proved that he understands migu as 'power of credibility,' not as inference ('why would he lie?'), because for an inference it makes no difference at all by virtue of what he would have won with the alternative claim. In the end, if he could have won, he has a migu, and therefore he also has the force to win by the claim he makes now.[42]

Kovetz Shiurim agrees there with his father-in-law's explanation of the Shakh, but immediately raises two objections. First, even in the claim 'I repaid after the due date' he is believed because there is no presumption against him, but now there is a presumption against him, so why should he have more force now than he had with the alternative claim? Second, he notes an apparent contradiction with the Shakh's position cited above in his dispute with the Mabit (regarding exemption from the oath of one witness), where it is clear that the Shakh views migu as the inference of 'why would he lie?,' not power of claim. We can add a third objection from the language of the Gemara in Bava Batra, which speaks of 'why would he lie?' against a presumption; as we noted, this language indicates inference (and we also showed that in Bava Batra we must explain that the discussion concerns the inferential aspect of migu, not its power-of-claim aspect, for where there is a flaw in the claim—such as repayment within the due date—migu as power of claim does not help).

First, one must note that it is obvious from this Shakh that he understands migu as power of claim in the 'electricity' sense (= power of credibility). For according to our explanation above of migu as power of claim, even if with the other claim he would have won only by force of a presumption, still in the end he would have won, and therefore he is clearly treated as a possessor even now (he is the party with the power). If so, even according to the view that migu is power of claim, he should have won here, not only according to the view that migu is the inference of 'why would he lie?'. This also seems clear from our third objection, for the proof that the Gemara deals with inference rather than power of claim rests on the point that where there is a flaw in the claim, power of claim does not help, only inference. But we already noted at the beginning of this chapter that this distinction is true only according to our understanding of power of claim, not according to the 'electricity' model.

Perhaps, however, one could answer that the Shakh too agrees with our understanding of migu as power of claim, except that in his view the degree of force of the alternative claim determines the degree of force of the present claim, and therefore that too is the measure of his power to prevail now. According to such an approach, the power a person has does not derive merely from the fact that he could have won, but also depends on how strongly he would have won with the alternative claim.[43]

The correct explanation of the Shakh, however, seems to be that he holds that migu contains both laws. The law of inference is what the Gemara in Bava Batra is discussing when it asks about migu against a presumption, for where there is a presumption against him there is a flaw in his claim, and as we saw only inferential migu can help there. But together with that there is also a law of power of claim in migu. When Tosafot asks from the yevamah case against the sugya in Bava Batra, the Shakh resolves the difficulty on the plane of power of claim rather than on the plane of inference. In other words, in his view there is a difference in the power of claim, even though there is inference in both cases. In addition, the Shakh apparently understands that in order to deal with a presumption that weakens my claim, I need both laws of migu (and therefore, for example, a migu involving brazenness would not help there). This resolves the contradiction in the Shakh's words, and also explains the language of the Gemara in Bava Batra (the second and third objections above).

As for the first objection, the correct answer seems to be that the two situations are not comparable. In the yevamah case, the alternative claim ('he is unable to have intercourse with me') itself has a weakness, but she also has a supporting presumption in her favor. The present claim, however, has a weakness and no supporting presumption. In the sugya of Bava Batra (repayment within the due date), by contrast, the alternative claim (repayment after the due date) is not opposed by any presumption and he wins by force of the claim itself (as we explained, even migu as inference is still 'winning by claims,' not actual evidence), whereas the present claim is opposed by a presumption.

The reason the two situations cannot be compared is that even according to the Shakh, the understanding of migu as 'power of claim' is not that it is 'like electricity,' meaning that power passes over (and we explained above how that can fit within his words). If so, the power he receives to prevail by a claim without any external assistance grants him full power, and therefore he wins now as well. But when victory is achieved with the assistance of external evidence—which is itself evidence rather than power of claim—then the claim itself does not grant him self-standing power to win; and when there is a weakness against him, such that his claim is shaky and he needs power of claim, he lacks that power. Put differently: migu as power of claim gives me the power to prevail by claims alone. But victory with external assistance is victory by evidence, not by claims; and as we saw, external evidence cannot be brought to court through a litigant. The migu in the case of the yevamah tries to bring the court evidence (not power of victory) through the words of the litigant, and therefore it is ineffective. There is much more to say here, but this is not the place.

Migu as power of credibility: additional clarification

Years later I arrived at an additional clarification of the ordinary understanding of migu as 'power of credibility' (that of Kovetz Shiurim)—that it really is 'like electricity'—along with several proofs for this understanding (as against the understanding of 'power of claim' of Kehillot Ya'akov and R. Shimon Shkop). By way of introduction, consider the example of a lawyer defending his client and raising various defense claims on his behalf. Suppose the lawyer himself knows that one of the claims is false—does this forbid him from raising it? And if he knows the client is guilty, is it forbidden for him to defend him? The simple answer is that he can and should still defend him. The reason is that a lawyer's claims are not testimony and say nothing about reality. The lawyer merely raises claims in order to define the burden of proof resting on the prosecution. He is in effect saying to the prosecution that as long as it has not proven that claims A, B, C, and D are incorrect, it has not met its burden.

Above we cited Maimonides in chapter 6 of Hilkhot To'en VeNit'an, from whom it emerges that in migu the court itself serves, as it were, as the litigant's lawyer. That is, every claim that the litigant could raise and win with, the court raises for him (as is clear from Maimonides above, migu is a kind of pleading on his behalf). Thus, when the plaintiff produces a document and demands repayment of the loan, and the borrower says 'paid' with a migu that the document is forged, from the court's standpoint he has made the claim 'forged.' Although he himself explicitly admits that the document is not forged, the court tells the plaintiff that until he proves the document's validity he cannot prevail. The defendant's ability to claim forgery establishes an evidentiary threshold for the plaintiff, and he must meet it in order to win.[44]

This conception differs from 'power of claim.' 'Power of claim' basically gives the defendant the force of the alternative claim and turns him into a possessor because he could have won. Under 'power of credibility,' the defendant is viewed as if he actually made the alternative claim (even though in reality he admits it is not true). Let us now bring several proofs for such an understanding of migu, all from the chapter Hazakah in Bava Batra.

A. Rashbam in the sugya of bending down and whispering.[45] We already mentioned the sugya in Bava Batra where a man admits he forged a deed but argues that he had another deed which was lost. R. Yosef does not accept his claim; Rabbah does. In explaining R. Yosef's view, Rashbam writes there:

Why are you relying on this deed? For there is no two-year possession here, and this deed is nothing but a potsherd; and once he has admitted it, he has admitted it. This is not like the other cases of 'why would he lie?' in the Gemara, where both claims can be true—the one he makes and the one he could have made but did not make—and therefore we say migu. But here it is like 'why would he lie?' in the face of witnesses, for all his power and his possession in this land are only by means of this deed. How can we say 'why would he lie?' regarding this deed, that if he wished he could have said, 'It is a valid deed,' when he himself admits that the deed is invalid, and a litigant's admission is like one hundred witnesses? And if two witnesses had come and said it was invalid, then there would no longer be any 'why would he lie?'

He explains that this is like migu in the face of witnesses, because his admission is like one hundred witnesses that the deed is forged. His words are very puzzling. This is not a case of migu against witnesses. Migu against witnesses occurs when he makes claim A with a migu that he could have made claim B, and claim A is contradicted by witnesses. But if claim B is contradicted by witnesses, then there is no migu at all, because the witnesses prevent him from making B, so he has no migu. Moreover, how can one say that his admission collapses the migu, when that is itself his migu—that he could have continued to say the deed in his hand is valid and not admit? In every migu one could say that by making claim A he is now admitting that B is false. For example, in the migu of 'paid' with a migu that the document is forged, he is now admitting that the document is not forged. Would Rashbam say that this too is migu against witnesses? That would erase the very doctrine of migu from Jewish law. This is apparently the intent of the Rosh and Nachmanides, who reject Rashbam there.

In Kovetz Shiurim II, sec. 3, he cites these words of Rashbam and explains them as follows:

11) In the chapter Hazakah: a certain man said to another, 'What are you doing on this land?' He answered, 'I bought it from you, and here is the deed.' He said to him, 'It is a forged deed.' He bent down and whispered to Rabbah: 'Yes, it is forged, but I had a valid deed and it was lost.' Rabbah said: 'Why would he lie? If he wished, he could have said: It is a valid deed.' R. Yosef said to him: 'Why do you rely on this deed? This deed is merely a clay shard.' See Rashbam there, who explains R. Yosef's words; and Nachmanides already wrote in his novellae that Rashbam's words are unintelligible, and the Rosh likewise wondered at him.

12) According to what was explained above, one can perhaps explain Rashbam's view as follows: had he said 'it is a valid deed,' he would have won with the force of witnesses; but now we know that he has no witnesses at all, because the deed is forged. He only claims, 'I had a valid deed and it was lost.' If so, it is impossible to give him the power of credibility of the other claim he could have made—namely the force of witnesses—since in truth he has no witnesses at all. But all this only if we say that the reason for migu is the power of credibility of the alternative claim. If, however, we say that the reason for migu is that we are as witnesses ourselves, i.e. 'why would he lie?', then there is no basis for this distinction.

At first glance, his intent is that R. Yosef holds there is migu here as power of credibility, and this differs from the conception of migu as power of claim. Power of credibility means that the ability to make claim B now gives him, despite the fact that he makes claim A, the force of claim B.

According to this understanding, one who makes claim A with a migu that he could have made claim B is effectively treated as one who makes claim B. This allows us to understand Rashbam very well: when the holder claims that he had another deed which was lost, with a migu that he could have continued to present the deed in his hand as valid, he is effectively winning by virtue of the deed in his hand. We plead for him that the deed in his hand is valid and not forged (despite his own admission that this deed is forged). Hence the migu really supports the deed in his hand (not claim B in the sense of the claim that he had another deed and lost it), and therefore he wins by virtue of the deed in his hand. Accordingly, his admission that the deed is forged is indeed like witnesses against the migu. That is what R. Yosef argues according to Rashbam. This explains why the migu is indeed against the admission and is like migu against witnesses.

What does Rabbah hold? He can hold that such a migu is indeed accepted, for he has the power-of-claim that the deed is valid, and the fact that he himself admits the deed is forged should not matter, since this occurs in every migu (when he says 'paid,' he admits the document is not forged). The migu is that the holder could have refrained from admitting, and therefore he has a migu and it is not against witnesses. This is why Rabbah accepts the migu. So what does R. Yosef hold? According to this, every migu is against witnesses (for when he makes claim A he is admitting that B is false). It seems that R. Yosef does not accept this sort of migu because it is migu against witnesses, and therefore in his view migu contains no power of credibility, only the reasoning of 'why would he lie?'; but 'why would he lie?' does not extract from a possessor. The mechanism of power of credibility is always migu against witnesses.[46] This explains Rashbam's words that the migu here is against witnesses, but of course removes from the table this possible understanding of migu. Whenever we try to give a person power of credibility because of migu, it falls, because such a migu is against witnesses. Note that according to this there is no proof here for the mechanism of power of credibility, only an explanation of why it cannot operate.

An example appears at the end of the words of Kovetz Shiurim there, where he cites a dispute between Rashbam and Nachmanides:

And see Ketzot HaHoshen sec. 126, who cites the dispute between Rashbam and Nachmanides regarding one who says, 'I have sons,' who is believed to permit his wife to marry on the open market by force of a migu that, if he wished, he could have exempted her by a bill of divorce—whether she is thereby also permitted to a priest. Rashbam holds that she is forbidden to a priest, and that is because the law of migu works by the force of the other claim, and one cannot believe him now beyond the extent of the credibility he would have had with the other claim. Nachmanides holds that migu works because we are, as it were, witnesses that he is not lying, and one cannot split his credibility into halves. Each follows his own reasoning.

