Ketubot, Chapter 2, Lesson 1
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Introduction to the topic of migo through Bava Batra
- Possession and "the burden of proof rests on the one who seeks to extract from another"
- The presumption that what is in a person’s possession is his, and the statistical mistake
- The distinction between possession and the presumption regarding movable objects (goats)
- The first case: a claim after the due date and the defense of "I repaid"
- The second case: a claim within the due date and the presumption that a person does not repay before the due date
- The dispute between Pnei Yehoshua and Chazon Ish regarding damage caused by an ox, and its implication for possession
- The third case in Bava Batra: a claim after the due date and the defense "I repaid within the due date"
- Migo and "why would I lie" according to the Rashba
- Netivot HaMishpat: there are no fools in court, and Maimonides on estimation in monetary law
- Migo involving brazenness, and the definition of brazenness
- Rabba and Tosafot in Bava Metzia: partial admission and an oath because of a migo involving brazenness
- Rabbi Shimon Shkop: two mechanisms in migo—"why would I lie" and the power of a claim
- The distinction between migo in monetary cases and migo to exempt from an oath according to Rabbi Shimon Shkop
- The Kehillot Yaakov: the power of a claim as a mechanism that turns the claimant into the one in possession
- Conclusion and further remarks
Summary
General Overview
The text opens with an introduction to the topic of migo through a debt claim in the Talmud in tractate Bava Batra, and sets up three basic cases revolving around the advantage of the one in possession, presumptions such as the presumption that a person does not repay before the due date, and migo as "why would I lie." It argues that "the burden of proof rests on the one who seeks to extract from another" is first and foremost a rule of legal procedure and status-quo adjudication, and not necessarily a statistical evidentiary rule, and it warns against a statistical mistake when one transfers a general majority pattern to a subgroup of disputed objects. It presents a dispute among later authorities (Pnei Yehoshua and Chazon Ish) regarding damage caused by an ox as the basis for the suggestion that possession also depends on the plausibility of the claim, and it continues with a conceptual development of migo: regular migo, migo involving brazenness, and two layers in migo according to Rabbi Shimon Shkop and the Kehillot Yaakov—the evidentiary dimension of "why would I lie" as opposed to a dimension of the power of a claim that shifts the burden of proof by turning the claimant into the "one in possession."
Introduction to the topic of migo through Bava Batra
The Talmud in Bava Batra deals with a debt claim, where one person claims that another owes him a loan. Three graded situations were presented, with the case that appears on the page being the third one, and before it two preliminary cases were brought in order to build the concepts. The presentation is meant to stabilize the concepts before the passage gets more complicated.
Possession and "the burden of proof rests on the one who seeks to extract from another"
The rule "the burden of proof rests on the one who seeks to extract from another" gives an advantage to the one in possession in monetary law, because the plaintiff is the one asking the court to change the existing situation. "Whoever is in pain goes to the doctor" serves as an explanation of legal procedure: whoever wants action from the court has to give the court a justification to act by means of proof. The rule begins as a matter of procedure but affects adjudication, because when neither side has proof, the court leaves the money in the hands of the one in possession, and therefore the rule appears in legal rulings as the rationale for the defendant’s victory.
The presumption that what is in a person’s possession is his, and the statistical mistake
It was argued that some attribute an evidentiary dimension to possession by virtue of the presumption that what is in a person’s possession is his, but here it was emphasized that the move from a general majority pattern to the case of a disputed object is a statistical mistake. The majority pattern that says "most objects in a person’s possession are his" refers to a general group, but in the subgroup of objects over which there is litigation there is no reason to assume that defendants are more truthful than plaintiffs. Both sides are presumed upright, and the Talmud even says that a person does not file a claim unless he has grounds, and so there is not necessarily an evidentiary advantage for the defendant.
The distinction between possession and the presumption regarding movable objects (goats)
A distinction was drawn between possession as the default status quo and the presumption that what is in a person’s possession is his, and it was said that both are legal rather than evidentiary. In the example of goats wandering around, there is no room to say that what is in a person’s possession is his, because goats are wandering things, but possession in the sense that the defendant does not need the court in order to keep them still remains, and the burden stays on the plaintiff to bring proof if the court is to act. So too, even where there is no proprietary presumption based on actual physical possession, the procedural principle remains: the one asking for change bears the burden.
The first case: a claim after the due date and the defense of "I repaid"
In the first case, the loan is for one month, and the claim is made after two months. The defendant says, "I repaid after the due date," and he wins by virtue of "the burden of proof rests on the one who seeks to extract from another," because he is the one in possession and the burden is on the plaintiff. In the absence of proof from the plaintiff, the court does not act, and the money remains with the defendant.
The second case: a claim within the due date and the presumption that a person does not repay before the due date
In the second case, the claim is made after only two weeks, within the term of the loan, and the defendant says, "I repaid." Here it is said that there is a presumption that a person does not repay before the due date, and therefore the defendant is not believed even though he is the one in possession, and he must pay. The question was raised how a presumption can lead to money being taken without witnesses, and a framework was proposed for later use: the presumption does not directly extract money but rather changes the status of possession, so that the defendant is not regarded as the one in possession when his claim is implausible.
The dispute between Pnei Yehoshua and Chazon Ish regarding damage caused by an ox, and its implication for possession
In the example of an ox that gored, Pnei Yehoshua places the burden of proof on the plaintiff by virtue of "the burden of proof rests on the one who seeks to extract from another." Chazon Ish places the burden of proof on the damager, not because proper guarding is merely an exempting defense, but because the claim "I guarded it as people normally do and nevertheless damage occurred" is an implausible claim. It was suggested that Chazon Ish sees possession as also depending on a plausible claim, so that one who advances an implausible claim loses the status of the one in possession despite physically holding the property.
The third case in Bava Batra: a claim after the due date and the defense "I repaid within the due date"
In the third case, the claim is made after the repayment date, and the defendant says, "I repaid you within the due date." The defendant could have said, "I repaid after the due date," and would have been believed as in the first case, but instead he chooses a claim that faces the presumption that a person does not repay before the due date. The Talmud presents a doubt: do we say "why would I lie" in a case where there is a presumption, or perhaps in a case where there is a presumption we do not say "why would I lie"—the clash being between presumption and migo.
Migo and "why would I lie" according to the Rashba
Migo was defined as a situation in which the litigant presents a weak claim but could have made a better claim and would have been believed, and as a result the weak claim is strengthened. In a responsum, the Rashba explains that wherever there is migo, we believe the litigant because if he had wanted to lie, he could have made another claim on which he would have been believed. "Why would I lie" is described as the assumption that a liar would choose the best possible lie, and therefore choosing a less advantageous claim strengthens the assumption that he is telling the truth.
Netivot HaMishpat: there are no fools in court, and Maimonides on estimation in monetary law
Netivot HaMishpat asks how migo works for an ignoramus who does not understand which claim is better, and answers that there are no fools in court, because litigants prepare and consult others. Maimonides was cited in the laws of the Sanhedrin as saying that capital cases and corporal punishment are decided only on the basis of two witnesses, but in monetary law other forms of evidence and even judicial estimation were effective in the time of the Talmud. It was noted that today courts do not positively decide cases that way, but rather withdraw in a suspicious case, and the possibility was considered that migo may be a tool entrusted to judicial discretion, even though on the face of it it is treated as a binding rule with fixed laws.
Migo involving brazenness, and the definition of brazenness
Migo involving brazenness was brought as a case where the stronger alternative claim involves insolence, so that failing to choose it does not prove truth but rather a desire to avoid brazenness. It was clarified that migo involving brazenness depends on the gap in brazenness between the claims, and if both are equally brazen then this is not a problem of migo involving brazenness. It was said that in the Talmud, migo involving brazenness belongs mainly to lying in front of someone who knows the truth or in front of someone who did you a favor, with a dispute between Rashi and Tosafot in Bava Kamma 107 about the definition of brazenness.
Rabba and Tosafot in Bava Metzia: partial admission and an oath because of a migo involving brazenness
Bava Metzia presents Rabba’s question: why did the Torah say that one who admits part of the claim must swear, and Tosafot explain that the question is why he is not believed by a migo, since he could have denied everything. Tosafot explain that this is a migo involving brazenness, and therefore it does not exempt from an oath, and from here comes the principle that we do not invoke a migo involving brazenness to exempt from an oath. The paradox was emphasized: migo involving brazenness weakens the hypothetical use of the brazen claim, even though a brazen claim, when actually advanced, may strengthen credibility.
Rabbi Shimon Shkop: two mechanisms in migo—"why would I lie" and the power of a claim
Rabbi Shimon Shkop argues that migo serves two functions: clarifying that the litigant is not lying because if he had wanted to lie he would have claimed something else, and strengthening the litigant’s position because he had the power to prevail in another way. He proves this from the rule that we make claims on behalf of orphans, where the court claims for orphans a claim such as "we repaid," which requires a migo of "they were lost through unavoidable circumstances," even though there is no consideration of "why would I lie" here, because neither the orphans nor the court know the facts. From here we learn that migo can operate even without the evidentiary component of "why would I lie," through an additional mechanism called the power of a claim.
The distinction between migo in monetary cases and migo to exempt from an oath according to Rabbi Shimon Shkop
Rabbi Shimon Shkop concludes that migo involving brazenness does not exempt from an oath because it lacks the evidentiary dimension, but it can help in monetary law because the power of a claim is enough to confer a monetary win. He describes situations where there is only the power of a claim without "why would I lie," such as migo involving brazenness and migo for orphans, as opposed to a possible case of migo that has an evidentiary component without the power of a claim, such as a migo from a poor claim to a slightly less poor claim, presented in Tosafot on Ketubot 13a.
The Kehillot Yaakov: the power of a claim as a mechanism that turns the claimant into the one in possession
The Kehillot Yaakov explains that the power of a claim in migo is not evidence for the truth but a change in the status of possession, so that one who could have won with another claim is regarded as someone who could remain with the money without the court’s help, and therefore the burden of proof shifts to the other side. This explanation combines the conception of the one in possession as someone who does not need the court with the idea of migo as an alternative legal possibility sufficient to place the claimant in the position of the one in possession. According to this, migo involving brazenness does not help exempt from the oath of partial admission, because even without it the defendant is already in possession, and the Torah still imposes an oath even on one in possession, so only a migo with an evidentiary dimension could serve as a substitute for an oath.
