Ketubot, Chapter 2, Lesson 2

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[Rabbi Michael Abraham] This passage about the am ha’aretz. Because an am ha’aretz, even if he doesn’t make the calculation, “If I wanted to lie, I could have lied better,” he would still have a migo in the sense of argumentative force. He wouldn’t have the “why would he lie” element, but he would have argumentative force, yes. Because in principle, the option to make a different claim and win is available to him, right? It exists. The fact that he doesn’t make the calculation of the lie, and he doesn’t know it, doesn’t matter. We know it. The fact is that he could win with a claim alone. So he is the one in possession. And if I accept that migo contains not only “why would he lie” but also argumentative force, that also solves the question of the Netivot. But then notice, there’s a consequence. What? Right, exactly. That’s the consequence. The consequence is that an am ha’aretz would not have the evidentiary dimension of migo, if I’m right, but only the dimension of argumentative force. So, for exempting someone from an oath, for example, that wouldn’t help. We saw that migo specifically needs the evidentiary dimension in order to exempt from an oath. Therefore a bold migo doesn’t do the job; a regular migo does exempt from an oath, according to some of the medieval authorities (Rishonim), according to Tosafot that we saw. But there it’s a bold migo, and therefore it does not exempt from an oath. Right? But a regular migo does exempt; however, if it’s the migo of an am ha’aretz, then even a regular migo would not exempt, because the evidentiary dimension does not exist even in a regular migo for an am ha’aretz. What exists is only argumentative force, but argumentative force does not help exempt from an oath. Or this migo of Rabbi Akiva Eiger in Gilyon HaShas, a migo from bad to less bad, where there there is only the evidentiary dimension, not argumentative force—then for an am ha’aretz that also would not help. Okay? So that’s a consequence. That does not seem to emerge from the Talmud or from the halakhic decisors. It seems that migo is a general principle; they don’t discuss there whether this is an am ha’aretz or not. I’m just making a side remark—notice that in light of this distinction made by the later authorities (Acharonim), that migo also contains argumentative force, the question of the Netivot becomes much less difficult.

[Speaker D] So that also applies to what you asked about someone who imagines things. So here there’s no “why would he lie,” only argumentative force. Exactly. I

[Speaker E] still think that the Netivot’s question is—I don’t understand this thing, because it’s exactly the opposite. Why? Because much more than the way I understand it, migo basically adds credibility to the defendant. Meaning, I might not have believed him, but from the very fact that he chose the weaker claim, that raises the credibility of what he is saying in general. Right. Now, when the am ha’aretz says—there is the claim of migo—he didn’t choose in a sophisticated way and didn’t game the system. On the contrary, the am ha’aretz is really telling the truth, he is saying the simple truth.

[Rabbi Michael Abraham] An am ha’aretz—just because he’s foolish doesn’t mean he isn’t a liar, we already

[Speaker E] talked about that.

[Rabbi Michael Abraham] An am ha’aretz could be—I’m getting tangled up in the language here—simple. But the fact that he is ignorant doesn’t mean he isn’t a liar. Maybe he is lying?

[Speaker E] But a Torah scholar can also be a liar—what is that?

[Rabbi Michael Abraham] Everyone can be liars. But a Torah scholar—but a Torah scholar has a migo.

[Speaker E] The opposite—how can that be?

[Rabbi Michael Abraham] I don’t know. Because if the Torah scholar wanted to lie, he would choose the better claim; he knows that it is better. Therefore—just a second, we’ll get to that later. And therefore the better claim always exempts him even without—

[Speaker E] Because if the Torah scholar wanted to lie, he would choose the better claim; he knows that it is better.

[Rabbi Michael Abraham] Therefore—wait, we’ll get to that later. Because the better claim is always available to him regardless of the proof. Clear, clear. Now, if he knows that, then why did he choose the inferior claim, given that he is a Torah scholar? So that means he is speaking the truth. But the am ha’aretz doesn’t know that, so I have no proof that he is speaking the truth. So maybe he’s a liar, maybe not and maybe yes, but the migo does not help me decide that, because the concern that he is a liar remains exactly as it was.

[Speaker E] In the case where he paid after the due date—let’s say Shimon sued Reuven after the due date, and Reuven said, “I paid you after the due date,”

[Rabbi Michael Abraham] then he has neither migo nor anything else, obviously. He is simply in possession. No migo is needed at all; he is in possession, period—bring evidence.

[Speaker E] He’s only taking.

[Rabbi Michael Abraham] Another question is the question about certain knowledge versus uncertainty that I asked you about. A famous question in the yeshivot. Yes, certain knowledge versus uncertainty: you claim with certainty, “I lent you one hundred shekels,” and I say, “Honestly, I don’t remember.” Certain knowledge versus uncertainty. Now there is a dispute whether in certain knowledge versus uncertainty, certainty has the advantage or not. When I am in possession, that is the dispute; but if no one is in possession, then obviously certainty has the advantage according to everyone. Let’s say we are arguing over some boat floating in the river—neither one of us is holding it, that boat, yes? There certainty definitely has the advantage. The question is: why shouldn’t we believe the one who claims uncertainty through a migo, since he could have claimed certainty? After all, if he had claimed certainty, then he would have been on equal footing, right? They would divide it, or do something else. So then what’s the problem? Even when he claims uncertainty, believe him by migo, because he could have claimed certainty. What do you say?

[Speaker F] I claim that no one is in possession.