A man says, 'This is my son,' and then dies. The question is whether he is believed to exempt his wife from levirate marriage (because he has a son). The Gemara says he has a migu, because he could have divorced her and then she would not have been subject to levirate marriage. Rashbam argues that he is believed only to permit her to an Israelite without levirate marriage, not to a priest, because with respect to a priest the migu does not help: if he had divorced her, she would have been forbidden to a priest. Nachmanides holds that the migu helps even to permit her to a priest. The point of the dispute is that for Rashbam the migu is power of credibility, and therefore he has credibility only to the extent the migu gives it to him. Hence, for example, he is not believed that this is his son as a factual statement, but only with respect to permitting her without levirate marriage, because had he divorced her, the son would not thereby be established as his son; only she would have been permitted without levirate marriage. To permit her to a priest he has no migu, and therefore he is not believed. According to Nachmanides, there is indeed credibility here by force of migu, but the claim by which he wins is the actual claim he is making, namely that this is his son. That is exactly like our case: Rashbam holds that the migu works so that the woman is permitted as if she were divorced, meaning by force of the migu-claim (the one he could have made). He is treated as though he made claim B, 'I divorced her.' By contrast, Nachmanides holds that the woman is permitted by force of the true claim he makes (that she has a son). This is exactly like our case, where Rashbam holds that the holder wins by force of the forged deed as though it were valid (we plead for him that the deed is genuine), whereas according to Nachmanides and the Rosh, who question him, he wins by force of the other deed that he had and lost (the true claim), and he is believed on that claim by virtue of migu. Therefore according to Rashbam the migu is against witnesses, because there is a litigant's admission that the deed is forged. But they challenge Rashbam because according to their view the migu does not contradict the witnesses at all.

Until now we formulated power of credibility as meaning that one wins by force of the false claim he could have made rather than the claim he actually makes. A more accurate formulation is that the migu gives him credibility to the extent that the alternative claim would have given it. Thus he is believed by migu to win the land to the extent he would have been empowered by the forged deed were it valid. The woman is permitted to marry without levirate marriage to the extent the migu would have allowed this—namely, not to a priest. This is really the credibility of 'it is in his power' (see the Rosh later on 34, who explains that this is stronger than migu), like one who says 'your pure foods became impure,' who is believed because it is in his power to make them impure. Likewise Mahari ben Lev explains that a litigant's admission is by the law of a vow; we explained that his intent is that a litigant's admission yields credibility because it is in his power to vow.[47]

B. The view of Rivam regarding the ingot of Rabbi Abba.[48] In Bava Batra 33b, the Gemara presents Rabbi Abba's opinion that one who snatches an ingot and claims he snatched his own property is not believed if there is one witness to the snatching. In Shevuot 47 it is explained that Rav and Shmuel disagree with him; according to them the snatcher is believed. The Gemara there explains that the dispute turns on the law of 'since he is obligated to swear and cannot swear, he pays': he is obligated to swear because of the single witness, but cannot swear, because he himself agrees with the witness that he did snatch it, only claiming that he snatched what was his. Therefore according to Rabbi Abba he pays, and according to Rav and Shmuel he is exempt because they reject that rule.

In Tosafot, s.v. Havi, there on 34a, they discuss whether one can make him swear that he snatched his own property, and thereby create for him a migu that he could have said he did not snatch it (which would have required him to swear against the one witness who says he did). Note that at the beginning of Tosafot it is clear that this oath is not a Torah oath (the oath triggered by one witness), but a rabbinic oath meant to salvage the migu. R. Isaac's position in Tosafot is that such a migu is no migu, because it is brazenness to swear falsely against a witness who knows he is lying, and this is worse than ordinary migu involving brazenness. But Rivam later in the same Tosafot holds that such a migu is indeed a good migu. The question then arises: what exactly is the dispute between Rav and Shmuel on the one hand and Rabbi Abba on the other? As noted, in Shevuot it is clear that their dispute concerns the law of 'since,' and therefore it is unlikely that there is yet another dispute between them. Tosafot itself there assumes that no additional dispute is possible, and therefore asks against R. Isaac that if there is no migu, the view of Rav and Shmuel is unintelligible. They refuse to accept that Rav and Shmuel simply hold there is migu. How, then, does this dispute explain their position in the case of the ingot?

Rivam's view is described there as follows:

Therefore it seems, as Rivam explained, that this is certainly a migu, and that is why Rav and Shmuel exempt him: he is believed with an oath by virtue of the migu, since if he wished he could have said, 'I did not snatch it.' Rabbi Abba, however, holds that although he has a migu, he is still liable, because since there is one witness obligating him to take a Torah oath, the law is that he must swear in contradiction of the witness or else pay, and the migu does not help him to be exempt.

First, note that according to this, Tosafot now understands that the Amoraic dispute is indeed in a situation where the snatcher swears (that he snatched his own property). The question is whether to believe him. We also see in Rivam that the witness indeed obligates the snatcher to take a Torah oath, meaning that the oath that he snatched his own property is not a rabbinic oath (as implied by the beginning of Tosafot) but the one-witness Torah oath. According to Rivam there really is migu in such a case, for both Rav and Shmuel and Rabbi Abba alike (since, as noted, there can be no additional dispute between them other than the dispute about 'since'). If there is migu, then it is clear why Rav and Shmuel exempt the snatcher from returning the ingot he snatched: even if there were two witnesses to the snatching, if the snatcher had some migu he would be believed that he snatched his own property. The witnesses testify only that he snatched, not that it was not his. But what is Rabbi Abba's reasoning? From Tosafot's wording it would seem that according to Rabbi Abba the migu does not exempt him from the Torah oath imposed on him because of the single witness, and therefore he pays under the rule of 'since.'

We would have expected that according to Rav and Shmuel he is exempt from payment because they reject the rule of 'since.' But the language of Tosafot suggests that the snatcher is exempt because he has a migu, not because there is no rule of 'since.' Apparently according to them migu does indeed exempt from an oath, and then there is an additional dispute between them and Rabbi Abba (whether migu involving brazenness exempts from an oath). But this is forced, since Tosafot refuses to accept an additional dispute.

To understand this, we must understand how he is obligated to take a Torah oath at all. The witness says he snatched, and he himself also admits he snatched. So what oath is he obligated to take? The Torah obligates a person to swear on his claim when there is one witness contradicting that claim. But here he does not contradict the witness. Why should a Torah oath apply? One might have said that the witness counts as two, because he does not swear against him, and therefore this is like a snatching before two witnesses and he must pay. But it is hard to understand how Rivam can say that the witness obligates him in an oath.

Two possibilities may be raised here: (1) the understanding of power of credibility found in Kovetz Shiurim: the snatcher claims that he snatched his own property with a migu that he could have said he did not snatch at all (according to Rivam this is a valid migu). But under the understanding of power of credibility, we saw that such a situation is treated as though the snatcher actually claims that he did not snatch at all (the court argues this for him). If so, it is clear why the testimony of the single witness obligates him in an oath. True, in practice he will swear that he snatched his own property, since it makes no sense to require him to swear that he did not snatch when he admits that he did. But he wins by virtue of the claim that he did not snatch, and therefore this is indeed a case of Torah oath. (2) Perhaps one can explain this even without reference to power of credibility. There is a fortiori argument here: if a witness whose testimony directly contradicts his claim obligates him in an oath, then a witness testifying to something that the defendant himself admits is all the more compelling; therefore it is obvious that here he cannot win without an oath.

We can now also understand the dispute among the Amoraim. If the migu here indeed functions by power of credibility, then Rav and Shmuel and Rabbi Abba all agree that the snatcher is using migu in order to exempt himself. If we understand migu as power of credibility, we regard him as though he were claiming that he did not snatch (despite the fact that he actually claims that he snatched his own property), and that of course obligates him in a Torah oath against the witness who testifies that he did snatch. Thus he is now obligated in an oath (because, juridically, we plead for him that he did not snatch) and unable to swear (because in practice he says that he did). At that point the Amoraic dispute begins: according to Rav and Shmuel there is no rule of 'since,' and therefore the migu effectively exempts him (because thanks to the migu he is treated as one who claims he did not snatch, and then he is subject to an oath rather than immediate payment, so the migu effectively exempts him). According to Rabbi Abba, however, the migu causes him to be treated as one who claims he did not snatch, and that shifts him from monetary liability to oath liability. Since Rabbi Abba accepts the rule of 'since,' the migu does not succeed in exempting him, because in the final analysis he still pays.

Note that according to our suggestion, Tosafot is not discussing here whether migu exempts from an oath, but whether the migu exempts him from payment. According to Rabbi Abba, it does not (because he accepts the rule of 'since,' so de facto he pays even with the migu). According to Rav and Shmuel, it does (because they reject the rule of 'since,' so de facto the migu exempts him from payment). Indeed, the language of Rivam does not suggest that he is speaking about migu as exempting from oath; rather, he writes that migu exempts him from payment, as we explained here.

This is yet another proof for understanding migu as power of credibility. When he claims he snatched his own property, he is treated as one who claimed he did not snatch at all (although in practice he claims the opposite), and therefore he is liable to the Torah oath against the witness who testifies that he did snatch. If we were speaking only of power of claim rather than power of credibility, this could not be said. At most, by force of migu he would be treated as a possessor, but how could one say that he is obligated in an oath that he cannot take if he does not in fact deny the witness at all?

It thus emerges that the puzzlement of Rabbi Breish with which we opened—his question how one can understand migu as power of credibility, that is, 'like electricity'—can now be understood. The court pleads for the defendant the best claim he could have raised, even where he himself asserts the opposite. It thereby places an evidentiary threshold before the plaintiff, and juridically it is as though the defendant were making (or the court were making on his behalf) the alternative claim rather than the claim he actually makes.

 

Part II: Between Factual Reasoning and Legal Reasoning

 

(The relation between the two laws within migu)

Introduction: combining the two aspects of migu

One should note that the mechanism proposed above can lead to a combination of the two laws of migu. The inference sets the claim on its feet and removes its weakness. The power of claim within migu creates a situation in which the claimant has the right to prevail by claim alone. If so, in the resulting situation—where he has a claim and he also has the right to prevail by bare claim—he wins the case. Here we have activated both mechanisms together in order to reach the ruling that he prevails. We saw such an example above in the chapter on the Meitcheter (in the discussion of the question raised in subsection B there).

All this occurs when there is a double problem: both the implausibility of the claim and an inferior status—namely, the other party is the possessor or prior possessor and the like (were it not for the migu). When only one of these two problems exists, then in a case of inferior status, power of claim from migu suffices (and perhaps the inferential aspect of migu can help as well); whereas with an implausible claim (with a weakness) but sufficient force (for example, where he has possession), we need the inferential aspect of migu, and the power-of-claim aspect will not help.

Is there also an essential connection between these two aspects of the law of migu? Is it possible that not only do we need both, but that they are not really two separate things at all? For example, that one serves as the basis for the other, or the reverse. Or perhaps both are two faces of a single essence.[49]

To remind ourselves: in a litigant's admission we saw that this is an available conclusion. According to Mahari ben Lev, the power is what grants him credibility. There are not two laws there, but one combined law.[50] We saw something similar above with the law of 'the mouth that prohibited.' When we discussed why it is stronger than migu as power of claim, we said that on the one hand one could say that 'the mouth that prohibited' simply cancels possession more powerfully. Its argument is stronger, and therefore the litigant's relative force is greater, and he is more of a possessor. This is a matter of quantitative comparison of power.

We also saw there that perhaps one could say that 'the mouth that prohibited' combines power of claim with evidence, and that specifically the evidence in 'the mouth that prohibited' is more effective than the evidence in ordinary migu, because it simply expresses a stronger inference—in other words, 'the mouth that prohibited' is a stronger migu—while the power of claim merely determines the background possession-status, in which respect migu and 'the mouth that prohibited' are equal. According to that, the difference lies on the level of the quality of the evidence, not on the strength of possession and power.

From that comparison it emerges that the plane of inference and the plane of power are very close to one another, and there is certainly room to mix them, similar to what we saw in a litigant's admission. Still, this requires clarification: how is this done, and what exactly is the definition? In this part we will address that question, and through it we will arrive at the definition of an additional plane of halakhic thought beyond the factual plane—a plane that also defines another kind of halakhic reasoning.