Conclusion and further remarks
The text ends by referring the reader to further study in the Kehillot Yaakov and promising to return to the points in the next lecture. A question was raised about migo to extract money, and it was said in principle that migo to extract does not help, with a note that this will be discussed later. At the end there is also a technical matter about sending emails and correcting an address, including: "I sent it to you. M-I-C-K-Y; I wrote M-I-K-E-Y. Fine. I sent it at first, it bounced back. I sent it again."
Full Transcript
[Rabbi Michael Abraham] Okay, so just for the record, we’re beginning to deal with the subject of migo as an introduction to the first passage in the chapter. The example I want to start with is an example from tractate Bava Batra, the first source that appears on your sheet, but before I get into it, a few preliminaries. The Talmud there in Bava Batra deals with a debt claim. One person comes and claims from another a loan that he lent him. I want to present it in stages. The case that appears on your sheet is the third case. I want to precede it with two other cases that actually appear in the Talmud in a somewhat less focused way, so I didn’t bring them. First case: Reuven borrowed from Shimon a loan of one hundred shekels for a month. Fine. Shimon comes after two months and demands the loan from him, the money. Reuven says, "I repaid." "I repaid you yesterday, don’t you remember? I just repaid you." What’s the law in such a case? The burden of proof rests on the one who seeks to extract from another. Who is the extractor? Shimon. Right. Meaning, you want me to give you money; the money is with me; I’m the one in possession. Once I’m the one in possession, the burden of proof is on you. The one in possession has an advantage in monetary law, right? The burden of proof is on you. So if I claim, "I repaid," then you are not believed unless you bring proof. The burden of proof rests on the one who seeks to extract from another. That’s called being in possession. Maybe one sentence—fine, I’ll say one sentence about possession, and then we’ll move to the second and third cases. Why does the one in possession have an advantage? That’s not such a simple question. The Talmud brings a source for it from a verse, and then says it may also be simple reasoning: whoever is in pain goes to the doctor. Or in other words, the Talmud is basically saying that the plaintiff is the one who wants the court’s assistance. Right? He basically wants the court to take money from me and transfer it to him. If you want assistance from the court, give the court a reason to act. Why should the court take money from me if it sees no reason to do that? So please bring proof so that
[Speaker C] the court will have justification or a reason to act. Okay? Notice that what I just said is not on the evidentiary plane. It’s a procedural consideration. You understand what I’m saying? Stop me if there’s a problem. Meaning, it’s not exactly because the person holding the money is more likely to be right or less likely to be lying. The rule of the one in possession is not a rule of evidence. It belongs to legal procedure. Procedure means: a case opens, there is a plaintiff and a defendant. How does the procedure go? What’s the next step? He says, "Give me the money," and the other says, "I gave it to you." Okay, what now? Now the legal proceeding begins. So there are procedural rules; ordinary law also has procedural rules. Procedure says that the burden of proof rests on the plaintiff. Meaning, who now has to take the next step? The plaintiff. He has to present whatever evidence he has—document, witnesses, whatever—it doesn’t matter; if he has this or that evidence, he has to present it. All right? That’s procedure. But the rule that the burden of proof rests on the one who seeks to extract from another, or the advantage of the one in possession, also has an implication at the level of the ruling. It’s not just a procedural determination. Why? Because let’s say neither side has evidence. Neither the plaintiff nor the defendant. Now the court has to decide. I don’t know what happened here; I have no evidence; I don’t know who’s lying and who’s telling the truth; there was a loan, there was repayment, I know nothing. Okay, what do we do? Status quo—the one in possession. Why? Because if the burden of proof rests on the plaintiff and there is no proof, what does it mean that the burden rests on the plaintiff? It means that if you don’t give us, the judges, a reason to act, then we won’t act. Right? You didn’t carry the burden of proof—that is, you didn’t bring evidence—so we won’t act. And not acting means that the money remains with the one in possession. So the rule that the burden of proof rests on the one who seeks to extract from another is not just some procedural rule. It starts there, but it also has implications for the decision, because once you’ve established the procedure, in the end it also determines who wins when there is no evidence. And therefore in almost every place where you see the rule that the burden of proof rests on the one who seeks to extract from another, it isn’t brought in the context of procedure at all. It’s brought in the context of the ruling. When we say that the burden of proof rests on the one who seeks to extract from another, that is the rationale for why the defendant now won the case. It’s brought as the reasoning for a ruling in favor of the defendant, even though it is really a procedural rule—but its implication is that if the burden of proof is on you and you didn’t meet it, then no.
[Rabbi Michael Abraham] That’s the first remark. The second remark—everything we’re saying here is going to accompany us later on, so I’m deliberately doing this step by step, very orderly, so we don’t lose our hands and feet once it starts getting complicated. The one in possession also has—or at least so people claim—an evidentiary dimension to his possession. Until now I’ve spoken only about procedure. There is also an evidentiary dimension to possession. Why, why is there an evidentiary dimension to possession? So there is a rule that the Talmud states:
[Speaker E] There is a presumption that what is in a person’s possession is his. If the object is with me, there is a presumption that it is mine. Usually the objects with me are mine. Doesn’t that not apply in the case of a borrower?
[Speaker F] Meaning, in the case of a borrower we know for certain that at some point the object wasn’t with him.
[Rabbi Michael Abraham] Right, it could be that for a borrower it’s indeed a little different, but right now I’m giving a general introduction. That presumption is seemingly an evidentiary consideration, not a formal legal-procedural one—an evidentiary consideration. But it’s not so simple. Why? What is it based on? Seemingly it’s based on statistics. Meaning: do statistics on different objects in different homes, see how many belong to the homeowner and how many don’t, and you’ll find that most of the objects in the house belong to the homeowner, or most of his objects are with him.
[Rabbi Michael Abraham] There are two different majorities here, by the way, and both are true. Okay? Except that this says nothing about our case. This is a common statistical mistake. Why? Because in our case there is a dispute over the object. You claim that, say, you lent me—let’s say it’s an object and not money—you lent me
[Speaker C] the object, and I claim, what are you talking about, it’s mine—just for the sake of discussion. Okay? In that case, here we have an object that is disputed. The majority that says that in general most objects belong to the homeowner in whose house they are found is a majority that speaks about objects in general. But if we focus on the subgroup
[Rabbi Michael Abraham] of the objects over which there is a dispute, is it also true there that in most cases the plaintiff is the liar and the defendant is right? Why assume that? Are plaintiffs usually liars more than defendants are? Why assume such a thing? And so you have to be careful—this is Daniel Kahneman, right, he has all kinds of biases of this sort—because you take what looks like a statistical consideration, you have a statistic, a majority:
[Speaker C] most objects people have are with the homeowner. But you apply it to a biased subgroup, to a subgroup whose distribution may be different from the distribution of the general group. And that’s true in many places; you have to be careful. Therefore in this case, since both sides have a presumption of uprightness, right? I have no reason to assume this one is lying or that one is lying. Both have a presumption of uprightness. One of them is probably lying, but I don’t know which one. There is no a priori reason here to determine which of them is more likely to be the liar. Therefore in this case it actually seems that there is no rule that most objects belong to the defendant. Or in other words, there is no evidentiary dimension to possession. There is no evidentiary dimension to possession. The presumption that what is in a person’s possession is his is not a clarifying presumption. It is not an evidentiary presumption. Rather, what is it? It is a legal rule. It is a legal rule that says: we
[Rabbi Michael Abraham] give you a presumption regarding what is with you until proven otherwise. Again: the burden of proof rests on the one who seeks to extract from another. All right? We’ll see later that not only is this—meaning, on the one hand this is a legal rule and not an evidentiary rule—but on the other hand, what would you expect? Suppose there is a plaintiff and a defendant. The plaintiff has a migo in his favor. Right? For the sake of discussion, is migo a familiar term? I hope so. Go back? Migo means… well, you know what? I’ll stop. We’ll get there in a moment, I’ll explain what migo is, so there’s no point getting ahead of ourselves. Fine, I’ll come back to it. Okay? That’s the issue regarding possession. So there is an advantage to the one in possession. So I return—we spoke about the first case, right? We spoke about the first case: the person claims after the due date. The loan was for a month, and the person comes and demands the loan after two months. And I say to him, I repaid you yesterday, the other day, I repaid you after the due date.
[Rabbi Michael Abraham] No problem. I’m the one in possession; the burden of proof rests on the one who seeks to extract from another. Okay? But why does it seem to you that this is not evidence?
[Speaker G] The fact that something is with me—like my shirt now—nobody thinks right now that it isn’t mine by virtue of the fact that I’m wearing it. That’s not true.
[Rabbi Michael Abraham] If somebody comes and says, "That shirt is mine"—
[Speaker G] Right, but if
[Rabbi Michael Abraham] no one says anything, then certainly not. That’s the presumption that what is in a person’s possession is his.
[Speaker G] So that’s evidence that it belongs to me? No.
[Rabbi Michael Abraham] After all—
[Speaker E] That’s exactly the point. You’re applying statistics to a broad category. But once you focus on the relevant subgroup—the objects over which there is legal litigation—there it is no longer necessarily true that most of those who are right
[Rabbi Michael Abraham] are the defendants, or that in most cases the defendant is the one who is right. Both are truthful; both have a presumption of uprightness. The Talmud even says: there is a presumption that a person does not make a claim unless he has grounds. A person doesn’t just stir up commotion in court. If he files a claim, apparently there’s something to it.
[Rabbi Michael Abraham] There is even a side that gives some sort of advantage to the plaintiff, in a certain sense. Since the plaintiff
[Speaker G] comes and effectively undermines the original evidence—
[Rabbi Michael Abraham] even though it isn’t really original evidence. Exactly. Fine, and therefore now it is balanced. Why assume that I’m lying rather than you’re lying? Why? Because I’m the plaintiff? So what? I’m saying: if I don’t sue and it’s just a shirt, then obviously, no
[Speaker C] one will question that it’s yours. Most likely it’s yours. Even then it doesn’t have to be, but let’s say clearly, most likely it’s yours. But once I sue, I’ve focused our attention on those objects regarding which there is legal litigation. In that group, it isn’t certain that the defendant is right. Both have a presumption of uprightness. Therefore the presumption that what is in a person’s possession is his is also a legal rule and not an evidentiary rule. Okay?