A first connection: one aspect causes the other

One first possibility for identifying the two laws within migu is to make one depend on the other. Above, when we compared the different laws (migu as 'power of claim,' 'the mouth that prohibited,' 'it is in his power'), we saw that their force depends on the degree of his control over the situation. The greater the power, the greater the credibility. In migu too we saw that the claim he actually makes is stronger insofar as the inference is stronger. But the easier it would have been for him to make the alternative claim—which he does not in fact make—the stronger the inference supporting the present claim. In other words, the greater the power in his hand (namely, the easier it would have been for him to win), the greater his credibility. This presents matters as if the inference grounds the power of claim (or is another face of it). Below we will see possibilities in which the power of claim specifically grounds the inference.

One should note that this also solves the problem we raised above: how can evidence about the person of a litigant, who is intrinsically disqualified, improve his status and turn him into a valid witness? The answer is that the evidence does not turn him into a valid witness; rather, it clarifies that he has the power to prevail, and therefore he is the possessor. In truth, the inference does not act here independently, but creates power. By contrast, the reverse formulation—according to which power builds the inference—does not solve this problem. Inference does not help a litigant become a valid witness.[51]

But in a litigant's admission there is the same problem, because there too the admission grants credibility to a witness who is intrinsically disqualified (namely, the litigant). Therefore there too we should understand that the inference builds the power, not the reverse. There, however, he has actual power, for he can give a gift or undertake an obligation regarding his property, and this is so even without any inference in the background. Therefore there it is clear that the power is the basic element, independent of the inference. But here that is not the case, for here he requires the help of the court and the possibility of making an alternative claim, and therefore he has no independent power. Consequently he needs the help of the inference, which persuades the court to act, in order for his power to be built.

The opposite possibility: connecting the inference in migu with its power of claim

Until now we connected power of claim to inference by saying that the inferential reasoning of 'why would he lie?' creates the power of claim. But one can also say the reverse: the reason migu creates an inference in favor of the litigant is itself based on the logic of power. Just as in a litigant's admission the power to transfer his property grants him credibility, and just as the law of 'it is in his power' grants credibility because of power, so too in migu the power to prevail by claims alone grants him credibility.

The first possibility raised above was that inference creates power. Here we propose the opposite direction, based on a legal rationale (see below for clarification of this concept): power creates inference. Just as with possession, or the law of 'it is in his power,' there is here too a legal rationale that it is appropriate to grant credibility to one in whose hands the power lies. The power generates the inference.

This is difficult to understand, however, for the simple inference in migu is based on the fact that he could have made another claim and won with it. But against that the Meitcheter already objected that once we accept the law of migu in halakhah, that inference no longer stands. Therefore we are proposing here that he has credibility for a different reason, namely that it is generated by his power. To be sure, credibility does not help a litigant who is intrinsically disqualified, but here our earlier explanation enters: the inference supports the claim and removes its flaw, and therefore he wins by virtue of possession.

Yet this reasoning fits the language of the Gemara only with difficulty, for the Gemara calls the inference of migu 'why would he lie?' That phrase describes the ordinary reasoning we are accustomed to seeing in migu—namely, the reasoning generated by the fact that he could have made a better claim.

'Power of claim' as the mechanism for stopping the 'returning wheel' (in the Meitcheter's question)

Another way to understand migu as a single entity combining both aspects is to return to the Illui of Meitch's argument. He showed that the inference in migu cannot stand, because it destroys itself. One might have said that precisely because of this objection we need the law of power of claim in migu, since that aspect contains no inference. But the Meitcheter tries to explain migu in the direction of inference and not to use power of claim. The reason is probably all those places where we saw that there is no power of claim and nevertheless migu helps (see the beginning of the lecture).

It may therefore be that the problem can indeed be solved differently. On the level of inference, a loop is generated, in which the existence of migu destroys the migu and vice versa. The Meitcheter explained that this loop is stopped by considerations of possession—that is, we choose the state in the loop in which the money remains with the possessor. We objected above on the basis of the views that migu also helps to extract from a possessor, and it is likely that this applies even in cases of inference and not only through power of claim (for example, migu regarding repayment before the due date, where only inference can help, since the claim is inherently implausible). We also raised the objection from migu for half a claim.

Therefore, unlike the Meitcheter, we suggest here that the mechanism for stopping the 'returning wheel' of the Illui of Meitch is the rationale of power of claim (and not necessarily possession, as he suggested). That is, since the two possibilities are equally viable (that there is migu and therefore no inference, or that there is no migu and therefore there is inference), and we have no way to choose between them, we choose one of them by means of the consideration of power of claim. In other words, we decide to stop the wheel at the point where he does have migu, because that fits the power of claim in his hand.

According to this approach, migu as power of claim does not create possession-status; rather, it serves as an alternative mechanism for stopping the loop, in place of possession (which was the Meitcheter's mechanism).

But this raises the question: why indeed stop this infinite loop specifically at that point? If the operative consideration is possession, or some other kind of power, that is understandable (somewhat like the rationale that the one in pain goes to the doctor). But if this is simply another stopping mechanism, its basis is unclear.

The answer is that there is a 'legal rationale' that one ought to believe one who has power of claim, and therefore we stop the loop at the possibility that is 'correct' from the standpoint of legal reasoning. This resembles the Meitcheter's argument, but here the understanding of power of claim is different. It does not create possession-status; rather, it constitutes another legal rationale which, like possession, determines the point at which we stop the loop, and thereby gives him the credibility of migu. According to the Meitcheter's description, the inference creates a situation in which there is reason to grant credibility and reason not to. According to our proposal here, that loop is stopped by the consideration of power of claim, which leads us to choose the option that there is credibility in migu.

It may be that this is only another interpretation of the previous understanding—that migu as power of claim creates another kind of power, something like possession-status. The ability to prevail expresses some sort of power, and the legal rationale determines that in the absence of evidence, the one who has the power to prevail should be the one to prevail by claims alone. In fact, possession itself is also a type of legal rationale. We are accustomed to the rationale of 'the one in pain goes to the doctor,' but as we shall see below, that too is not self-evident at all.

A possible implication of this proposal concerns the objection we raised above against the Illui of Meitch from migu for half a claim. We saw there that it is not always the case that where there is a loop we decide specifically on the side that there is migu, nor do we always decide in favor of the possessor. In migu for half a claim, for example, Rabbenu Yonah rules that there is no migu at all, and does not infer from the loop that there is migu. Why, then, does Rabbenu Yonah not decide out of doubt in favor of the state in which there is migu and leave everything in the possessor's hands?

In light of our words here, one can say that there the stopping mechanism is different. Migu as power of claim is only a criterion for stopping the inferential loop, not a substantive law. Now, adopting this stopping method in a case of migu for half a claim would mean accepting half the claim. But a ruling that leaves half the disputed money in his hands is not one of the two states possible within the inferential loop. Only the ruling that there is no credibility at all lies on the loop (it is one of the states between which the loop oscillates; the second state is that there is migu and the credibility is complete). Therefore, in migu for half a claim, all the medieval authorities stop specifically on the second state, since the loop can be stopped only at one of the states between which it oscillates.[52]

If so, we do not always stop the loop by ruling in favor of the possessor; rather, we always stop it at one of its states, and usually that benefits the possessor, but not always. Legal reasoning determines where the loop stops. Sometimes that legal reasoning is determined by possession, and sometimes by the rationale of power of claim in migu.

How does this explanation—power of claim as the stopping mechanism for the loop—differ from the previous explanation? In the previous possibility, the victory was by force of inference, except that the inference itself was generated by the claim. Here we have suggested that the victory is by force of the law of 'power of claim,' which is a kind of possession, accompanied by migu as inference that removes (or according to the Meitcheter, removes only as a matter of doubt) the flaw from the claim that comes with the possession. According to this explanation, the inference is indeed based on the fact that he could have made another claim, as also follows from the plain language of the Gemara using the phrase 'why would he lie?'.

Migu and possession: between factual reasoning and legal reasoning

From what we have said it emerges that the conception of migu as 'power of claim' includes a rationale that touches on credibility. We have the sense that one should believe one who has a migu—that is, one who has the ability to win on his own—not merely because of the inference of 'why would he lie?'. In truth, this is not an inference at all. A reasoning of the inferential kind is one that clarifies reality for us, and the law then follows. The reasoning underlying migu as 'power of claim' is of a different sort: this is how one ought to act even when one lacks clarification of reality.

Possession too is based on logic of a similar character, but here I want to argue that this is reasoning, not mere rule or policy. There is an inner sense (an intuition) that this is indeed the right way to act, and therefore no verse is needed to teach it, in the spirit of 'why do I need a verse? It is logical.' Only for this reason do we stop the 'wheel' at the state that has legal logic—namely, at the state favoring the one who has the power of claim. There is no other logic that can explain why the loop should stop specifically there.

Let us examine the more familiar legal rationale according to which, absent evidence, money should remain with the possessor. At first glance, the reasoning is that we have no positive reason to act, and therefore passive non-action is preferable. This is also what seems implied by the Talmudic expression that the one in pain goes to the doctor. Such a consideration appears, on the face of it, to be one of the efficiency of the court's work. The court has the right to refrain from acting unless evidence is brought before it that compels it to act.

One can understand this as a claim that in monetary law there is another factor to be considered: the court itself. The question when the court is justified in acting does not necessarily derive from the question what the factual truth is, or whether an injustice has occurred. It is another question, and therefore it is examined with different tools. According to this, all the rationales of power ('it is in his power,' power of claim, a litigant's admission as gift) are based on viewing the court as an actor in the field. Where it has no clear reason, it does not act. The question what counts as 'action' by the court and what counts as 'refraining from action' depends on the factual question of what will happen without its intervention.

But it seems clear that this is not the whole story. There is a clear feeling that this is also the right rule, not merely an efficient and utilitarian one (other legal systems too, mutatis mutandis, adopt it, and do so even without verses or sources). More than that: if the court is willing to act despite the absence of evidence, why should we not allow it to do so? It seems quite clear that there is a right here belonging to the defendant, not merely an efficiency concern of the court.

But even that is not a sufficient answer. As we saw, there is no presumption here that factually clarifies the possessor's ownership of the property (at least when possession appears without the presumption that what is in a person's hand is his; and some later authorities noted that even that presumption does not function as clarification but as a rule of conduct). If so, why is this indeed the proper way to act? What right does a person have in money that is unrelated to the fact that he is truly the factual owner?

Perhaps one might have said that this is merely a right of property holders generally—that no one should be able to pester them at every turn with false claims and force them into court? It is certainly very reasonable that one should not rule against a person simply because someone else is harassing him to surrender the property. If so, this is a consideration of social order: without it, no one could live. But in truth there would be no positive rationale for leaving the money with the possessor.

Yet this too does not seem to be the full picture. In practice one could have found other practical solutions to the situation. If really the probability that the plaintiff is the owner is equal to the probability that the defendant is the owner, why was specifically this solution chosen? If the search is only for a technical arrangement and not for a correct and substantive solution, then other solutions are also possible—especially ones that would preserve the equality between the parties. Why not divide it, for example?

All this highlights the point that the law of possession rests on reasoning, not on some technical solution. We all have the simple intuition that, absent evidence, the one currently holding the money ought to prevail. Clearly this rationale is not evidence that he is truly the owner. Rather, it is a rationale that this is how one ought to act: a 'legal rationale.' In other words, as distinct from factual reasoning, which serves to clarify factual reality, there are legal reasonings whose basis lies in correct legal conduct, without relation to factual clarification (or where factual clarification cannot be achieved).[53] Below we will try to make this clearer and sharper.

Note: It seems that one can connect to this the well-known inquiry whether the ruling that 'the burden of proof is on the claimant' is a definite determination of monetary law or not (a practical consequence being whether one may use that money for the four species on the first day of Sukkot under the requirement of 'yours,' and the like). Usually this inquiry is viewed as depending on the status of the court's action: does the court actually rule, or merely withdraw, and so on. But according to what we have said, one can understand it as a question touching the rationale of 'the burden of proof is on the claimant' itself, that is, the question of legal reasoning. If there stands behind this law a positive legal rationale, then it is not merely withdrawal, and therefore it is a correct and definite law. Hence there is reason to say that the money is certainly the possessor's, because he acquired it properly and justly.