[Rabbi Michael Abraham] This is an important point; we’ll see it later.
[Rabbi Michael Abraham] So in other words, possession, as I’m talking about it, is basically a legal rule. The advantage given to the defendant over the plaintiff—that is, the fact that we require the plaintiff to bring proof—is not because we have evidence that the defendant is right. It isn’t a statistical, probabilistic, or evidentiary question. It’s a matter of procedure, a matter of legal order. There’s a lot of logic to it.
[Speaker B] It’s not only procedure; it’s a legal rule. It’s not just procedure. What’s the difference?
[Rabbi Michael Abraham] It’s procedure that is a legal rule.
[Speaker B] It’s procedure—
[Rabbi Michael Abraham] procedure that projects onto the legal rule, as I said earlier. There is a rule in procedure, but it has the implication that if you didn’t meet the burden of proof, then I win the case. But that is a result of the procedural rule that the burden of proof rests on you. All right? Okay, so that’s the issue of possession.
[Rabbi Michael Abraham] You should know that there are certain cases where there isn’t even the presumption that what is in a person’s possession is his. For example, if there are goats wandering around and they happen to be in my yard, okay?
[Speaker C] I can’t claim that if they’re here then they’re probably mine, because goats are things that wander around. So even though, with things other than goats too—even with a chair—that claim is only a legal claim and not an evidentiary one, with goats I can’t even say it legally. All right?
[Speaker B] But—
[Rabbi Michael Abraham] but the dimension of possession as the default still exists even with goats. Meaning, one second, suppose I’m holding the goats. Somebody comes and claims these goats from me. There’s a similar case in the Talmud—not exactly this, but never mind. Somebody comes and claims these goats from me. So I say: I’m the one in possession. There is no presumption here that what is in a person’s possession is his, because goats wander around; they graze; right now they just happen to be in my yard. Okay? But the consideration still exists that says I don’t need the court. I’ll leave the goats with me, lock the gate, and they’ll stay in my yard. I don’t need the involvement of the court. The plaintiff wants the court to take the goats from me and transfer them to him. So if that’s the case, let him bring proof. So notice: even though the rule that what is in a person’s possession is his doesn’t apply here, possession still exists. Possession in the sense that if the court does nothing, I win. Right? That exists even with goats. Okay? So there are two dimensions here: possession, and the presumption that what is in a person’s possession is his, and both are legal rather than evidentiary. Okay? Now that was the first case. The second case? Yes.
[Rabbi Michael Abraham] The fact that there is
[Rabbi Michael Abraham] a difference between a shirt and goats and ordinary movables—doesn’t that
[Rabbi Michael Abraham] show that the gap is in reality, in the evidence, and not a legal gap? No, no. That’s what I’m saying. Because goats wander around, the legal rule that what is in a person’s possession is his is not said here. I don’t want to give you that advantage for wandering things. But with non-wandering things too, your advantage is only a legal advantage. But there there is order, because there is order. I don’t take something from a person just because somebody pounced on him. If it’s with him, it stays with him—bring proof. It’s just legal-social order, so that there be order. But it’s not because that is evidence that it’s yours. I’m saying again: look in the later authorities; there are later authorities who say this in the language of evidence. I’m saying here what I think. Okay. So that was the first case. The second case is when someone comes—the loan was for a month.
[Rabbi Michael Abraham] Someone comes after two weeks and claims the loan from me. I could have said to him, wait two weeks, and then I’ll pay you once the month is over. But I didn’t say that. I said, "I repaid you." What’s the law in such a case? Migo. Which migo? A migo that he could have claimed—
[Rabbi Michael Abraham] What to claim? She isn’t supposed to have it—are there certain points in her favor there? What could I have done?
[Rabbi Michael Abraham] I could have said to him, wait, wait another two weeks and then I’ll pay—so what? That doesn’t say anything.
[Speaker B] A person does not repay before the due date. Right.
[Rabbi Michael Abraham] In principle, here too it should have been that the burden of proof rests on the one who seeks to extract from another, right? I’m the one in possession, he is demanding money from me, the burden of proof rests on the one who seeks to extract from another. The Talmud says: not here. Why?
[Rabbi Michael Abraham] Because there is a presumption that a person does not repay before the due date. I can keep the money for a month—why would I get rid of it after two weeks? I have money for a month; I can do business with it in the meantime, I don’t know, right? Why would I return it after two weeks? It could be that a person repaid after two weeks; it’s not impossible. But it’s less likely. Since it’s less likely, you—I, when I say "I repaid," I’m not believed. Notice: I’m the one in possession. I’m holding the money, he is claiming the money from me. I said, "I repaid"—I’m not believed. Because there is a presumption that a person does not repay before the due date. Okay? Again, a presumption is not something that must be so. A presumption is the thing more likely to have happened.
[Speaker E] If I brought proof? Fine, then apparently I did repay. If I bring proof, then apparently I did repay within the time; that can happen. But in the absence of proof, the simple assumption is that I did not repay. Okay? Now here a not-simple question arose. Why? Because the Torah says, "By the mouth of two witnesses a matter shall stand."
[Rabbi Michael Abraham] In order to extract money from one in possession, you need two witnesses. Here there are no witnesses. I’m the one in possession, he brought no witnesses, and nevertheless he managed to take the money from me. Why? You can go in different directions with this; I’m not getting into all the details right now because for us this is only an illustrative passage. I’ll suggest one possibility, because it will simply serve us going forward. To explain it, I’ll move to a side case; I’ll go for a moment to another case. There is a dispute among later authorities—Pnei Yehoshua and Chazon Ish—about what happens if my ox gored your cow. You come and claim money from me, that I should pay you for the damage. I say: look, I guarded the ox properly and it broke out; I was under compulsion. According to Torah law, if the owner of the ox guarded it properly and is considered under compulsion, he is exempt from paying the damage.
[Rabbi Michael Abraham] That’s the rule, all right? We won’t get into why right now, but that’s the law. Now somebody comes and says, "Pay me." I say, "I guarded it properly." But I have no proof that I guarded it properly. I claim that I guarded it properly. The other person says, "I don’t think you guarded it properly. Bring proof that you guarded it properly." What’s the law in such a case? The later authorities disagree about this. Pnei Yehoshua argues that the burden of proof is on the plaintiff. The burden of proof is on the plaintiff. Why? The burden of proof rests on the one who seeks to extract from another, right? The plaintiff wants money from me. The burden of proof rests on the one who seeks to extract from another—bring proof. If you don’t bring proof, you won’t get the money. Chazon Ish argues that the burden of proof is on the damaged party—why? On the damager, sorry.
[Speaker I] Because he didn’t prove that he guarded it properly, so…
[Rabbi Michael Abraham] Why does he need to prove it? Let the other guy prove it. I’m the one in possession.
[Speaker F] No, because there is proof—you damaged me. You damaged my property; that’s the proof.
[Rabbi Michael Abraham] So what? That’s not proof of anything. If I was under compulsion, then it proves nothing.
[Speaker F] If I was under compulsion… no, so now you need to prove that you were under compulsion.
[Rabbi Michael Abraham] You’re raising the possibility that usually comes up in the later authorities. You’re saying that in fact the very fact that there was damage obligates me, and if I claim that I guarded it properly, that is an exempting defense.
[Speaker F] Yes, there’s no "I repaid," there’s no "I discharged the debt" here.
[Rabbi Michael Abraham] It’s an exempting defense. That’s how several later authorities argue; usually in the general lectures that’s how they explain Chazon Ish. But the problem is that Chazon Ish doesn’t say that. He says something else. Chazon Ish proposes a different explanation. He argues that really this is not an exempting defense; it is a condition of liability—whether the guarding was proper or not proper. Rather, what? If you claim that I guarded it—if I claim that I guarded it properly and nevertheless damage occurred, that is an implausible claim.
[Rabbi Michael Abraham] If you guarded it properly, damage isn’t supposed to happen.
[Speaker E] That’s what it means to guard it properly, as people normally guard. Okay? Therefore my claim that I guarded it properly and nevertheless the damage happened is an implausible claim. Chazon Ish says: once your claim is not
[Rabbi Michael Abraham] plausible, the burden of proof is on you.
[Rabbi Michael Abraham] because the presumption is in his favor. Now why is that—
[Rabbi Michael Abraham] that itself is already an interesting question. Why? After all, I’m the one in possession. The burden of proof rests on the one who seeks to extract from another.
[Speaker C] He has to bring proof in order to take from me, right? So what happened here? So perhaps one can say that there is some presumption saying that if someone guards, then damage doesn’t occur, and that presumption extracts money—but then the question returns again: but if money can only be extracted by witnesses, how does a presumption extract money? It could be that the explanation is that a presumption—we know the rule that a presumption without a claim is no presumption.
[Rabbi Michael Abraham] Meaning, if I’m holding something, there are a few meanings to that statement, but one of them is: if I’m holding something but I don’t explain why it’s mine, I’m just holding it, then the fact that I’m holding it won’t help. In order to enjoy the status of one in possession, I also need to explain. I say: this object is mine, I bought it, what do you want? That is a claim. If I just say, the object is with me, what do you want—so what if it’s with you? Everyone sees that it’s with you. It’s with you, but it’s mine.
[Speaker E] I can enjoy the preference given to the one in possession only if together with my possession I also make a claim. Okay? Chazon Ish says: but if your claim is an implausible claim, like "I guarded it properly and nevertheless damage occurred," then you are not called the one in possession. I’m saying this is an explanation I’m suggesting in Chazon Ish. Maybe also in the Ran. Wait, wait, one second, one second—I’m heading there. All right? What do we learn from this Chazon Ish, if I’m right in this explanation?
[Rabbi Michael Abraham] What Chazon Ish is basically
[Rabbi Michael Abraham] saying
[Rabbi Michael Abraham] is that possession does not mean only the physical holding of the object or the money over which the dispute exists. That is not necessarily what determines possession. If I have a claim that is implausible, then in that situation, even though I am
[Speaker E] physically holding this property or object or money, he will be the one in possession. The burden of proof will be placed on me, because I’m the one who will have to bring proof in order to claim that something implausible happened here. That’s a novelty. This novelty basically says that possession is not necessarily determined by the question of who is physically holding the object; he also has to have a plausible claim together with it. If he has a plausible claim, then he is the one in possession. But if his claim is implausible, then the burden of proof shifts from the plaintiff to me. Because if you want to make an implausible claim, then bring proof that it really exists. And what this basically means is that one who makes an implausible claim—the one who makes the more plausible claim, or the more significantly plausible one—becomes the one in possession, even though the object is with the other person.
[Rabbi Michael Abraham] Perhaps one could argue that the damager is indeed the one in possession of the object, but the injured party is the one in possession of the injury?
[Rabbi Michael Abraham] Of course, that’s what he said. Of course there was an injury, and now you want to exempt yourself. So I said: there are later authorities who explain it that way, and Chazon Ish does not explain it that way. Chazon Ish says the problem is that the claim is implausible. That’s it. If the claim were plausible, then even if it were an exempting defense, I would be exempt.
[Speaker E] Meaning, it’s not enough for him that it is an exempting defense; that’s not what he says there. All right?
[Rabbi Michael Abraham] So what do we learn from here?
[Speaker E] That one who makes an implausible claim, even if he is the one holding the object, is not considered the one in possession.
[Rabbi Michael Abraham] If that is so, then perhaps our case is like that too. Somebody comes and claims the debt from me after two weeks, when the loan was for a month, and I say, "I repaid." "I repaid" means sometime during those 14 days that passed. In other words, before the due date arrived. The Talmud says there is a presumption that a person does not repay before the due date. I asked: how does a presumption extract money?
[Rabbi Michael Abraham] In order to extract money you need two witnesses: "By the mouth of two witnesses a matter shall stand." I say no: here the presumption doesn’t extract money; the presumption turns him into the one in possession. Now in order for me to take from him, I have to bring proof.
[Speaker E] The presumption didn’t remove money from me as the one in possession; it simply determines that I’m just not the one in possession. He is the one in possession. And now I’m the one who has to bring proof in order to win. All right? One possible explanation. There are others, but for our purposes I need this simply for what comes next, so I presented it. So that was the second case.
[Rabbi Michael Abraham] First case, notice: the claim was after two months; I said, "I repaid after two months"; I’m the one in possession; the burden of proof is on him. If the claim was within two weeks and I say, "I repaid," then there is a presumption that a person does not repay before the due date, I’m not believed, and I have to pay. The third case, which is what the Talmud is dealing with—look at the first source on your sheet.
[Speaker E] They asked: if he claimed from him after the due date and he said to him, "I repaid you within the due date," what is the law? What’s the scenario? He claimed from him after two months. The person says, "I repaid two weeks after the loan." Not now—one and a half months ago. All right? He could have said, "I repaid today," and then he would have won, right? That’s the first case. But he doesn’t say, "I repaid today"; he says, "I repaid after two weeks," like in the second case. What is the difference between the second case and the third case? When does it happen? The third case happens after two months. What does that mean? That in principle he had the option of saying, "I repaid now," and then he would have won. The time—it had already passed the due date. All right? That’s the difference. The third case is where the event, the claim, takes place two months after the story, meaning after the repayment date, but I volunteer and say, "I repaid after two weeks," within the due date.
[Speaker I] Because since it’s implausible that a person repays before the due date, meaning that someone would claim he repaid before the due date even though he could benefit from the money in the meantime, so…
[Speaker E] That’s the presumption. Okay. Now the question is what we do with that. So the Talmud says—let’s read the Talmud.
[Rabbi Michael Abraham] Do we say that in a place where there is a presumption, we still say "why would I lie"? Or perhaps in a place where there is a presumption, we do not say "why would I lie"? The Talmud is saying this: first of all, against him there is the presumption that a person does not repay before the due date. Right? You are making an implausible claim: "I repaid after two weeks." A person does not repay before the due date. Okay. On the other hand, you have a migo. Now I’ll explain what migo is. They asked before what migo is. Migo means: I am now making a weak claim, but I had the option of making a better claim and winning. I didn’t make it; instead I’m making a weak claim. The fact that I had the option of making a better claim serves to strengthen my weaker claim. Why? In a moment we’ll see. All right? But it is a strengthening. On that the Talmud asks here: is that strengthening enough to overcome the presumption that a person does not repay before the due date? The migo is in my favor, and the presumption that a person does not repay before the due date is against me. So the question is which one prevails. That’s what it is—it’s an unresolved doubt in the Talmud. All right?
[Rabbi Michael Abraham] Is migo on the level of legal procedure and not evidence, yes?
[Rabbi Michael Abraham] No, migo is—
[Rabbi Michael Abraham] Evidence.
[Rabbi Michael Abraham] In just a moment we'll see. A migo, in the simple sense, is evidence. Why? Let's see how a migo works. A migo basically says this: I claim that I repaid within the term. That's what I'm claiming in the religious court. But I could have claimed that I repaid after the term, which is a reasonable claim, and then I would win. Right? That's the first case. If I claim I repaid after the term, I win.
[Speaker E] But I claimed that I repaid within the term. Seemingly I shouldn't win, because someone who claims he repaid within the term has a presumption against him. But here it's a situation where I'm making a weak claim that on its own I can't win with,
[Speaker C] but I have the option of making a good claim. Okay? That's called migo. Literally, migo means "out of" or "since." Since I could have made a better claim, they believe me even on the inferior claim. Why? How does that miracle happen?
[Rabbi Michael Abraham] You could also say it afterward.
[Speaker C] What do you mean, afterward?
[Rabbi Michael Abraham] For our purposes, I make a weak claim, they answer the weak claim, and afterward you retract?
[Rabbi Michael Abraham] You say, so I lied then and now I'm making a different claim? There's no such thing. You don't need to…
[Rabbi Michael Abraham] No, I didn't lie. You could have lied on the spot, but you didn't say it.
[Rabbi Michael Abraham] You didn't say it, so this isn't "after the fact" now. I say, "I repaid within the term," and I tell you: I could have claimed that I repaid after the term. Believe me.
[Rabbi Michael Abraham] But now if he knows
[Speaker F] that this supports him, he can lie…
[Rabbi Michael Abraham] Wait, wait, wait. We're getting there. Those are the questions, the famous questions about migo. We'll answer them, but slowly, slowly. Okay?
[Speaker F] But isn't that still weaker than if he had said, "I repaid you that very day"? To claim migo, I mean, to say "I repaid you within the term," even if I count migo, that's not stronger than just saying simply, "I repaid you today."
[Rabbi Michael Abraham] Wait. Maybe that'll be the answer. In a moment… slowly, slowly. Okay. A migo—why, how does it work? Why does the fact that I could have made a better claim give me force or greater credibility for this weaker claim? So look at the second source in front of you.
[Speaker E] I brought an example here, the Rashba in a responsum: "Wherever there is a migo, we believe that the truth is as he claims, that the truth is with him. For had he come to lie, he could have made a different false claim that would have been believed." A person comes along like this—look. A liar has the most options, right? He has no restraints. He can claim whatever he invents. Okay? He's a liar. Now, if you assume I'm a liar, why did I choose the worse claim? I could have chosen the better claim. Right? After all, a liar can do whatever he wants. Someone who speaks the truth has only one option. He can only say what really happened. Right? But someone who lies can choose whatever he wants. Now, if as a liar I choose a worse claim, you're saying to me: I'm not only a liar, I'm also an idiot. So with all due respect, that's already excessive suspicion. Fine, maybe I'm a liar, but you think I'm also an idiot? Meaning, if I were a liar, I would choose the better claim. Okay? So believe me that I'm not a liar. Apparently I'm telling the truth. And why am I saying the inferior claim? Because that's the truth. After all, if the truth is that I repaid within the term, then I repaid. At the end of the day I repaid, and I'm exempt. That's the idea of migo in the simple understanding. Why would he lie? He'd lie better. Exactly. And in the language of the Talmud, this consideration is called "why would I lie?" That's what we just read in the Talmud, right? "In a place of presumption, do we say 'why would I lie,' or perhaps do we not say 'why would I lie'?" "Why would I lie" is migo. Exactly. "Why would I lie" is this consideration that says: why would I lie in this way, when if I wanted to lie, I would lie better? In short, that's called "why would I lie." Okay?
[Speaker F] But still, it's still weaker than simply where he has no case at all. If he says, "I repaid you yesterday" or "two months ago," then he has no case at all. I understand. I mean, I'm saying, even if I count migo, even if I take into account that migo works, it's still preferable for the liar to say, "I repaid you yesterday."
[Rabbi Michael Abraham] So what? That's why he has a migo.
[Speaker F] Right, that's exactly what I'm saying.
[Rabbi Michael Abraham] He's practically killing himself and making the worse claim, even though despite the fact that he has a migo, it's still a worse claim, and nevertheless he makes it.
[Speaker E] So you see he's not a liar.
[Speaker F] I'm saying
[Rabbi Michael Abraham] that also
[Speaker E] here, the owner of the money can bring evidence, so… what?
[Speaker B] Yes, let him bring evidence, everything's fine,
[Rabbi Michael Abraham] but I'm saying that in the absence of evidence, I'll win. We said this has implications for "the burden of proof is on the one seeking to extract from another," when people didn't bring evidence. Then you rule in favor of the one who didn't have to bring evidence. Okay?
[Rabbi Michael Abraham] So that's what's called in the language of the Talmud, "why would I lie?" Now, a first comment, as I said earlier: with all due respect to me being a liar, don't make me into an idiot. Right? That's basically what's at the foundation of migo. Now, what if an idiot comes before us?
[Speaker B] How do you prove he's an idiot?
[Rabbi Michael Abraham] I know—he's ignorant, he understands nothing.
[Rabbi Michael Abraham] A well-known fool.
[Speaker B] So can you still say, "why would I lie"?
[Rabbi Michael Abraham] He doesn't know which claim is better and which is worse; he's ignorant, he doesn't understand. Do we believe him on the claim "I repaid within the term" by means of a migo that if he had wanted to lie, he would have lied with a better claim? That's the question asked by Netivot HaMishpat. He asks: if this really is the consideration behind migo, then I wouldn't suggest such a consideration for an ignoramus. He didn't think of a better claim; he didn't know it was better. He just said the first lie that popped into his head: "What do you mean, I repaid you ages ago already!"—without understanding that "ages ago" is a worse claim than saying, "I repaid you yesterday." All right? For whatever reason. His answer to that—we'll see
[Rabbi Michael Abraham] later that it isn't clear we even need this answer—but Netivot HaMishpat says there are no fools in court.