For what reasons is it proper and 'correct' to leave the money in the hands of the possessor? What is that additional criterion, beyond the desire to clarify factual reality, that can determine how one ought to act in monetary law (to whom to give money and from whom to take it)? In what sense does the money really 'belong' to its possessor if not by virtue of a consideration proving that he is the true owner? Is there some further consideration touching the determination of ownership (when we are not using evidence showing that he really owns it, and also not mere efficiency considerations)?

The very same questions can be raised regarding laws such as 'it is in his power' or 'the mouth that prohibited,' where too it seems their basis is 'legal reasoning.' All of these are based on some power possessed by the individual, and by force of it he wins the money even without factual clarification (or with clarification at a level insufficient by itself to justify victory). Moreover, in most of these cases, as with migu, it does not even seem possible to base the matter on considerations such as efficiency or court activity. Why is it more efficient to grant credibility to one for whom the matter is in his power, or to one who admitted something with his own mouth, such that he may qualify that admission or realize what is in his power? Does this not border on theft—to take money from one to whom it does not belong and give it to one about whom we have no factual evidence at all that the money is really his?[54]

This is the kind of reasoning we shall call 'legal reasoning.' There are two kinds of reasoning: probabilistic-factual reasoning, according to which it is likely that reality is one way or another. This is the ordinary and simple kind of reasoning. It may be called 'inference,' and the ordinary understanding of migu ('why would he lie?') is a clear example of it.[55] And there is legal reasoning, which instructs us, without relation to the probability of what the reality actually was, that it is nevertheless correct to act in one way rather than another.

Reasoning in Jewish law

Before we try to understand the basis of these reasonings, we must clarify an important point touching the halakhic status of reasoning in general.

The status of reasoning in Jewish law is apparently that of Torah law. See Rabbi M. M. Kasher's article at the beginning of his book Mefa'ne'ah Tzefunot, and the sources cited there. Some bring as proof the Gemara's repeated question in several places: 'Why do I need a verse? It is logical.'

At first glance, Pnei Yehoshua and Tzelah dispute this in Berakhot 35a regarding the blessing before eating. According to the Gemara's conclusion, the obligation to bless before eating is derived from the reasoning that one may not benefit from this world without a blessing. Pnei Yehoshua holds that this is a Torah law, like any other reasoning, and therefore asks how a mere reasoning can underlie the obligation of blessings over enjoyment, for that would mean the obligation is Torah law, whereas this is not the practical halakhah. Tzelah there disagrees and holds that reasoning does not create Torah law; see his words there.

It seems that Tzelah's intent is to say that the questions 'Why do I need a verse? It is logical' are said only in an interpretive context. When reasoning is an interpretive tool whose purpose is to clarify the commands of the Torah, then of course it is Torah law and fully substitutes for an explicit verse. It is only a revelation of the Torah's intent in that command, while the obligation to fulfill it comes from the command itself. Every interpretation is accomplished through reasoning, and therefore there is no point in the Torah's revealing what the correct interpretation is if it can already be derived by reasoning. But Tzelah apparently holds that all this is true only with respect to interpretive reasoning. When, however, the reasoning seeks to generate a new law in addition to the Torah's laws—such as the blessing over enjoyment—the authority of that obligation itself comes from reasoning (for this is not an interpretation of any verse). According to Tzelah, this does not create a Torah law but a rabbinic one.[56]

By contrast, Pnei Yehoshua apparently holds that anything derived from reasoning has the authority of Torah law, even if it is a novel law and not merely an interpretation of an already existing Torah law. This also seems implied by the language of R. Nissim Gaon in his introduction to the Talmud (printed at the beginning of Berakhot), where he explains that whatever emerges from reasoning (in his language: from the heart's understanding) obligates every person even without a command. There it seems explicit that he means newly generated obligations as well, not only interpretations. I have additional proofs for this elsewhere, and I have discussed it at length in another place (regarding the disputes between Maimonides and Nachmanides concerning the first and second roots), but this is not the place.

Within the laws of claims and counterclaims we find quite a few laws emerging from reasoning. For example, migu (in both its aspects), various presumptions, possession, prior possession, and more. There are almost no verses in the Torah dealing with this part of Jewish law. Yet it is quite clear that what emerges there is not rabbinic law but part of the Torah's core law. This is not difficult even for Tzelah, however, because these are interpretive reasonings. The Torah tells us that we must adjudicate monetary law (after all, even gentiles are commanded regarding laws), and therefore we must decide by reasoning what to do in places where the Torah did not explicitly speak. What counts as good evidence for us, and what does not? Who counts as owner of property, and who does not? Such decisions are a kind of interpretive reasoning, revealing what the Torah intended by its demand that we adjudicate monetary law and clarify truth through evidence.

But if we really treat these reasonings as interpretive, then it is very plausible that we would want to adopt only factual reasonings (such as 'why would he lie?'). Legal reasonings such as possession and 'it is in his power,' however, do not interpret a simple Torah command but create something new. They do not reveal who the owner is to whom the property should be given; they create other criteria that also seek to determine to whom the court should give the money. The view that such reasonings are Torah-level seems possible mainly according to Pnei Yehoshua; according to Tzelah it is not so likely, and this requires further study.

There is another proof that the Torah's aim in the laws of evidence and the laws of claims is not only clarification of factual truth and bringing it to light. We invalidate the testimony of relatives, or of a litigant. Yet, as we noted, in these cases the truth is known to us, since relatives are trustworthy witnesses. The point is simply that we are forbidden to accept their testimony and to act on it.

In such places we tend to say there is a 'scriptural decree'—a hidden divine will beyond the search for truth. But even the concept of 'scriptural decree' itself deserves extensive discussion. In Meiri, Sanhedrin 70 (at the beginning of the chapter on the rebellious son), he explains that a scriptural decree is a revelation from a verse helping us decide the correctness of a certain reasoning. After such a decree, we still try to understand its reason (see there regarding the law that a 'son'—and not a daughter—can be a rebellious child).

This is perhaps why Ritva, in responsum 52 cited above, also explains the disqualification of the litigant (and we added the disqualification of relatives) by means of a legal demand: separation of authorities in the court. Admittedly this demand is derived from the verse 'and the two men shall stand,' and therefore it may fit even Tzelah's approach. Yet we do not find such an exposition in Hazal, and Ritva innovates it from his own reasoning (as Rashbam does regarding the law that a witness cannot become a judge). Presumably this exposition teaches a law that was already clear to him by legal reasoning even beforehand.

Clearly there is a rationale behind this definition. There is a clear sense that it is 'right' that the three authorities (litigant, judge, and witness) not be mixed in the court. This is not merely a 'scriptural decree.' Why indeed is this so? What is the hidden legal rationale?

Perhaps this rationale is exactly what we learn from the verse 'Fathers shall not be put to death because of sons,' from which we derive: fathers are not put to death by the testimony of sons. It is unreasonable that we impose punishment (certainly death, but also other punishment) on a person because of himself. Jewish law does not allow a person to kill himself. His punishment must be imposed by an external factor, one standing outside him. (As stated, this is the basis of the 'right to remain silent' in secular law as well. See my remarks above regarding relatives, who are also like the person himself.)[57] Perhaps that is because we do not hold that a person can impose legal consequences upon himself; someone from the outside must impose them on him.

Likewise regarding possession: as we saw, there is a rationale that the claimant must bring proof; this is the rationale of 'the one in pain goes to the doctor.' But is that a definition or a reasoning? Here it is clear that it is reasoning, not a definition, since the Torah contains no source for it.[58] Yet what exactly is that reasoning? That will be the subject of the next chapter.

The source, status, and force of legal reasonings

In order to understand better the source, meaning, and force of legal reasonings, one can proceed in two principal directions: (1) to understand them as an independent type of first principle, or axiom, and therefore not something that can be reduced to more basic claims or reasonings than themselves; (2) to find a more fundamental explanation that grounds them. Below we will proceed along both paths and suggest two ways of approaching legal reasoning. It may also be that both are correct: some legal reasonings are grounded in the first way, and others in the second.

1. First, we must stress again that the basis of legal reasoning can never be factual reasoning. There is no possibility of grounding 'the mouth that prohibited,' or 'it is in his power,' or migu as 'power of claim,' on a factual probability that one side or the other is more likely to be right, for if we do that, migu turns back into inference, and we have erased the second law of migu altogether.

What follows from our discussion is that migu as 'power of claim' is simply another kind of reasoning. It does not necessarily yield factual clarification. For example, in a litigant's admission, and similarly in 'it is in his power,' the fact that he can give a gift or undertake an obligation creates a rationale for believing him, and that is what generates the inference. But this reasoning does not necessarily serve as evidence that he really borrowed; rather, it is a consideration that this is indeed the right way to act (to believe him because the power to give a gift is in his hand).

If so, what is the basis of such reasonings? In fact, even if we find a more basic rationale explaining these legal reasonings, we can continue asking what grounds that rationale itself. Ultimately, then, we arrive at a different kind of first principle, one not concerned with clarifying reality, that stands at the base of legal reasoning. According to this direction, the question how we ground migu as power of claim, or any other legal rationale, has no answer. Every grounding must rest on some prior principle, and the most basic principle—one for which there is no, and no need for, more basic grounding—is what we call legal reasoning. It is a first principle. The very fact that we have an intuition that this is how one ought to act is itself the compelling rationale in such a case.

This is an intuition we possess that concerns values (legal or moral), not facts and the way they are established.[59] In general terms, we may say this: these rules determine justice, not necessarily truth. Even when factual truth is unknown, there is another type of principle telling us how to act: principles of justice. Our conclusion here is that justice does not necessarily overlap with truth, and law does not necessarily overlap with factual reality.[60]

In truth, one might also say that even factual grounding, such as the rationale of 'why would he lie?,' is based on the same certainty of first principles. If someone were to ask why one should rely on factual clarification, we would answer that it is self-evident that money should be given to the one to whom it really belongs. That itself does not need further justification, for the principle itself—that the court should give the money to its true owner—is certain to us as a first principle.

It should be noted that this understanding can actually bring us quite close again to the older, more common conception of migu as 'power of credibility' (or the version found at the beginning of Mishpetei HaMigu, which seems hard to understand by simple logic), what we above called 'like electricity.'

By force of the legal rationale, we transfer power from the better claim, which he does not make, to the weaker claim, which he does make. This does not work in terms of factual clarification, nor even in terms of the ordinary law of possession, but in terms of legal reasonings that are first principles in their own right, much like the reasoning underlying the laws of possession. If so, at least formally one can indeed describe this as a transfer of force from the stronger claim to the weaker one—'like electricity.'

Someone may come and ask: this is no answer at all. What we have really said is that we have no answer, and nothing more. But that is not so. The difficulty in understanding the rationale of power of claim was based on the assumption that all reasoning concerns clarification of reality. Therefore those who struggled with it could not understand why we should give money to one who is not necessarily its factual owner. But once we understand that there are also legal reasonings that do not arise from any approach to factual clarification, then the process can indeed be described as a transfer of power. That is in fact what happens. The logical basis of what happens is the first principle, but it is hard to describe verbally the legal reasoning at the basis of migu as 'power of claim.' Therefore people describe it in terms such as 'like electricity' or 'power of credibility.'

2. The second way of grounding legal reasoning is to find a more basic principle that will itself justify the legal rationale. As noted, that principle too will itself be a legal rationale (for it cannot be factual, as explained), but it will already be a first principle, as in method 1. Thus method 2 for grounding legal reasoning ultimately depends on method 1. There are basic legal reasonings that are first principles, and there are legal reasonings derived from them. Here we will try to suggest some such directions.

Above we saw several such examples. For instance, for the rule that a witness cannot become a judge, or for the disqualification of a person from testifying about himself or a relative, we suggested explanations based on legal principles, such as the notion that a person cannot impose law upon himself, and the like. Whether or not these particular principles are correct, they are in any case examples of reasoning and grounding of the present type (type 2).