[Speaker C] There are no fools in court. What does that mean? Especially not liars. If someone decides to lie—especially if someone decides to lie—but even if he doesn't decide to lie, he investigates. A person who comes to court, and he's not a lawyer, not a jurist, so he goes to consult a legal expert, right? He goes to check which claims—where am I believed, what is worth presenting. Not to go lie, but what the options are, what force I have behind each claim I might make. Right? He goes to check.
[Speaker F] But in the middle of the conversation…
[Speaker C] Not in the middle of the conversation—beforehand, he prepares himself. He's being sued in religious court; they summon him to religious court. Before he goes, he gets the statement of claim, and he goes to consult. So if he goes to consult,
[Rabbi Michael Abraham] then he'll find Torah scholars and they'll tell him: this is a good claim, this is a bad claim, and that's that. Therefore, says Netivot, the simple assumption is that a person who comes to court knows. There are no fools. And therefore we grant every person a migo on that basis. That's one argument. Fine? Later we'll see another explanation again, which may make this point unnecessary; maybe I'll suggest another point. In principle, Maimonides writes in the Laws of the Sanhedrin—there's a passage at the beginning of chapter 20 and a passage at the beginning of chapter 24. Maimonides writes that in criminal law, in punishment, in capital cases and lashes, only two witnesses count. No other evidence helps. In monetary law, although "a matter shall be established by two witnesses," other forms of evidence are also effective. But not only are other forms of evidence effective—the religious court can rule simply according to what seems to it. However it appears to them is the truth. Not whatever they feel like, but what appears to them to be the truth. Meaning, in monetary law you can rule based on your own assessment. The rules of evidence are not binding. Fine? That's what Maimonides writes. Today this is no longer practiced, and the source is really the Rif. This is no longer practiced after the Jewish people were dispersed and so on—it doesn't matter. The halakhic authorities say that today this rule no longer exists; there is the law of a suspicious case. If you feel that the evidence leads
[Rabbi Michael Abraham] to an incorrect judgment, you can say, "I withdraw; something here smells bad; I'm not willing to adjudicate this case." But you cannot rule positively against the evidence, or just because that's how it seems to you. That can no longer be done today. But in principle, yes, it could be done.
[Rabbi Michael Abraham] In the time of the Talmud, it could be done. Why am I saying this? Because then it may really be that the law of migo is entrusted to the judges. In a place where they see a manipulative person, or I don't know, a naive person, maybe they won't give him a migo. In a place where they see someone who did his homework, who knows what he's talking about, maybe they will believe him with a migo. And then it may be that the rule of migo is not a binding rule in monetary law, at least. Migo appears not only in monetary law. But in monetary law, migo is not necessarily a binding rule; it may be just another tool in the judges' toolbox, and they should use it according to their assessment. They would use this too. So that's also a possible option, maybe. But straightforwardly, almost nobody assumes that. People assume that migo has its own rules, and whatever the rules of migo say, that's what the judges are supposed to do. Okay, now let's take a real-life example. Migo is not some halakhic legal invention. Migo comes up in every area of life. A child comes late to school. The principal asks him, "Tell me, were you late today?" "Yes, but only by an hour." Fine? He has a migo. He could have said, "I wasn't late at all." Right? She thought he was three hours late. Fine? He has a migo. He could have said, "I wasn't late at all." Yes, but it's unpleasant for you to lie so blatantly. So you say, "I was a little late, I didn't notice—an hour, two hours," because afterward you can always explain it away. So it's easier for you to lie that way, right?
[Speaker E] But in principle you have a migo here. And in general, migo is a reason to believe someone, not only in halakhic legal contexts; it's a logical consideration. Okay? But here, really, as I said, there is an additional comment.
[Rabbi Michael Abraham] It could be that here specifically I would not give him the force of migo. Why? Because the fact that he chose to say, "I was late by an hour," and not to deny it completely and say, "I wasn't late at all," has another explanation: that lie is preferable, less brazen, less insolent. That's what's called a brazen migo. A brazen migo means that if the alternative claim that
[Rabbi Michael Abraham] I could have made is a brazen claim, then even though if I had made it, it would have been a good claim and I would have won, and I made a worse claim with which I don't win, so I say, fine, look, I had a better claim, believe me by migo. No. Why do you want us to believe you by migo? Because if you were lying, you would have chosen that claim. But that's not true. The reason you didn't choose that claim is because it was brazen and you weren't comfortable being so brazen, not because you're such a truth-teller. Therefore, a brazen migo is a problematic migo. Okay? Are you with me? When the alternative claim is a brazen claim, it can't give force to the weaker claim. Why? Because I have an alternative explanation for why you chose the weaker claim—not because you're such a truth-teller, but because it's a better lie, more comfortable for you. Okay. By the way, in a place where both claims are brazen, both the alternative and the current one,
[Rabbi Michael Abraham] then of course it's a full-fledged migo. Why? Because only the gap in the level of brazenness ruins the migo, but if both claims are brazen then it's a full-fledged migo, right? That's clear. Okay, so now let's say someone claims, "I repaid within the term." Then in principle that's a brazen migo. Why? Because he could have said, "I repaid after the term," and been believed. To say to a person who did you a favor and gave you a loan—to lie to him to his face and say, "I repaid you"—that's no small brazenness, right? Right, but to say to him, "I repaid within the term," is also brazen. I'm still saying that I repaid him when that's not the truth, right? Since in this case both claims are equally brazen, this is not called a brazen migo; it's a regular migo.
[Speaker E] A brazen migo is only where the alternative claim is more brazen, or involves more insolence, than the weaker claim that I'm making. Okay? In such a case the migo is problematic. What do you do with it? We'll see in a moment.
[Speaker B] Yes. Maybe there you wouldn't believe him and would say there's "no migo," because saying "I wasn't late at all" is more brazen.
[Rabbi Michael Abraham] Right, but he could
[Speaker B] have said, "I was late by half an hour."
[Rabbi Michael Abraham] Okay, fine, it's only an example, leave it—alternatively. I'm only trying to illustrate the principle; I don't care right now what to do in that actual case. That's a different question. Fine? Okay, just one more comment: a brazen migo
[Rabbi Michael Abraham] in the Talmud—and this matters for us later—the halakhic definition of a brazen migo is usually in a situation where I'm lying in front of someone who knows the truth, or even someone who did me a favor, as in a loan. There is a dispute between Rashi and Tosafot in Bava Kamma 107 about this, but it's one of those two. The case of the principal is neither of them.
[Rabbi Michael Abraham] She didn't do
[Rabbi Michael Abraham] me a favor, and she also doesn't know what the truth is. So yes, it's a little less pleasant to lie outright, and it's preferable to lie halfway, but that is not called a brazen migo in the Talmudic sense. I'm only saying this to complete the picture. A brazen migo in the Talmudic sense is either that I'm lying to someone to his face when he knows the truth—that is the view of Tosafot, the view of Rashi—sorry, that's the view of Rashi. The view of Tosafot, I think—I honestly no longer remember who says what—the other view is lying to someone who did me a favor. Where's the difference? For example, between a loan and a rental. Fine? In a loan, he did me a favor. To lie to him to his face and say, "There was no loan at all," is a brazen lie. Right? But if someone deposited an item with me for paid safekeeping, fine? That's a job. It's not that he did me a favor. We made a deal. I watch it for him and he pays me. Okay? Now I say, "You never deposited anything with me at all." Then I'm lying to him to his face, but he didn't do me a favor. Fine?
[Rabbi Michael Abraham] Now, if he knows the truth, that would be a brazen migo. But if he doesn't know the truth and I didn't lie to his face, then no.
[Rabbi Michael Abraham] What does it mean, he knows the truth? I mean, who determines that?
[Rabbi Michael Abraham] If he knew the truth—the person—the religious court doesn't know the truth, so I can lie, after all, to whomever I want. Convincing the judges—that he knows the truth doesn't matter. But still, to lie to his face when he knows the truth, even though I'm speaking to the judges, that's called a brazen migo.
[Speaker I] But what does it mean, he knows the truth? The religious court—the religious court isn't aware whether he knows the truth or doesn't know the truth.
[Rabbi Michael Abraham] Right, no, the religious court—
[Speaker I] the religious court is aware.
[Rabbi Michael Abraham] because the religious court knows that if it was repaid, then I know it was repaid. That, the religious court knows. It doesn't know what happened, but it knows that on the possibility that it was repaid and I say that I didn't repay, that would be insolence. Right? Sorry—the other way around: on the possibility that it wasn't repaid and I say, "I repaid," that's insolence. Okay, now the later authorities—up to here this is regular migo. The later authorities—and this has already been going on for several generations of later authorities, but in the last one or two generations it has flourished even more—prove from several places that migo has another element, besides the consideration of "why would I lie" that I've explained until now. Before I bring it, how can one prove such a thing? If I find a situation where the consideration of "why would I lie" doesn't exist—we'll try to make that argument and it won't work there for some reason; we'll soon see. But the migo will still have legal weight. Then that means there's something else in migo, right? Besides this reasoning of "why would I lie." How could such a situation exist? One situation is a brazen migo, what I just explained. What is a brazen migo? I make claim A, which is a weak claim. I could have made claim B, which is a strong claim, and I would have won the case, but claim B is brazen. Right? That's a brazen migo. What happens in a brazen migo? The consideration of "why would I lie" doesn't exist, right? Because what's the consideration of "why would I lie"? It says, believe me that I'm telling the truth, because if I were lying, I would choose the best possible lie, right?
[Speaker C] Therefore it's obvious that I'm not lying, but telling the truth. So the judges say to him: what are you talking about? What are you talking about? The reason you didn't choose that claim, even though it's better, is not because you're righteous and a truth-teller; it's because you weren't comfortable being so brazen. But that doesn't mean you're telling the truth.
[Rabbi Michael Abraham] That means that the consideration of "why would I lie" does not
[Rabbi Michael Abraham] exist in a brazen migo.
[Speaker E] in a brazen migo.
[Speaker B] But in several places in the Talmud we see
[Speaker E] that a brazen migo is effective.
[Rabbi Michael Abraham] There are places where it is, and places where it isn't.
[Rabbi Michael Abraham] How can that be?
[Speaker E] There is no
[Speaker J] migo here; a brazen migo is
[Speaker G] basically
[Speaker J] not really a migo, because the consideration isn't there that if I wanted to lie, I would lie better. So you see that there is something more in migo besides the consideration of "why would I lie." The later authorities call this "strength of claim" or "strength of credibility"; there are various expressions in the later authorities. I'll explain that in a moment.
[Speaker G] Another example of this idea is on your page in the novellae of Rabbi Shimon Shkop. We'll just read a passage relevant to our matter. Let's start with the Talmud itself, actually, the third source in front of you, the Talmud in Bava Metzia: "Rabba said: Why did the Torah say that one who admits part of the claim must swear?" There is an oath for partial admission; this is learned
[Speaker J] from "for this is it."
[Rabbi Michael Abraham] If someone claims that I owe him one hundred shekels and I admit to fifty, I say: I owe you fifty, and the other fifty I already paid. Okay? In that situation I have to swear that I owe only fifty, and that the other fifty I don’t owe. Yes, but if he’s a liar… wait, wait, that’s the law, okay? Now Rabbah asks about this: why is the person obligated to take an oath? Why does the Torah require an oath? So he says: "There is a presumption that a person does not brazenly confront his creditor, and really he would like to deny the whole thing, but the reason he doesn’t deny it is because a person does not brazenly confront his creditor." What does that mean? Rashi explains it differently; I brought here Tosafot’s explanation, that’s the fourth source you have. Tosafot explains the Talmudic passage this way: meaning, he should be believed by virtue of a migo. What does Rabbah mean, that is, what is Rabbah asking? First of all, Rabbah’s question—what is he asking? Rabbah asks why the Torah obligates someone who admits part of a claim to swear. He’s not just asking generally why; he’s asking why you don’t exempt him—he has a migo. What’s the migo? It would exempt him, because he could have denied everything entirely, right? Not admit half, but deny everything completely. Rabbah says no, he can’t. Why? Because that is a migo of brazenness. A migo of brazenness. If he had denied everything, after all the person knows that he owes him—the man did me a favor and I tell him, forget it, it never happened, I owe you nothing—that’s a migo of brazenness, right? That’s more brazen than saying, I owe you half. That too is a bit rude, but this is more so; the difference is what matters. Once it’s a migo of brazenness, that migo cannot exempt him from the oath, and therefore the Torah obligates him to swear. That’s how Tosafot explains the Talmud here. Okay? There are some other explanations, but that’s how Tosafot explains it, and that’s the accepted explanation among the medieval authorities (Rishonim). Okay?
About this Rabbi Shimon says—look at source five—"and regarding Jewish law, the halakhic decisors said here that we do not invoke a migo of brazenness to exempt from an oath." That’s what he learns from the Talmud here and from Tosafot here, right? He has a migo of brazenness. That migo really should have exempted him from the oath of partial admission, but since it’s a migo of brazenness, he is not exempt, and the Torah requires him to swear. So we see that a migo of brazenness does not help exempt from an oath, right? A migo of brazenness is interpreted here to some extent like a weak claim, as though saying: I don’t owe you. Right. You don’t have a migo, you have nothing, you just have an ordinary weak claim. You mean to say that saying I shouldn’t have to swear would be like a migo of brazenness with an oath? I didn’t understand. If the migo of brazenness is a weak claim, like someone saying: I don’t owe you any money at all. No, "I don’t owe you any money at all" is a very strong claim—but an insolent one. Notice, with a migo of brazenness there’s a paradox. If you actually make the brazen claim, then you are ultra-credible, because the fact that the claim is brazen proves that if you say it, it’s probably true. It’s the opposite of migo. Exactly. If you make the brazen claim, then the fact that it is brazen works in your favor, because to assume that you are lying here—and with such an outrageous lie—isn’t plausible, so apparently you’re telling the truth. But when I use the brazen claim as a migo, I’m making a weaker claim. Yet the stronger claim I want to lean on and say "I could have made it" is a brazen claim, and that brazenness is דווקא what hurts me here. If I had actually made it, its brazenness would have strengthened my claim. But if I don’t make it and only want to rely on it as a migo-claim, then the brazenness in it actually gets in my way. Okay? It’s a kind of parallel thing.
What? That means it’s something parallel, meaning it’s hypothetical—I could have made that claim. You couldn’t, because that would have been outrageous, so no, so you didn’t want to make it. Which means there’s another explanation; it doesn’t mean that you didn’t think of it. Right. Right.
So Rabbi Shimon says: from this Tosafot and from the other medieval authorities (Rishonim) on this Talmudic passage, from several of them here, we see that a migo of brazenness does not exempt from an oath, right? In partial admission there is a migo: he could have denied everything. But it’s a migo of brazenness, and therefore that migo cannot exempt him from the oath of partial admission, and the Torah requires him to swear that oath despite the fact that he has a migo. Because it’s a migo of brazenness, and a migo of brazenness does not exempt from an oath. Okay?
Rabbi Shimon continues and says: but regarding exemption and monetary entitlement, we do invoke a migo of brazenness. When we are dealing with monetary law, not with laws about exemption from an oath. There the question is whether to exempt him from an oath or not; a migo of brazenness does not exempt from an oath. But in monetary matters you can prevail even with a migo of brazenness. Okay? That’s his claim.
Now he brings a proof from the sugya of goats, not important, that’s the goats I mentioned earlier, I don’t care about that right now, I don’t want to get into it there. But that’s his argument. And then he asks: why? Why? After all there isn’t really any migo here. It’s not a migo. A migo of brazenness is just words; it isn’t a migo. The consideration of "why would I lie"—that if I wanted to lie, I would have lied better—that consideration isn’t present in a migo of brazenness, right? That consideration isn’t there. So in fact you don’t have a migo. What is a migo of brazenness? A migo of brazenness is not a migo. So how can it be that in monetary law it does help? For an oath it doesn’t help, but in monetary law it does—why? After all you don’t have any migo at all.
And he says as follows: "In my humble opinion, it appears based on what we explained elsewhere regarding migo, that migo serves two functions." There are two things in migo. One: simply to clarify the claimant’s argument, that he is not lying, for if he had wanted to lie he would have claimed something else that was better for him. If he had wanted to lie, he would have chosen the claim most favorable to him. Right? That’s the "why would I lie" principle. Two: to strengthen the claimant’s presumption, since he had the power to prevail in another way, the matter is more firmly in his possession. What does that mean? This is what is called the strength of a claim or the strength of credibility: if I could have made an alternative claim and prevailed through it, that strengthens my current claim, which is weak in itself, and gives me the power to prevail through it, independently of "why would I lie." Even in a place where I can’t say, "if I wanted to lie I would have lied better," the very fact that I have the option of making an alternative claim and prevailing strengthens the weak claim, even where there is no "why would I lie." I haven’t yet explained why. It sounds like procedure. Right, I haven’t explained why yet; we’ll see in a moment. But first let’s see the proof.
Who told him that it is really so? Look, he has a nice proof. Look at the proof he brings: "And we will bring one example of this: we find that we advance on behalf of orphans a claim by which their father could have prevailed through a migo, such as ‘I returned it’ with a migo of ‘it was lost through unavoidable circumstances,’ and similarly in the case of a three-year possession presumption," and so on. What does that mean?
Suppose someone deposited a cow with me for safekeeping. Now he comes and demands: return the cow I gave you. So I say: I returned it to you. Fine? So I have a migo. Why? In principle "I returned it" is a weak claim; I’m not believed. He deposited it with me, so now prove that you returned it. You admit it was deposited with you—prove that you returned it. But I have a migo. What’s the migo? I could have said: it was lost through unavoidable circumstances. Say I’m a paid guardian, who is exempt in cases of unavoidable circumstances. It was lost through unavoidable circumstances—the cow burned up. Fine? Now nobody could know that; it happened in my cowshed, in my yard, no one could know about it. I can always say that, and that’s that. Okay?
Now what happens? A family disaster occurred. I died. Fine? Now that cow is among my heirs, together with all the rest of the property I left them. Now the claimant comes and sues my heirs: return the cow I deposited with your father. The heirs don’t know what happened, right? They don’t know. Is there a cow? Isn’t there a cow? Where is the cow? What cow? We don’t see any cow here. So pay up! I gave a cow and I didn’t get it back. So the heirs say: we don’t know, there’s no cow, maybe our father returned it to you? We don’t know. What happens in that situation?
In principle, in such a case the claimant would win. But because the sages feared that once a person dies, everyone and his wife would pounce on the heirs with all sorts of baseless claims—because the heirs don’t know what happened there—and drain all their money, what do we do? The court advances claims on behalf of the orphans. The court advances claims for the orphans and puts arguments in their mouths that they themselves do not make. The court argues on their behalf. The court will say in place of the orphans: the father returned it. The court does not know that the father returned it, and the orphans don’t know that the father returned it either. But because the orphans are helpless and anyone can pounce on them, the court will argue for them: the father returned it. What does that mean? It doesn’t mean we know the father returned it. It means the burden of proof is on the claimant. If you bring proof, you’ll get the cow, but you have to bring proof. You can’t say that since these heirs have no claim, we advance a claim for them—we protect them. Okay? That’s called: we advance claims for orphans.
But why do we advance for the orphans specifically the claim "I returned it" and not "it was lost through unavoidable circumstances"? Because "it was lost through unavoidable circumstances" is an uncommon claim. We do not advance uncommon claims for orphans. We advance for orphans a claim that their father likely would have made. A claim that the cow burned up is relatively rare. So that’s not advanced—uncommon claims are not advanced. Fine, that’s given, okay?
Now Rabbi Shimon Kop says there is something very problematic here. If the father had said "I returned it," he would have been believed. Why? The claim is a weak claim, but he has a migo that he could have said "it was lost through unavoidable circumstances." Right? But now we are arguing on behalf of the orphans that the father returned it. The claim "I returned it" is a weak claim. Why weak? Because I admit it was deposited with me and I have no proof that I returned it. What you wanted to say earlier about the damage. The same principle applies here—deposit and guardianship, a loan? What he wanted to say about damage, sorry, not a loan—what you wanted to say about damage, where there was damage and I’m trying to exempt myself. So here too it’s the same thing. Leave aside "within the term" and all that; after the term, everything is after the term. Fine?