It seems possible to explain the legal rationale of possession, and the status and mode of operation of all legal reasonings, through the well-known words of R. Shimon Shkop in Sha'arei Yosher, beginning of Gate 5, where he cites Mahar"i Basan's question regarding the practical rule that doubtful theft is treated leniently in favor of the defendant. Mahar"i Basan asks: why not be strict because of doubt concerning a Torah prohibition? To explain this, R. Shimon Shkop develops his great principle in monetary law: at the basis of the Torah's monetary law stands a legal system external to the Torah. What that legal system determines, the Torah then builds upon by adding a further layer that makes it prohibited theft to violate the norms of justice. Therefore, if the legal rule of the broader law of justice determines that it is proper to act according to 'the burden of proof is on the claimant' and to leave the money with the possessor (even though factually he is no more likely to be right than the plaintiff), then the monetary laws themselves behave accordingly. That is, the money becomes truly his, and there is not even any doubt of theft.

From this we see that legal reasoning does not merely determine how the court behaves; it also determines ownership of the money. Note that this goes one step beyond what simple logic would require: it shows that legal reasonings not only determine how one should act, but are themselves part of the law of ownership. Let us elaborate slightly and explain the parameters of the matter.

From R. Shimon Shkop's words it emerges that a person's ownership of money is determined by the rules of legal duties, legal acts (acts of acquisition, loans, contracts, and so on), and legal reasonings (possession, migu). When a person borrows, he is obligated to repay, and therefore there is a debt owed to the other. When a person acquires through an effective act, he becomes the owner of the property. But when a person wins money by virtue of legal reasoning, he also receives ownership of it. Legal reasonings are part of the law of ownership. The existence of a legal rationale creates new ownership of property even where no act of acquisition has been performed (for factually it may be that the possessor is not the owner, and therefore he performed no effective act of acquisition with respect to that property, and yet that property is his).

As an example, let us return to possession. It is not an act of acquisition, nor does it clarify that such an act occurred in the past. Yet it too, exactly like acts of acquisition, can serve as a cause of ownership. When the court rules by force of the rule that the burden of proof is on the claimant, ownership of the money is generated even if it did not exist before, and even without any act of acquisition. That is the mode of operation of the legal rationale we call 'the burden of proof is on the claimant' (or: 'the one in pain goes to the doctor').

If so, legal reasonings are not intended to clarify reality, for they are not evidence. They are additional ways, beyond factual legal acts (such as acts of acquisition), of conferring ownership upon a person with respect to property.

In another formulation: the fact that a person performs an effective act of acquisition gives him ownership of the object. But even there the basis is a legal rationale (found in every legal system, even without Torah recognition). Just as there is a legal rationale that if a person bought property lawfully then it is his, so too there is a legal rationale that if he is in possession of it and no factual evidence has been brought against him, we should leave the property with him, and he thereby acquires it and becomes its owner.

The same is true of migu as 'power of claim,' and of 'it is in his power,' and the like. The assumption of those who struggle with these concepts is that they contain no logic, because they do not help clarify the facts. When a person makes the weaker claim, factual reality is not better clarified. In the end, what determines his victory is a legal rationale, and by force of it his ownership of the money is generated.

We proposed locating migu as power of claim on the plane of possession-status, that is, as a legal rationale based on the power to prevail. It is reasoning, but not reasoning about clarifying reality. One might perhaps think of a different legal rationale. But the fact that we have a clear intuition that this is the way one ought to act is enough in itself. At most we can say that it is a first principle.

In any case, what emerges is that one does not necessarily need a source in order to innovate this (just as possession and the rule that the burden of proof is on the claimant have no source), because there is a simple rationale that this is the right way to act.

In summary, migu can indeed provide good reasoning, but it is not an inference whose aim is to show that in fact there was a loan. The power to prevail by bare claim is what generates the legal rationale that we ought to leave the money with him, just as in the case of a possessor (or as in the conclusion we saw that sometimes the prior possessor should not be given the status of possessor).

The same is true of 'it is in his power' and of 'the mouth that prohibited.' In these too, according to most medieval authorities, the reasoning is not merely a stronger 'why would he lie?'. There is a rationale that one who has the power in his hand deserves that we 'believe' him. That is how one ought to act, even though this has no connection to clarification of facts. This is what the Rosh writes in chapter 3 of Bava Batra when he explains 'it is in his power': it is credibility arising from the fact that he is like an 'owner' over that matter which is in his power to do. This also relates to what we noted above with regard to 'the mouth that prohibited,' namely that a person has 'ownership' over his own admission, allowing him to interpret and qualify it and cancel everything beyond those qualifications.

Of course all this is true only if the reality cannot be clarified. Once we reach the conclusion that the court case cannot be decided by evidence, we decide it by claims or by legal reasonings. That is exactly what is called 'prevailing by a claim' alone, without evidence.

Here we return to migu as power of claim. Our conclusion at this point is that not only do we act in accordance with legal reasonings, but they determine legal credibility (not factual credibility) of claims. If so, power of claim grounds the legal credibility of the person. This was one of the formulations we saw above for combining the two aspects. As we saw there, in a litigant's admission too the power grounds the credibility.

Perhaps it is not accidental that in all these examples (admitting part, migu), there seems at first to be an ordinary factual rationale, and then it turns out that it cannot operate, and suddenly as if by magic a parallel legal rationale emerges in the same situation. Perhaps the reason is that there is a connection between the two aspects: one serves as the basis for the other, and therefore they always appear together.

A concluding note: possessory statuses created by the plausibility of claims rather than by a factual situation[61]

The concept of possession as a legal rationale, and its connection to reasonings that clarify factual reality, is greatly strengthened by the fact that there are possessory statuses that are not derived at all from physical control over an object, but from the credibility or plausibility of a claim. Let us now bring two examples:

1. The later authorities investigated whether liability for damage caused by one's property exists because he was negligent in guarding it, or because of the mere fact that he owns the damaging property.

One common practical implication of this inquiry in the later authorities is the dispute between the Hazon Ish (Choshen Mishpat sec. 7, subsec. 7) and Pnei Yehoshua regarding the burden of proof in damage cases. If Reuven's ox damaged Shimon, and Shimon sues him to pay, while Reuven claims that he guarded it properly and was unavoidably prevented (for without negligence in guarding, there is no liability for damage caused by one's property), Hazon Ish holds that the burden of proof lies on the damager, whereas Pnei Yehoshua holds that it lies on the injured party.

The later authorities explained that the basis of the dispute is whether the obligating factor is the mere fact that my property caused damage; if so, there is clearly a basis for liability, and the only question is whether I guarded it properly and should therefore be exempted. According to that, the burden of proof lies on the damager, who seeks exemption. This is presented as the view of the Hazon Ish. But if one understands that liability arises because of negligence in guarding, then the injured party must prove that the damager was negligent, because before that there is no basis at all to obligate payment, and the burden of proof is on the claimant. Here the burden of proof lies on the injured party. This is presented as the view of Pnei Yehoshua.

However, the Rosh Yeshivah pointed out to me that the language of the Hazon Ish itself does not imply this. Rather, his intent seems entirely different. In his view there, the burden of proof lies on the damager because of the assumption that ordinary damage occurs through the owner's negligence, and one who claims otherwise bears the burden of proof. He does not base his ruling on the conception that negligence is unnecessary for liability, but on the assumption that if damage occurred, it is very likely that there was also negligence by the owner. Therefore, if the owner claims it was an unavoidable accident, that is implausible, since the straightforward assumption is that there was probably negligence in guarding, and hence the burden of proof lies on the damager. If so, the Hazon Ish's reasoning is not that the injured party is the possessor in a damages claim, but that the damager's claim is less plausible. Indeed, that is clearly implied by his language both in subsec. 7 and in subsec. 18.

If so, we have here a principle that a less plausible claim requires proof and is treated as undermining possession-status. The plausibility of the claim also creates a certain kind of possession-status. Again, then, we find a connection between inference and possession and power: plausibility determines power, and the distinction between inference and 'power' begins to blur.

2. The medieval authorities on Yevamot 64b wrote that with a forewarned ox, as a matter of law we require three incidents and not two, because we are in doubt, and in doubt one does not extract from a possessor. Keren Orah there asked that according to this, in order to restore the ox from the status of forewarned back to the status of tam, two incidents should suffice, because here we are not extracting money from a possessor but retaining the money in his hands. Yet we do not find this among the medieval authorities (see also Or Gadol on the Mishnah there).

According to our explanation above of the Hazon Ish, this is very well understood. The intent of those medieval authorities is not extracting money from the factual possessor, but 'extracting' from the one who offers the more straightforward explanation. That is, when the ox is a forewarned ox, the straightforward explanation is that it gores as a forewarned ox, and one who wants to return it to the status of tam bears the burden of proof. Since the issue is monetary, he is treated as the claimant seeking to extract from a possessor.

Again we see that the straightforward explanation is what determines possession-status, or power. Therefore three incidents are required out of doubt in both directions, and there is no difference between them. The straightforward explanation is the prior situation, and it is that which determines possession-status, not necessarily physical holding.

Parenthetical remark: It should be noted that, both against the Hazon Ish and against the explanation proposed here of those medieval authorities, practically we rule that a presumption does not extract from a possessor, and even a majority—which is stronger than a presumption—does not extract money from a possessor. If so, it is hard to see why inferential considerations such as the assumption that damage does not occur without negligence, or that an ox that gored three times is forewarned, do extract from a possessor.

Precisely for that reason we must say that in such cases these presumptions define who the possessor is; they do not extract from a known possessor. A presumption cannot extract from a known possessor, but when the very possession-status depends on that inference, then perhaps the presumption can 'extract from a possessor,' that is, establish a different possessor. The physical holder will not necessarily be the possessor, and the burden of proof may fall on him. This is exactly like what we saw in migu as power of claim, which established the current holder as the possessor against the prior possessor, despite the general rule that with land the prior possessor is treated as the possessor against the current holder.

Still, this requires further thought: what is the test? Where do we say that the inference determines possession-status, and where do we instead follow the ordinary rules of possession, in which case the inference does not extract from the possessor? Which kinds of inference determine possession-status itself, and which merely contend against it?

Perhaps one can say more. In truth, wherever we find that such presumptions extract from a possessor (or determine possession-status), this is only because even without that inference there is no possessor. Only in situations where there is no possessor do the presumption and the plausibility of the claim determine who the possessor is. Of course, we must then ask why in precisely these cases, absent those inferential considerations, there would be no possessor.

Let us return to the Hazon Ish and see this in his own case. According to what we have said here, it follows that for the Hazon Ish the damager really is not the possessor, for otherwise the inference would not suffice to extract from him. The reason is that the Hazon Ish apparently does not understand, as Pnei Yehoshua does, that negligence is the obligating factor in payment; for if it were, the damager would be the possessor and the inference would not suffice to extract from him (or to make the injured party into the possessor). Thus the reason there is no possessor in damages is apparently that for the Hazon Ish at least there is a serious possibility that the fact that his property caused damage is itself the obligating factor. Only on that background can the inference determine that the injured party is the possessor, as explained. According to this, those later authorities may have been correct in their understanding of the Hazon Ish, but this is not the place to elaborate.

In any case, all this shows us that possession is only one sort of rationale by which power determines what the court ought to rule, but power is not limited to possession; sometimes plausibility and simplicity determine the power according to which one ought to rule. Consequently migu as 'power of claim' too can serve as such a source of power, and its function will be like possession.

Summary

In summary, legal reasonings are not fixed laws but reasonings. Yet they are not reasonings that clarify reality; rather, they are legal reasonings that generate halakhic reality, such as ownership and the like. Since they are reasonings, there is no necessary need for a textual source.

To sharpen this point, it is important to note that all this may also be true in matters of prohibition and permission, or in personal-status law. Migu, or 'the mouth that prohibited,' operates by force of reasoning. To be sure, they do not always form a basis for factual credibility, yet we grant claims credibility because of the power possessed by the claimant. This is legal reasoning, but not necessarily only regarding money or possession. Legal reasoning says that the party with the power should be 'believed.' We accept his claims and act as though they were factually correct. Therefore this is not necessarily a law of possession (as seems implied by Kehillot Ya'akov, Bava Metzia sec. 3, that migu as power of claim is a kind of possession), but something broader.

In another formulation, one can say that possession derived from the plausibility of a claim (see the previous chapter) applies also to matters of prohibition, unlike the simple conception of possession, which belongs only to monetary law. This is another way to see the possibility of applying legal reasonings in matters of prohibition and not only in monetary law.

There are many additional reasonings in matters of prohibition (some of them learned from verses), such as presumptions and majority, which could also be discussed in this context, but this is not the place.

We can now return to the point discussed above: the disqualification of relatives and litigants from testimony. We saw that there are situations where the court knows the truth and yet will not rule the law accordingly. For example, when Moses and Aaron, or any two brothers, come and testify about something. Or when a litigant testifies about something, for he too is intrinsically disqualified and not merely suspected of lying.

At first glance, it is proved from here that not only the facts underlie halakhic rulings. There are additional considerations (for example, that fathers not be put to death by sons' testimony, or that a person not incriminate himself, and the like). We mentioned that the principle that a person does not render himself wicked is accepted also in secular legal systems, which even cite our decisors in this regard, although they obviously have no verse or other source to ground it. Usually that principle is accepted because there is a clear intuition within each of us that this is the proper way to act, even where it flatly contradicts the factual truth known to us. We saw a possible explanation in the reasoning that a person cannot put himself into prison—that is, impose laws on himself.

Parenthetically, let us add that very often students (and even more so various jurists, mutatis mutandis) try retrospectively to ground these principles in more 'intelligible' considerations, such as efficiency or procedure. But usually that happens only after the legal principle has already been adopted in the system because it was perceived as self-evident. The explanations come only afterwards, because people do not manage to make clear to themselves how there can be another plane of thought underlying a halakhic ruling or legal judgment. They are making the same mistake as those who struggle to understand migu as 'power of claim': the mistaken assumption that reasoning can deal only with clarification of reality, and that there is no other source of reasoning that determines what justice is, or what law is.

Appendix: A discussion clarifying the points (edited by the one who prepared it for print)

Introduction

Says the one who brought this to print: before publication, this booklet was given to several of the great scholars of the generation, may they live long, so that they might cast their discerning eyes over these matters, and if they found room for comment, grace us with their remarks.

Of what I received, I chose to bring here comments from one of those great scholars, with whom I had the most extensive discussion of all. In my view, the give-and-take with him sharpens the understanding of the matters significantly, and it is important to stress it. This is especially so since it also touches upon Part II of the booklet, which is the conceptual basis of the entire approach, and these points are not so familiar in the Torah-learning public.

I will write the matter in the order in which it was said, by way of question and answer. That is, what that great scholar argued before me, what the lecturer answered to those claims, and so on. And with God's help, here it begins.

The discussion

A. The claim of that great scholar concerns mainly what was written in Part I (see the table of contents, sec. F) regarding the illustration of migu as power of claim by means of the case in the Mishnah in Ketubot (p. 21), concerning what is stated there at the beginning of chapter 2, that Rabbi Yehoshua agrees that one who says to his fellow, 'This field belonged to your father and I bought it from him,' is believed, because the mouth that prohibited is the mouth that permitted. In the booklet two formulations were proposed to explain the superiority of the case where there is migu (when there are no witnesses that it belonged to his father) over the case where there is no migu:

1. The possibility of winning with another claim gives him the right to prevail by bare claims despite the presumption of prior possession on the other side.
2. The other claim prevents the creation of the presumption of prior possession, and therefore the current holder prevails.

The explanation of the second formulation is that since the possession-status (or presumption of prior possession) of the other party was built by the first party, and he could have refrained from creating it, it is the plaintiff who is the 'sick' one, as it were, and therefore it is he who must go to the doctor.

B. To this the great scholar objected: what difference does it make how we came to know that the other party was the owner? Once we know he is the possessor, the burden of proof lies on the one who seeks to extract from him. Because the defendant is the source of that information, is it therefore no longer correct? Does the fact that he is the source turn him into the possessor? He added jokingly: according to that logic, perhaps we should also give him a prize and make him High Priest!

C. To this R. M. A. answered: possession does not operate by itself. We have no scriptural decree that establishes it. Possession is the result of reasoning. It works because it indicates a power the possessor has with respect to the object, and therefore gives him superiority. Consequently, if the plaintiff is the one who gave that power to the defendant, then the plaintiff is the one with the power, and possession therefore does not generate any power for the defendant. In such a case he is not regarded as a possessor. This is not his own power, but power he received from the other party, and therefore it cannot itself give him superiority over that other party.

D. The great scholar responded: What is this 'power'? Explain to me what those letters mean. Is this about muscles? [I remarked to him ironically: and what then is the meaning of 'power of claim'?] Afterwards I asked him: if so, what is really the reasoning of possession, since it is not a scriptural decree? He answered that the Gemara says: the one in pain goes to the doctor. I asked him what that means, and he said it is not something explained on one foot.

E. R. M. A. then said: 'The one in pain goes to the doctor' is a rationale of a kind of withdrawal. One who wants to seat the court must bring us a good reason. But a rationale of withdrawal does not create superiority for either side; it only determines what to do where neither side is superior. In such a situation, passive non-action is preferable. Therefore, where no side has superiority, withdrawal-based reasoning indeed suffices, and that is all there is. But in many cases one side also has superiority, and in such a situation a rationale of withdrawal does not suffice. For example, where there is migu against a possessor, and according to most opinions we do not say migu so as to extract. Here the rationale of 'the one in pain' does not suffice, because the plaintiff brings some evidence in his favor. Without some additional consideration, we should have ruled in his favor (even if the weight of the evidence is small, certainly we would not give the money to the party who has less evidence than his fellow). It is therefore clear that possession gives active force as well, not merely a rationale of withdrawal and passive inaction.[62]

As for his question, what is power? Power is the source and root of the legal rationale for winning by virtue of possession. The fact that there is power is a fact. The person really can win with the alternative claim. The legal rationale determines that the one who has the power prevails in the absence of decisive evidence against him. If he does not like the term 'power,' one can use the term 'ability' instead. The plaintiff has the ability to win with another claim, and that is what gives him legal superiority.

One first way of understanding this reasoning is the consideration that a person should not be required to prove regarding every object in his possession that it belongs to him, for otherwise no one could live. Yet this does not seem sufficient. There is an intuitive sense that the power, and the possession-status generated by it, give him an active right to win the money, and do not merely exempt him from bringing evidence. Again, this is not factual clarification but legal reasoning. It is reasonable that he should be the one to win the object if the power to win it lies in his hand in some way. We emphasize again that this is active reasoning, not merely a rationale of withdrawal, which is insufficient to explain possession, as explained in the body of the work. Regarding the force of intuitive reasoning, see above and in the main text of Part II.

F. The great scholar then said: What sort of power is this? I say it is mine and that you are a thief; at present there is a fifty-percent chance that I am right (and certainly if I have the advantage of migu). What do you say against that? In a case where there is no monetary tie at all, such as one who exchanged a cow for a donkey and it is unknown where the offspring was born, that is a balanced doubt.

G. R. M. A. answered: The doubt is balanced with respect to clarifying the factual reality—whose fetus it was and where it was born. But that is precisely the point of legal reasoning: sometimes one wins even when the evidentiary balance is equal. One does not win by force of factual clarification but because there are other ways of winning as well (as explained in the main text).

It is for exactly this reason that I added the second part dealing with legal reasoning (the discussion is developed still more in my book, but this is not the place). There we explained that there are additional ways and reasons to win an object, beyond clarifying factual truth. Legal truth is not necessarily factual truth.[63]

This now raises the question: what is the basis of legal reasoning? The fact that someone feels some claim is correct does not make it correct. Why can something be justified without reasons? This is, in the end, the focal point of the whole discussion, and that is why the entire second part was added.

For example, in the Gemara in Berakhot there is a rationale that one may not benefit from this world without a blessing. Someone may come and say: who says so? I do not feel that way. What makes that reasoning true? Is there some reason or proof that can be brought for it? If there were a reason or proof, it would be an ordinary Torah law and not a law based on reasoning. Rather, what is involved here is an intuitive sense that this is right. So too in our case.

In fact, every reason one offers is based on first principles. One can always keep asking 'why,' and another reason will be given. Then one will ask 'why' again, and another reason will be given. At some stage the reasons stop, and we stop with the answer: because that is how it is. If so, the whole edifice is based on an arbitrary claim, and everything collapses. But this is true of every reason. So if that is the objection, nothing can ever be justified and everything is arbitrary.

The only way to claim that not everything is arbitrary is to recognize the force of our intuitive cognitions. If there is a simple intuitive sense that something is correct, then it is probably correct. Therefore there is possession, and therefore there is also the rationale of the one in pain going to the doctor, and therefore also migu as power of claim. The definitions come after the intuition. They give shape to the intuition and define it as sharply as possible. But the basis and force of our primary truths, upon which everything else is built, are the intuitive cognition and nothing more.

The demand to explain and justify the rationale of migu as power of claim, or of possession, is based on the belief that there is some clearer principle that can explain these principles. But these are first principles that are self-evident, and therefore they do not require explanation. There is no clearer principle that can ground them.

Needless to say, intuitions can be disputed. At times Reuven's intuition is not present in Shimon, and then a dispute arises. The question how one persuades in such a dispute is not unique to legal reasoning. It is true in all areas of learning and analysis. Very often there are disputes (even among Tannaim and Amoraim, and certainly among medieval and later authorities), and people argue in order to persuade. Sometimes they succeed and sometimes not. But every such dispute always ends with 'I have the intuition that this is correct.' A series of 'why' questions leads us lower and lower until we reach 'because that is so.' Therefore the mere fact that there is a dispute is not proof that there is no truth here. It is only proof that not everyone is aware of the truth and knows it.

The goal of argument is to bring the disputant to discover within himself the same intuition that I have, or the reverse. Once that is found, the dispute is over—and not a moment earlier.

Therefore even the explanation of legal reasoning is not really an explanation. It is a pointing to a rational phenomenon such that, if you who dispute with me see and feel as I do that it is reasonable, there is no need whatsoever to seek explanations. In my view, everyone feels that migu contains power of claim, and the question of its basis, source, or explanation is superfluous. There is no need to seek explanations for things about which we have simple intuitions. At most one can try to define them better and give them form. The definitions can be debated.

For example, R. Elhanan Wasserman understood migu as power of claim in one way, whereas Kehillot Ya'akov and we following him proposed another. We all have a clear sense that migu has the power to award money to the one who has the migu. The dispute concerns only how to give form to that intuition. Put differently: the question here is not why migu has power of claim, but how its power of claim should be defined. That is my central point. I am not trying to explain migu as power of claim, but to place it in the same row as other first principles that require no grounding in yet more fundamental first principles. We must trust our intuition. I have discussed this at length in my book Two Carts and a Balloon, most of which is devoted to this issue.

To be sure, a small shadow of an explanation was present here after all. The main claim in Part I was that the legal rationale of migu as power of claim is based on the legal rationale of possession. If someone has an intuitive legal sense that possession indeed helps, he need not find within his intuitive thinking yet another legal rationale in favor of migu as power of claim. Migu as power of claim is a derivative of possession. Both grant him superiority because of power over the object (the power to win—migu; the power to hold and use—possession).

The proof of all this is that these legal reasonings are accepted everywhere in every legal system. Thus ordinary human reason grasps them intuitively. The one in pain going to the doctor, or possession, are reasonings used in every legal system; the only differences lie in the definitions given to these raw intuitions in the various systems.[64] And this is part of the command incumbent on the descendants of Noah to establish law, which also applies to Israel.

There are no kinds of reasoning beyond factual-clarificatory reasoning and legal reasoning. Clarificatory reasoning too is a kind of reasoning without further justification (for the chain of reasons always stops with 'because that is so,' as explained above), but its purpose is clarification of reality. Legal reasoning is reasoning without further justification, but its purpose is not clarification of reality; it is clarification of how we ought to act in a given reality (which is not always fully known). All reasonings that are not clarificatory are legal reasonings, and we all use them.