We don’t advance the claim "it was lost through unavoidable circumstances" for orphans because it’s uncommon. We advance for them "I returned it." But "I returned it" without "it was lost through unavoidable circumstances" does not help. Because all "I returned it" helps only because of the migo of "it was lost through unavoidable circumstances." Now the orphans don’t have the migo of "it was lost through unavoidable circumstances." Why not? Because they weren’t subject to unavoidable circumstances? No—the claim of "it was lost through unavoidable circumstances" is not advanced for the orphans because it’s uncommon. I advance for them "he returned it," not "it was lost through unavoidable circumstances." But "he returned it" with a migo of "it was lost through unavoidable circumstances" also won’t work for the orphans. Why not? Because what is migo? Migo says: believe me that I’m not lying, because if I had wanted to lie, I would have chosen that other claim. But the orphans know nothing; they are neither lying nor telling the truth, and the court knows nothing either. There’s no point in even beginning to discuss the question, "believe me that I’m not lying, because if I were lying I would have chosen a different lie." Nobody knows anything. So the consideration of migo is irrelevant when we’re dealing with orphans, right? And nevertheless the Talmud says that we advance for the orphans the claim "I returned it," and they are believed. How can that be? After all, the claim "I returned it" is not enough to prevail. If the father himself had said "I returned it," he would not have prevailed; only by virtue of the migo of "it was lost through unavoidable circumstances" would he prevail. And the orphans don’t have the migo. So how do they prevail?
That same claim that the court established that it advances in their name—basically the whole point of the court’s claim on their behalf is to place the burden of proof on the claimant. No, fine, but "I returned it" is a weak claim. Even if the father had said "I returned it," he would not have been believed. He would not have been believed. You’re just pushing it one step further. What does "pushing it further" mean? A migo is either you have one or you don’t; here there isn’t really any proof from migo. If the father had said "I returned it," he would have had support through the migo and then he would have prevailed. For the orphans I claim "I returned it," but they have no support from migo. So it’s just an ordinary claim of "I returned it." But the claim "I returned it" without supporting evidence doesn’t help.
Wait—what claim has the migo? The claim "I returned it," with the migo of "it was lost through unavoidable circumstances." Ah, I didn’t understand. He could have said "I returned it," and he would have been believed even though it’s a weak claim, because he could have said "it was lost through unavoidable circumstances." And if the orphans had said "our father returned it," not the court? If they know, if they… if they knew and claimed that? That’s something else; then they also have a migo. I’m talking about when the court claims it for them. Okay? And the Talmud says that the court claims it for them. So Rabbi Shimon asks: what do you mean the court claims it for them? The court claiming "I returned it" for them is not enough; you need proof in order to prevail with the claim "I returned it," and the proof of migo the orphans do not have. They cannot say, "believe us that we are not lying, because if we were lying we would choose a better claim."
When the father makes the claim, that’s during the father’s lifetime. A little, yes, but if the father makes the claim, then there really was proof. But the father did not make the claim, and there is no proof here. We can’t invent things. We can put into their mouths what the father would have said, but if the father would also have brought two witnesses, would we say, ah, the orphans also brought two witnesses? I don’t know whether the father had two witnesses. If he had brought them, then he would have had them. Likewise, if he had made the claim, then he would have had a migo. Maybe he would not have said "I returned it"—maybe he would have admitted it and returned the cow. Who says otherwise? You don’t know. Right. What is the basis?
So Rabbi Shimon says: we see from here that even though there is no consideration of "why would I lie," nevertheless the orphans prevail. Why? Because they have a migo of claim-strength. The fact that there is an alternative claim by which one could prevail is itself enough to strengthen the weak claim—not because of the consideration that if I had wanted to lie I would have lied better. That does not exist with orphans. But clearly, if the orphans were to say "it was lost through unavoidable circumstances," they would prevail, right? That is clear. Meaning, there is here an available route to prevail. Once there is a route to prevail, that is enough for me to prevail even with the weaker claim. This is what is called a migo of claim-strength.
But if the court advances the claim for them from the outset, then you don’t enter that at all, so what’s the point? No, why not? The court advances "I returned it," not "it was lost through unavoidable circumstances." Right, so how can you say they have a claim if from the start they don’t know? Because in principle they could have prevailed with the claim "it was lost through unavoidable circumstances." They don’t make that claim and they can’t make it, but they could have prevailed by means of the claim "it was lost through unavoidable circumstances." Once you have the basic, hypothetical option of prevailing with another claim, that strengthens your current claim. Not because of this explanatory consideration that if I had wanted to lie I would have chosen the best lie, because that does not exist with orphans. That is exactly what he proves from this. If in the case of orphans we see that the migo helps even though the "why would I lie" consideration isn’t there, that means there is something more in migo besides that consideration. This migo is some kind of magic, where the power that my best claim gives me is the power available to me even if I do not make it and instead make a worse claim. Some kind of miracle. Okay? Even though it’s not based on "if I wanted to lie," but on something else. This is what Rabbi Shimon calls claim-strength.
But what does the court… what does it mean? In any case, from the court I prove it. Right. In any case, there are two mechanisms in migo. One mechanism is evidentiary: if I wanted to lie, I would have lied better. The second mechanism is formal: if I have an option to prevail with a better claim, then I prevail even with a worse claim. Like procedural law. We’ll see in a moment, I’ll still talk about this.
Is there also a migo of brazenness? Wait, wait, I haven’t yet gotten to the migo of brazenness. This is Rabbi Shimon Kop’s proof. Why does he bring it? I won’t read further now because we don’t have much time. Why does he bring it? He brings it in order to make a point about a migo of brazenness. After all, what did he ask? Why does a migo of brazenness help in monetary law? It doesn’t help to exempt from an oath, but it does help in monetary law. Why? So he says as follows:
In a migo of brazenness, the consideration of "why would I lie" isn’t there, right? That’s what we saw. Because if you wanted to lie, you would have lied better—not true, that other lie is brazen, and therefore you don’t lie that way. So the consideration of "why would I lie" is not there. But claim-strength is there, right? If I were to say "it never happened" or "I paid everything," I could have said that. It’s brazen, but I do have the option to make that claim and prevail. That is enough to give me claim-strength. Now what happens? If I want to exempt myself from an oath, what do I need in order to be exempt? I need to bring alternative evidence, right? But a migo of brazenness has no evidentiary aspect, because it lacks the "why would I lie" component. Therefore a migo of brazenness does not exempt from an oath. That is what we see in Bava Metzia 3a. Why does a migo of brazenness help in monetary law? Because in obtaining a monetary ruling in my favor, I can prevail even through claim-strength; I don’t need the migo to provide evidence. The claim-strength dimension within migo is enough to prevail in monetary law, even without the evidentiary dimension. Therefore a migo of claim-strength, or a migo of brazenness, can help me in monetary law even though it does not help me exempt myself from an oath. That’s what Rabbi Shimon wants to argue.
That means there is no partial admission in monetary law—is that what you’re trying to say? What? There is no partial admission in monetary law? Why, of course there is. What, only in an oath? The oath is on partial admission. If I had partially admitted and the litigation were monetary, then a migo of brazenness would help, and therefore I also wouldn’t have to pay the amount beyond the fifty.
Up to this point, Rabbi Shimon’s claim is as follows: in every migo, in every situation, there are two laws, two different mechanisms. One is the "why would I lie" that appears in the Talmud. The other is claim-strength. The difference between them is that "why would I lie" exists only in situations where I really can say that if I had wanted to lie, I would have chosen a better lie. In a migo of brazenness you don’t have that, right? With orphans you don’t have that. But both in a migo of brazenness and with orphans, what you do have is migo as claim-strength. Why? Because in the end there is another claim by which one can prevail. You don’t have the calculation that if I had wanted to lie I would have lied better, but factually there is a possibility of prevailing through another claim. Okay? That is what characterizes a migo of brazenness and a migo for orphans. And therefore he says: there are situations in which only the claim-strength dimension of migo exists. The evidentiary dimension of migo does not exist. In what situations? Either with a migo of brazenness, where the evidentiary dimension doesn’t exist, or with a migo for orphans. Fine?
But in such situations the migo can still do some sort of work. If evidentiary work is required, the migo cannot do that, because it doesn’t have the evidentiary dimension. But if what is required is the power to prevail in monetary law, then yes, it can do that even without the evidentiary dimension. Okay? One second. I’ll just give one example of whether there can be a case of migo where only the evidentiary dimension exists and not the claim-strength. We brought opposite examples—where there is claim-strength and no evidentiary dimension. Can anyone think of a migo where there is the evidentiary dimension but not claim-strength? I’ll save you the effort.
In Tosafot in Ketubot 13a, and there is also Gilyon HaShas there on that passage, you can see it there, he brings an example of migo from a bad claim to a slightly less bad claim. Meaning, I have two claims and both are bad; with neither one would I prevail in court. But one of them is better than the other. It’s less insolent, whatever, better than the other. Fine? I chose the worse claim. I can still say: listen, if I wanted to lie, I would have chosen the better claim. I would lose either way, but if I assume that I know even that I’m going to lose, then why not choose the better claim and lose? Why choose the worse claim and lose? That’s a sign I’m telling the truth, no? No, because you are creating a new situation in which your having chosen the worse claim becomes stronger. Wait, now you’re going back to his question. I’m leaving that for now—you already jumped ahead; we’ll get there. Fine? At this stage I’m still ignoring the next stage.
So I’m saying: in fact I have a migo here; the evidentiary dimension of migo exists here, right? Because I really can claim: look, why did I choose a worse claim? If I were lying, I would have chosen the better claim. It doesn’t matter whether I would win or not win. Bottom line, it’s a better claim, it’s more comfortable for me to make, whatever. Right? Why didn’t I choose it? That’s evidence that I’m telling the truth, isn’t it? So what good does that do? They should believe me. A miracle happens here. There is a bad claim and an even worse claim. Now I choose the bad claim, and because there is an even worse claim, I will prevail with it, I will win in court, because there is a migo in my favor. Why? Because I have evidence on my side. If I were lying, I would have chosen the more… the less bad claim. That is evidence in every respect. There is an evidentiary dimension here.