H. Finally I asked R. M. A.: and if someone comes and says, 'I do not feel this,' what shall we answer him? He replied: certainly not everything that anyone happens to feel is necessarily true. But in the absence of proof, or of contrary proof, intuition is the measure of truth. If someone else lacks such an intuition, then we must argue. For example, I will show him that the rationale of possession, which he does acknowledge, is based on the same principle (that power gives legal superiority). That same legal rationale also underlies migu as power of claim. This is a kind of argument—a 'small shadow of an explanation'—that can help a person define his intuition and find such a feeling within himself. Once one shows him this and links migu with possession, he may discover within himself an intuition that supports migu as power of claim as well. This is another kind of reasoning that creates legal superiority by means of power, and there is no reason to reject it if we accept the reasoning of possession.

He added that some acknowledge only those intuitions that all, or most, of the world acknowledges; only those, they say, can count as first principles needing no justification. But even that is not so. Even the criterion that a reasoning is found in all or most human beings is not the correct criterion. It is not a bad sign that there is something to the reasoning, but it is certainly not the sole criterion. In truth, this very claim—that whatever all human beings agree upon is a correct intuition—is itself only an intuition. Yet I myself (= R. M. A.) do not have that intuition. So why do you accept it, given that it is not universally shared (I do not accept it)? Necessarily, the reason you accept it is that it seems to you yourself to be correct. If so, you too agree that a person's own intuitive sense is the measure of truth, not acceptance by the majority of the world (which is admittedly a plausible sign, and we used it above regarding legal reasonings,[65] but it is not the sole criterion).

I. R. M. A. concluded: the great sage, the author of Havot Yair, already wrote: 'I love Plato and I love Socrates, but I love truth more than all.' Therefore, despite everything, the Mishnah remains in its place.

[1] Here I should thank the Rosh Yeshivah, Rabbi Eliyahu Blumenzweig, may he live long, from whom I first heard several of the main ideas presented in this lecture (especially concerning 'power of claim' and the explanation of Maimonides in Hilkhot To'en VeNit'an; the main elements of these ideas are already present in the approach of Kehillot Ya'akov on Bava Metzia, as will be cited below).

Blessings are also due to the community of learners, and especially Rabbi Eichenbroner, who labors and exerts himself in organizing the lectures and publishing the booklet.

[2] See, for example, R. Shimon Shkop, Novellae to Ketubot sec. 27, and to Bava Batra sec. 18; Kovetz Shiurim II, sec. 3; Novellae of R. Naftali Tropp to Bava Metzia sec. 137; Kehillot Ya'akov to Bava Metzia sec. 3; Novellae of R. Shmuel to Bava Batra sec. 8. At the beginning of Mishpetei HaMigu this is also cited from the book Atteret Hakhamim (by the author of Barukh Ta'am), Choshen Mishpat sec. 20. Many other later authorities say the same; the matter is well established.

[3] One might somewhat push back and say that all this depends on the understanding of the law that we plead on behalf of orphans—namely, that we place them in the stead of their father, who would have made such a claim, and the migu is measured relative to the father. But this is forced, because even the father himself did not in fact make that claim, and no evidentiary force was generated here even on his behalf.

[4] See also Novellae of R. Shmuel to Bava Batra there, and also Kovetz Shiurim on Bava Batra sec. 112.

[5] In Novellae of the Illui of Meitch sec. 51, and in Kehillot Ya'akov on Bava Batra sec. 22, it is written that for this reason such migu cases are stronger, and therefore one might have thought that such migu would exempt from an oath, unlike ordinary migu.

[6] According to this, it is also clear why an uncertain claim still counts as a claim, unlike one who is silent and says nothing—for example, regarding a three-year possession presumption without a claim, or concerning a definite claim and an uncertain claim against a possessor, according to the view that a definite claim is not superior. According to our explanation, this is clear: in the end, an uncertain claim is still a statement about the facts, but the litigant is still asking the court to act, and in that sense he is indeed making a real claim.

[7] Perhaps he reads the verse as referring to the three roles in the court: 'the two men'—the witnesses; 'who have the dispute'—the litigants; 'before the Lord'—the judges. That is, the two types of roles in court (litigants and witnesses) must stand separately before the judges. This would be a source for separating the three authorities within the court from one another.

[8] Some explained that the absence of claims is itself evidence against the litigant, and such an explanation would still place this law within the law of evidence. In any event, it is clear that making a claim is not evidence in his favor by which he wins. This will be clarified further below.

[9] Regarding splitting testimony, however, the Ra'avad's well-known view is that relatives are considered disqualified witnesses, unlike a litigant, who is treated as someone who is not a witness at all. Therefore one can split with regard to a litigant but not with regard to relatives. Still, there are those who disagree with the Ra'avad (see the Rosh in Makkot there and others), and moreover even the Ra'avad does not necessarily deny that the same principle of separation of authorities is involved. He may simply hold there is a difference in degree: within the innermost circle around the person there is no testimony at all, whereas in a more distant circle there is disqualified testimony. For example, the Gemara in Sanhedrin 10a discusses splitting testimony with respect to his wife and with respect to his property—two further circles around the person—and therefore raises the possibility of splitting there. I have discussed this elsewhere at length. See my article, 'On the Law of Damage Caused by One's Property,' Mishpetei Yisrael I, Petah Tikva, 5763.

[10] This seems somewhat implied by the wording of Ayelet HaShachar there; see carefully.

[11] We should note that with respect to witnesses this point is accepted even in other legal systems (with all necessary distinctions). Generally, evidence in legal systems does not concern the reliability of the witnesses but the facts. In ordinary civil systems it is customary to leave the question of witnesses' reliability to the discretion of the judge, and the law contains no rules at all dictating how the judge should determine a person's reliability.

But according to our analysis, with respect to the litigant all this is irrelevant from the outset, because there is no room at all to discuss his reliability. Regarding witnesses, the evidence does help; regarding the litigant we are not even looking for reliability.

[12] On this see at length my article, 'Everywhere that We Say "On That Day," It Was That Very Day: One Decisive Day in the Development of the Oral Torah,' MiMidbar Mattanah, Yeruham 5759.

[13] See, for example, Kovetz Shiurim on Ketubot sec. 44, and Rabbi Sheinberg's article in Sefer HaZikaron LeR. Hayyim Shmuelevitz, p. 619. There is much room to elaborate on whether this is a defect in the uncertain claimant or an advantage in the definite claimant, and whether there is really any distinction between the two (or perhaps whenever the uncertain claim is strong, the definite claim is weak, and vice versa). The later authorities have already discussed this extensively (see, for example, Kovetz Shiurim on Bava Batra sec. 461; Imrei Binah, To'en VeNit'an sec. 4; and Novellae of the Illui of Meitch sec. 14), but this is not the place.

[14] This difficulty was raised for me by Rabbi Ohayon after reading an early draft of this booklet, and the matter was clarified in discussion with him. I thank him for that.

[15] And even those who disagree and think there is no evidence here do not necessarily reject our distinction; perhaps they simply think no evidence is generated here at all. See a note on this below at the end of the subsection.

[16] One might have argued that migu merely removes his status as litigant, just as we find that one can remove a personal interest and thereby remove the disqualification of being interested.

Thus, in Avnei Milu'im sec. 35, subsec. 1, he discusses one who is involved in the act but not personally interested (such as a seller testifying to whom he sold, and the like), and proves that he is not disqualified from testimony. If so, perhaps here too the litigant is indeed the actor, but has no personal interest because of the migu, and therefore is a valid witness. In other words, the migu does not confirm his trustworthiness but removes the personal interest, and thus he becomes a valid witness.

Something similar is written by Ritva, Kiddushin 43b, regarding the migu of agents of repayment to say that they returned the money to the borrower. Ritva explains there that this is a case in which testimony is based on migu and nevertheless counts as testimony, because the migu only removes their personal interest and does not itself build the testimony, and therefore they remain valid witnesses.

If so, one might have said here too that the migu removes the personal interest of the litigant, and therefore he remains a valid witness. In other words, the migu is not evidence in itself, but only the removal of an interest, which qualifies the litigant's own testimony.

This can be rejected in several ways. First, this explanation assumes two things: (a) that migu can remove personal interest and not merely constitute evidence (like Ritva above); (b) that a litigant whose personal interest has been removed is qualified to testify (like Avnei Milu'im). One can challenge either assumption, since at least neither is universally accepted:

• In the Kiddushin sugya itself, as several later authorities have already pointed out, Tosafot seems to disagree with Ritva on this point. This also seems proven from Tosafot, since they did not answer as Ritva did.
• As for the basic principle of Avnei Milu'im, he uses it to explain the dispute between Rav and the school of R. Sheila in Kiddushin 43a, whether an agent can serve as a witness. According to Avnei Milu'im, the dispute is whether the agent—who is like the sender himself, and therefore is considered the doer of the act, yet has no personal interest (for the betrothal is performed for the sender)—is valid or invalid as a witness. But, as is known, Or Sameach, Hilkhot Gerushin 2:15, explains the dispute of Rav and the school of R. Sheila differently. According to Or Sameach, the dispute is about the very nature of agency: whether it is an extended hand, in which case the actor is the sender and the agent may testify, or whether agency is simply authorization, in which case the actor is the agent and therefore he is disqualified. According to Or Sameach, it is clear that everyone agrees a litigant even without personal interest is disqualified from testifying.

Beyond this, if all that were correct, then in the end, after the migu, we would have one-witness testimony rather than migu. The migu would only have removed the personal interest, not served as evidence. Yet nowhere do we find that when one litigant has a migu, the other litigant is subjected to the oath of one witness. And when a defendant makes an uncertain claim and cannot swear, he should have to pay because one witness stands against him. Practically, however, this is usually treated as migu being used to extract from a litigant making an uncertain claim, which according to most opinions does not help. Therefore, although one can perhaps develop this as a possible direction, it plainly does not explain migu according to all views, and thus it is not a sufficient explanation for our purposes.

There is some difficulty from Tosafot there, who wrote that migu ought to help the agents (if there were migu for two people), when the concern is that they are interested parties. For there too there is a problem of intrinsic disqualification, not only concern for falsehood, and according to our analysis migu should not help for such a problem (just as it does not help for relatives or litigants). Nor can one say that according to Tosafot migu is power of claim, for then it can help even with intrinsic disqualification, because here we are dealing with witnesses, and they have no power to make claims (see below). One would then have to say that the migu merely removes their interest, and thus they remain valid witnesses.

One sees similarly from Tosafot there regarding an oath, where he says that an oath does not help witnesses because an oath is an oath and not testimony. According to our analysis, he should more simply have said that the oath may grant credibility, but the problem with them is not credibility but intrinsic disqualification as interested parties.

If so, it is difficult why the later authorities above understand that Tosafot disagrees with Ritva, when Tosafot too seems to agree that evidentiary considerations removing personal interest can qualify testimony.

It therefore seems clear that Tosafot holds that an interested party is not intrinsically disqualified but merely suspected of lying. Consequently it is clear why migu could have helped those witnesses: according to Tosafot the problem with them is not intrinsic disqualification but lack of trustworthiness, and evidence can certainly address that. Therefore Tosafot holds that migu and oath could in principle have helped qualify them as witnesses, were it not for side-rules: (1) migu does not help two witnesses; (2) testimony based on an oath is not testimony.

[17] At first glance one could also discuss the law of definite and uncertain claims here. But plainly, definite versus uncertain is not evidence and therefore does not belong here. Moreover, definite versus uncertain looks more like evidence about the content of the claim than about the reliability of the litigant as a witness, and one could answer along those lines; but this is not the place.

One could also discuss the presumption that a person does not act brazenly before his creditor, and the like (as distinct from the presumption that a person does not repay before the due date, which is evidence on the factual plane and concerns not the litigant's claim but his conduct; in addition, it is evidence against him rather than in his favor, though that does not really change the issue of intrinsic disqualifications).

[18] We mentioned above that with migu involving brazenness this is one of the clearest cases where there is no inference of 'why would he lie?,' but there is power of claim.

[19] In such a migu Rabbi Yehoshua would indeed not believe him (for he believes only in a case of 'the mouth that prohibited'), but practically we rule that he is believed even by force of migu.

[20] I learned the basic idea of this understanding of migu as 'power of claim' from the Rosh Yeshivah, Rabbi Eliyahu Blumenzweig, may he live long. The proof from Maimonides that we will bring below also comes from him.

[21] The question of the rationale by which the existence of a prior possessor obligates the other party to bring evidence will be discussed below.

[22] Note that the alternative claim would not only have caused me to win, it would also have prevented the creation of the presumption of the prior possessor and the resulting possession-status. In such a situation, possession-status is not generated.

[23] Where the claim is implausible we will also need migu as inference, to make the claim plausible. We saw this above in the distinction between type 1 and type 2, and we will discuss it further below.

[24] In Mishpetei HaMigu this wording of Maimonides is cited, but as will be explained below, from his questions it seems he did not understand the matter at all.

[25] This resembles what secular legal systems call 'the right to remain silent,' by which the defendant may remain silent so as not to incriminate himself with his own mouth.

[26] Such a migu is very similar to 'the mouth that prohibited.' True, one can distinguish that the possession-status generated here is different. See further below.

[27] As far as I recall, the expression 'why would he lie?' in the Talmud always denotes the inferential aspect of migu, and this also follows from the context of the sugyot: whenever it appears, it is in a situation where we need the inferential aspect of migu. By contrast, the expression 'migu' does not always denote power of claim, and at times may perhaps denote inference as well (depending also on the various approaches).

[28] It is more than plausible, for if it were false, it would involve brazenness before the one who knows the truth.

[29] One might note that here, in our case, it is somewhat difficult to understand 'the mouth that prohibited' in precisely this way, for even after the added claim that he bought it from the father, there still remains the admission that the plaintiff's father was the prior possessor. If so, in this case the addition does not qualify the admission, and therefore the presumption of prior possession seemingly remains; only its force is cancelled, similar to migu as power of claim.

Perhaps here too one must say that insofar as the presumption of prior possession would prevent him from winning the field by claim alone (without evidence), it does not exist at all. In other words, here too there is a qualification of his admission that the father was the prior possessor: insofar as that would interfere with his victory, the admission is null. By contrast, in migu as power of claim he remains the prior possessor, but his force is weaker than the force possessed by the current holder (who has the migu).

To what may this be compared? Possession-status vis-à-vis 'the mouth that prohibited' is a case of complete suspension, whereas when it stands against migu as power of claim it is only something like being pushed aside.

[30] See on this R. Yair Aton's article in Meisharim I, Yeruham 5762.

[31] So too in the Arukh regarding an unintended but inevitable result in Sabbath law where one does not care about the result and is therefore exempt. The commentators already asked: nobody wants to be stoned for violating the Sabbath, so such an inevitable result should always be exempt. Here too one could say that if we remove the punishment in such a case, the punishment would return, and so on in a loop. In all these cases the question arises where to stop this 'returning wheel.' Here it is easier, because there is possession, and that gives a reason to decide to stop the wheel specifically in favor of the holder.

[32] Theoretically one could also reject the better claim if it appears 'fraudulent,' but that is precisely its advantage: it will not appear fraudulent. That is exactly why it is the better claim. It is preferable for a litigant to win in a secure and straightforward way, rather than begin to entangle himself.

[33] This difficulty is not so severe, since the law of a 'fraudulent' case applies even today. See Maimonides, Hilkhot Sanhedrin 24:3 and elsewhere.

[34] Above we mentioned that, mutatis mutandis, this is the accepted practice in secular law as well: the reliability of witness and litigant is left to the judge who hears them, and the law itself sets no rules for determining a person's reliability. Everything depends on the judge's impression. From our discussion it emerges that the same may be true in Jewish law.

[35] One can discuss migu as power of claim in matters of prohibition. If migu as power of claim is a determination of possession-status, then it would not seem relevant to prohibitions. But if we follow the view of Kuntres HaSefekot mentioned above, that the presumption of the prior possessor is like a prior-status presumption in prohibitions, then perhaps one could say that power of claim helps in that way there as well, but this is not the place.

[36] This subsection was added many years after the original writing (in 5776). It arose in a discussion of the law of migu with my son Yossi.

[37] This also explains in a simple way the distinction of Sha'ar HaMishpat sec. 46, subsec. 14 (cited in Kovetz Shiurim II, sec. 4), that migu does not help two witnesses in a case of two against two, but the litigant's own migu helps him win even where there are two against two. In such a case the litigant wins by claims through the migu, and that exists even in two-against-two. A migu of witnesses would be only an added piece of factual evidence to support the witnesses' words, and that cannot work—especially since the evidence concerns the persons of the witnesses and not the facts themselves. This is a different direction from what Kovetz Shiurim writes there.

[38] See, for example, Kehillot Ya'akov on Ketubot sec. 19 (in the sugya of witnesses who said, 'This is our handwriting').

[39] True, problems may arise such as migu for two people, or that migu adds nothing beyond the force of two witnesses, and the other problems cited by the medieval authorities regarding migu for witnesses; but this is not the place.

[40] This depends on the various medieval views there, and this is not the place.

[41] A similar distinction appears in the words of Kovetz Shiurim there, sec. 6.

[42] Of course, this contradicts the words of Tosafot and Rashba cited at the beginning of our discussion regarding migu from one poor claim to a slightly better poor claim, but this is not the place.

[43] In fact, the very fact that the Shakh compares prohibition to money, and does so specifically on the aspect of migu as 'power of claim,' would seem to prove against us, for in matters of prohibition there is no concept of possession at all. According to our explanation of migu as 'power of claim,' there would therefore seem to be no room for it in matters of prohibition. At the end of Part II below we will see that this is not so. There is a kind of possession derived from the plausibility of claims rather than from an objective state, and that kind of possession also exists in matters of prohibition.

[44] Of course, if the defendant admits he borrowed and did not repay, we do not plead forgery for him, but obligate him to pay. The court pleads on his behalf only where he makes some other exempting claim and does not simply admit. Here, when he admits something harmful to himself (that the document is not forged), the court pleads the contrary claim (forgery) on his behalf.

[45] See lecture 36 in the doctoral-students folder—Bava Batra.

[46] We should stress that according to the understanding that migu is power of claim and not power of credibility, this cannot explain Rashbam. Power of claim turns him into a possessor, but it does not validate the deed in his hand as though it were a valid deed; therefore it cannot explain Rashbam. Only the understanding of power of credibility explains why, according to Rabbah, the holder truly wins by force of the forged deed as though it were valid.

[47] It should be noted that from the language of Kovetz Shiurim itself it does not seem that this is what he intended, because he explains that according to R. Yosef the migu is not accepted because it relies on witnesses, whereas he has no witnesses (since he admitted the deed is forged). That is, he indeed explains that the holder's migu makes him win by force of this deed (not the lost one), but he does not invalidate the migu because it is against witnesses. Rather, he says the migu tries to construct witnesses whom we know do not exist. According to him, even R. Yosef holds that migu is power of credibility, and therefore has no principled problem with the fact that the migu is against witnesses (for every migu is against the claimant's own admission, since when he makes claim B he admits A is false). Therefore he explains that R. Yosef rejects the migu for another reason. But Rashbam's own language says it is because the migu is against witnesses. According to Rashbam, one must say that the migu claims there are witnesses, while his admission says there are none, and thus it is like migu against witnesses. Still, it seems that Rashbam can indeed be explained as above even if that was not the precise intent of Kovetz Shiurim.

[48] See lecture 47 in the doctoral-students folder—Bava Batra.

[49] Of course, on this view one must examine how there can be cases where only one aspect of migu exists—either 'power of claim' or 'why would he lie?'. Note that in such cases too we see that this one aspect can operate alone to award victory to the litigant.

[50] True, in a litigant's admission there is also a migu that he could have remained silent, but ordinarily that seems not to be halakhically significant there, because we are dealing with a higher level of credibility (a litigant's admission is like one hundred witnesses), and therefore it is unlikely that this is based only on migu.

[51] We did solve that above by saying that the inference removes the flaw in the claim, and therefore he wins by virtue of possession. According to what we are saying here, there is no need to reach that point, because in the end the power itself is what causes him to win the case.

[52] A thought: perhaps there there is a double doubt—both the circular doubt that exists in every migu, and in addition the problem of half a claim.

[53] Rabbi Dessler, in Mikhtav MeEliyahu, explains that a falsehood that Jewish law permits and even desires is not falsehood but truth (for example, saying 'a beautiful and gracious bride'). This is a similar separation between factual falsehood and evaluative-legal falsehood.

[54] This last question already borders on Mahar"i Basan's well-known difficulty (and that of other later authorities) regarding doubtful money as doubtful theft. We will address that below.

[55] True, we already saw that a litigant cannot bring evidence. But for our present purpose what matters is that the evidence itself is based on factual reasoning that the speaker is telling the truth, since if he wanted to lie he would lie better. As we concluded above, in the case of a litigant who claims by force of migu, this inference does not itself extract money; it only strengthens a claim, thereby allowing possession to extract money. That distinction is not important here.

[56] It may be that Tzelah too agrees that each of us must observe what follows from reasoning (as R. Shimon Shkop wrote in Sha'arei Yosher, beginning of Gate 5, p. 4 in his pagination, that all service of God is obligated by reason), but it would not have the formal status of a Torah obligation.

[57] There are several judges (gentile and, following them, several Jewish judges in Israeli courts) who, through misunderstanding, linked this to Maimonides' discussion of the principle that a person cannot render himself wicked. See my article, 'Is Jewish Law "Hebrew Law"?' Akdamot 15, 5765. There I explained that it is obvious this is not the same law in the sense they understood it, due to a complete misunderstanding.

[58] On that basis, some wrote in explaining the Gemara that the one who says 'the one in pain goes to the doctor' also relies on a verse and only adds to it. But this does not seem correct.

[59] This intuition is not emotion, and it is not subjective. It is objective, exactly like the rules used in factual clarification. The understanding that the possessor wins is objective and common to all human beings, just like the criteria of factual clarification. It is no less than the principles of clarification we all regard as self-evident. See the discussion of emotion and intellect (= intuition) in my book, p. 329.

[60] We mentioned above what Rabbi Dessler wrote in Mikhtav MeEliyahu: when Jewish law instructs one to say something factually false, that is not falsehood but the truth in that situation, because truth is what ought to be said, and now that is what ought to be said. This is a distinction between factual falsehood and evaluative falsehood, akin to the distinction we made here between factual justice and evaluative-legal justice.

[61] See my article, 'On the Nature of Conceptual Inquiries,' Meisharim III, Yeruham 5764.

[62] At times there is also the presumption that whatever is in a person's hand is his, and there is some room to say that this is a clarifying presumption, though this is disputed, and this is not the place. In any case, in the case of those goats that ate produce there is certainly only possession and no such presumption.

[63] This is similar to what Rabbi Dessler wrote in Mikhtav MeEliyahu, that at times a falsehood can be truth. If a falsehood is the correct thing to say at that moment, then that itself is the truth. At times legal truth is truth, without necessary dependence on factual truth. See above p. 55, note 47.

[64] If one asks what proof we can bring from non-Jewish legal systems, I would answer that great later authorities did so. See, for example, my article 'Deception and Intellectual Property,' Tehumin 25, p. 350. There (at the beginning of p. 353) I cited the words of R. Shimon Shkop in Sha'arei Yosher, and of the author of Sho'el UMeshiv, who brought proof that copyright theft is forbidden by Torah law from the fact that this is accepted throughout the world. See there also what I cited in note 3 from the author of Pe'at HaSadeh, who objected strongly to them, but his words have no substance. Their principle is firm and sound: if the intuitive reasoning of all decent human beings says so, then it must also be correct in the Torah—provided the Torah itself does not explicitly say otherwise. See there as well, where I discussed how this fits with the halakhic determination that there is no ownership over abstract entities.

[65] See the previous footnote.