But in any case you wouldn’t win, so the migo doesn’t matter. No, come on—then why make claims at all? In any case I’m not going to win. So either I’m an ignoramus, or I make claims even though I’m losing—what can I do, I make claims. Now I say: if you claim I’m lying, then I would have lied with the less bad claim. But you would lose either way. Right, I’d lose either way, so at least let me come out of court looking better. The claim is better; I come out less insolent, okay, for example. So at least to come out less insolent. The money I lose in any case; at least let me come out less insolent. So the evidentiary dimension of migo exists here. But it’s a bit paradoxical. Wait, wait, don’t go back to that again. No, I’m saying there are also infinitely many bad claims; there can always be a worse one. What do you mean? I can always make a worse claim than the one I made. A worse relevant claim? You have to look at the situation; it doesn’t always exist. Never mind. Look there.
The claim-strength is not here. Why is there no claim-strength here? Because with the second claim I would not prevail in court. After all, claim-strength means that if I have another option through which I would have prevailed in court, then even with this claim they let me prevail in court. Here the alternative is not an alternative that would let me prevail in court. It is better—I come out less insolent—but I would not prevail in court. So the evidentiary dimension exists even in such a migo, but claim-strength does not exist here. This is the opposite case from the case of "it was lost through unavoidable circumstances," or of a migo of brazenness, where there is claim-strength and no evidentiary dimension. Okay?
"Why would I lie." No, no, these are two different things, two different mechanisms. Later we’ll see that it isn’t completely certain, but for now, yes. What’s the purpose of introducing claim-strength? What? Wait. I haven’t explained yet. In just a moment.
Now, why really? This is indeed the next stage. What is the idea of claim-strength? So look, I’ll send you by email—a passage from Kehillot Yaakov on Bava Metzia, on this Talmudic passage on page 3. And there he too explains the same two aspects of migo that Rabbi Shimon Kop explains, but there he also goes more deeply into the explanations. And his argument is the following. I’ll do it briefly here just to close the conceptual loop.
He basically says this: suppose I have a migo of brazenness, or a migo that contains claim-strength. What does claim-strength do? Take a migo of brazenness. It doesn’t have the "why would I lie" element. But let’s say, for example, "I returned it" with a migo. Suppose someone comes to me and claims a loan, okay? I say to him: I paid you back. And I have a migo that I could have said: it never happened. He has no witnesses to the loan. Fine? I could have said to him: you never lent me anything, what do you want from me? I don’t know you. Fine? I have a migo. Okay? So I say: I paid you back, with a migo of "it never happened." By the way, this is considered an excellent migo—we’ll see that. But of course it is a migo of brazenness. Right? It is a migo of brazenness. Why is it a migo of brazenness? Because if the truth is that he gave me the loan, to tell him "it never happened" is brazen. Okay? More brazen even than saying "I repaid" or dismissing him in some other way. So let’s say this is a migo of brazenness. Fine?
What happens in this situation? In this situation, suppose that when I say "I repaid," I need for some reason to bring proof for my claim. Meaning, I’m not just simply in possession of the money and I win in court. Suddenly "I repaid" is a weak claim, because after all there was a loan; prove that you repaid. The burden of proof is on the one who seeks to extract from another, or according to the court, whatever it may be. Now I want to prevail by virtue of the migo. I have a migo of "it never happened," and I want to prevail. Kehillot Yaakov says as follows: the migo turns me into the possessor. Migo as claim-strength does not bring evidence that I am right; rather, it turns me into the one in possession. Why? Because what is possession? The possessor is the one who can prevail without needing the court. Right? That’s what is called possession. I’m holding the money, and you sue me. Now we come to court. Why does the possessor have an advantage? I talked about this earlier. Because I don’t need the court. As far as I’m concerned, don’t adjudicate, do nothing; it stays with me, and that’s all. You want the court to come and take the object from me and give it to you, right? But I can prevail even without the court’s help. I don’t need this litigation at all. "Possessor" means the one who can prevail without the court’s help. Right? That is possession.
Kehillot Yaakov says: if so, if I have migo as claim-strength, then I am the possessor. Why? Because I could have made the alternative claim and prevailed through it. So in fact I have the status of the possessor. Therefore the migo is not evidence in my favor, because there is no "why would I lie" here. But it turns me into the possessor and shifts the burden of proof to the other side. And if he does not bring proof, then I will prevail in court. I will prevail not because the migo proved that I spoke the truth, but because the migo turned me into the possessor. This is an expansion of the concept of possession. The concept of possession means the one who can prevail on his own, without the help of the court. In this case, after all, I could have said "it never happened" and would have prevailed, right? So I am the possessor. Now you bring the proof.
Even though saying "it never happened" is brazen, so I do not have the "why would I lie" element here—it’s not that this migo serves as evidence in my favor. In the migo of brazenness of partial admission, where he had the migo that he could have denied everything—fine?—that too is a migo of brazenness. He says: if I had denied everything, I would have brushed you right off, right? Bring proof. You didn’t give me any money. There was no money, it never happened, or I repaid everything. I’m not giving you the money. Fine? But I admit half. So I have a migo that I could have said "it never happened." This is a migo of brazenness—he did me a favor, and to say to him that he did nothing, that’s a migo of brazenness. So from the standpoint of the proof contained in this migo, there is no proof here, right? But I do have the option of prevailing. If I had claimed "it never happened," I would have kept all the money, right? Obviously yes. I don’t dare do that because it’s outrageous; never mind. So it’s not a practical option for me to make that claim—I recoil because it’s brazen—but such a legal option exists. So if I ask who is in control here over the object, who can by his own power alone remain with the object in hand? I can. I could have claimed "it never happened" or denied everything and remained with the money. In order to take it from me, you need to activate the court and bring proof. Fine, bring proof.
So now, even though the migo is a migo of brazenness and therefore there is no evidentiary support of "why would I lie" here, nevertheless because I have the power to prevail with another claim—that is what is called claim-strength—I am now considered as one in possession, and the burden of proof shifts to you. If you don’t carry it, I win. That is how migo as claim-strength works. That is how Kehillot Yaakov explains it. Incidentally, if you read Rabbi Shimon Kop carefully, he too is basically talking about how it makes me more firmly in possession, which is exactly what Kehillot Yaakov means. It’s the same principle. Yes, fine, that’s basically the idea.
Now what happens—why doesn’t this help exempt from an oath? In partial admission, after all, he claimed one hundred from me and I admitted fifty. I owe an oath. Now I have a migo, and it’s a migo of brazenness: I could have denied everything, right? We said that with a migo of brazenness I have claim-strength, and I become the possessor. That still won’t help exempt me from an oath, because I was already the possessor anyway. I’m already the one holding the money. You are claiming money from me that I say I do not owe you. I’m already in possession of the money, and nevertheless the Torah still obligates me to swear, even though I am in possession. So what does it help that I bring a migo that turns me into the possessor? I am already in possession, and nevertheless the Torah still obligates me to swear. Okay?
When possession can cause me to prevail in a monetary case or impose on you the burden of proof, then migo as claim-strength can work. But to exempt from an oath you need only the evidentiary dimension that exists in migo. The dimension of claim-strength that turns me into the possessor will not help. If this migo had an evidentiary dimension—if it were not a migo of brazenness—then no problem. Then instead of an oath, I have brought you proof that I am right. Why do you need me to swear? I brought you alternative proof. And that proof exempts me from the oath. But a migo that has no evidentiary dimension, only claim-strength, cannot exempt me from an oath. It turns me into the possessor, but even if I am the possessor, the Torah obligates me to swear if I partially admit. Therefore a migo of brazenness cannot exempt from an oath, and therefore claim-strength basically works because it turns me into the possessor. That is the idea of claim-strength.
Read this in Kehillot Yaakov, those of you who can. Whoever can find the time, in any case I recommend doing it. I’ll still talk a little more about it next time before we continue. Thank you very much.
Now send me emails, friends, and all the procedures I mentioned, okay? Uri, can you bring me the sheet? By the way, Rabbi Shimon Kop says in his discussion that a migo of brazenness strengthens the presumption of possession of the one in possession. But from the claimant’s side, can’t he say something like a reverse claim-strength—he used a migo of brazenness to strengthen his claim, whatever. That’s a question we’ll discuss in the context of a migo of brazenness. Even with a regular migo he can make such a claim. Right, right, with a regular migo he made a migo in order to be believed through migo. So that’s a question we’ll discuss.
There is a claim—first of all, just an ordinary claim—if he claims that I owe him one hundred dollars, I can just as well claim that he owes me two hundred. That raises the question whether this is a migo to extract. In principle you’re right; there may be something here, but additional factors intervene here. In principle, incidentally, a migo to extract does not help. If you have a migo and I am in possession, it does not help. But we’ll talk about that later.
And regarding the proof from presumption—if my name is written on the shirt, for example, then there is some proof that it belongs to me. Then the shirt belongs to you. Okay, let’s say that’s proof. Why not? Let’s say it’s proof. And now you come and claim that it’s yours, and let’s say it’s lying here, and now you come and claim it belongs to you, and now we have a dispute—but there is already that proof that my name is written there. In the same way, the very fact that I’m wearing the shirt is proof that the shirt belongs to me. No, that’s not proof. In the same way as the name written there—no, that is only proof when there is no claim. Once there is a claim, it is not proof at all. Why? Because when there is a claim, both sides are presumed fit, and there is no reason to assume that you are more right than the claimant. Then you could say that about any proof. No, because when there’s a name, the name says that the shirt really is yours objectively, regardless of whether there is a claim or not. You could also say that the very fact that it is found with me indicates that it belongs to me. No, not at all. That is not proof, it indicates nothing; there are borrowed objects too. That’s not true. Why assume that I’m the liar and not you? No, not assume that you are either. Only where there is no challenge. If there is no challenge, then yes, statistically most objects found with people belong to them. But once there is a challenge, then look. Do you really think that most objects associated with someone are actually his? I’m not sure. I don’t know whether this is about statistics; it’s simply proof. No, not proof. Why not? It’s a majority. So it’s proof. It’s a majority; every proof is a majority. Presumption is a majority. The presumption that a person does not pay before the due date means that most people do not pay before the due date. Whoever it’s written to—send to you. No, no, no, they sent it to me, to you. M-I-C-K-Y, I wrote M-I-K-E-Y. Fine. I sent it at first, it bounced back. I sent it.