[Rabbi Michael Abraham] You remind me of a question in physics. You know, when you learn the law of action and reaction, in first-year mechanics people always ask why the body moves if the net force on it is zero. It’s the same question. No, because it’s similar—I don’t know, a very close association.

[Speaker I] I argued that there is an advantage to the claim of certainty over uncertainty.

[Rabbi Michael Abraham] Fine, but why doesn’t that help him? It doesn’t help him, because in certainty versus uncertainty, certainty has the advantage. Why? The uncertainty-claim should have the same status as certainty, because he has a migo that he could have claimed certainty. He receives the force of the alternative claim, of the claim of certainty. So now, de facto, he too is claiming certainty. So it’s certainty against certainty.

[Speaker C] What? But he is in doubt, and his actual state is always one of doubt.

[Rabbi Michael Abraham] What do you mean?

[Speaker C] It could be that he really is liable.

[Rabbi Michael Abraham] Uncertainty—so he has equal status to certainty. What’s the problem?

[Speaker C] He’s fifty-fifty, and the other one is one hundred percent.

[Rabbi Michael Abraham] Not fifty-fifty. I’m talking now about certain knowledge versus uncertainty, all or nothing. Not half and half, not a cloak.

[Speaker C] Eighty percent that he is uncertain versus one hundred percent that he is certain.

[Rabbi Michael Abraham] But he has a migo! He has a migo that he could have claimed certainty. And after all, the alternative claim—if I had claimed certainty, I would have been equal to the claimant, right? So that gives me the force, even with the uncertainty-claim, to be equal to the claimant. That is the meaning of migo.

[Speaker E] So why does he

[Rabbi Michael Abraham] basically not get to claim certainty? Why does the one claiming uncertainty not have a migo? He could have claimed certainty.

[Speaker E] Because certainty has the advantage.

[Rabbi Michael Abraham] Certainty—why? Seemingly he should have the same status.

[Speaker E] Because it’s not the same kind of claim as early payment and late payment. Why? Because in early payment and late payment, in both cases he is claiming, “I paid”; the only question was whether he had a better claim within that same claim. Meaning, the claim was “I paid,” and he could only have claimed after the due date or before the due date. So after the due date was better, and before the due date was worse. But the claim is “I paid.” Here the defendant is not claiming anything. Uncertainty is not a claim. He doesn’t know. And therefore what? He doesn’t have possession.

[Rabbi Michael Abraham] Fine, it’s not possession. So he claims certainty, I claim certainty, and no one is in possession. I also have a claim, because migo means that the alternative claim gives force to the weak claim that is actually being made, so it is as if I am making the alternative claim. So now, legally speaking, I too have a claim, exactly like the other one has a claim.

[Speaker E] But in certain knowledge versus uncertainty, uncertainty is not a claim.

[Rabbi Michael Abraham] But now he has a migo that he could have claimed certainty, and after all he receives the force as though he were making the alternative claim, right? That is the idea of migo. So?

[Speaker D] Doesn’t the alternative claim need to rest on some other claim?

[Rabbi Michael Abraham] That’s the question. I’m asking why. Seemingly yes; the fact is that uncertainty loses, but why? A simple answer: we believe him. What does migo say? Migo says, “Believe me.” We believe you.

[Speaker E] He doesn’t know.

[Rabbi Michael Abraham] We believe you that you don’t know. Fine. Now give him the money. Do you understand? No, no.

[Speaker E] We believe him that he doesn’t know. Fine. Why should he now give him the money?

[Rabbi Michael Abraham] Because if you don’t know, then you are not claiming that the money is yours. After all, what is migo? Migo says, “Believe me that I’m not lying.” No problem—we believe you. What do you want to do with the migo? We completely believe you. You lose not because we don’t believe you. You lose because he says it is his, and you aren’t making any claim against him. What’s the problem?

[Speaker F] You’re not really making a claim—why not.

[Rabbi Michael Abraham] A weaker one, obviously. Maybe not even a claim at all.

[Speaker F] Meaning, he isn’t claiming anything.

[Rabbi Michael Abraham] There is a dispute among the later authorities (Acharonim) whether this is not a claim at all, or whether it is just a poor claim.

[Speaker F] That’s what she said—we believe him that he isn’t claiming anything.

[Rabbi Michael Abraham] Exactly. I’m just saying, the idea is this: migo says this is a consideration of “believe me that I’m not lying, because if I wanted to lie I would have made an alternative claim.” No problem—we accept the migo, you have a migo, and we completely believe you that you are not lying.

[Speaker F] Now let’s hear what you are saying.

[Speaker D] You’re saying uncertainty.

[Rabbi Michael Abraham] We believe you that you are uncertain. Yes. So this is not some formal rule; it’s simple logic. He wants the money, you don’t know anything, so give it to him. But why? Why not? Because certainty has the advantage, when there is someone in possession… No, let’s say there is no one in possession for the sake of the discussion, because when there is someone in possession it is a dispute. Let’s say there is no one in possession. But when there is someone in possession, the uncertainty-claim wins even without the migo—in practical Jewish law. In certain knowledge versus uncertainty, certainty does not have the advantage in practical Jewish law.

[Speaker D] When there is someone in possession, when the one in possession

[Rabbi Michael Abraham] argues: maybe he will win the case. A definite claim versus an uncertain claim will not help to extract money from him. By the way, I suspect it may be because of this migo. But that’s a separate discussion. Still, if someone claims he’s certain, must he necessarily produce some proof? No. Why? It’s only word against word. There is your money—no, it’s not word against word, because there is no opposing claim. I’m not claiming it isn’t yours; I don’t know. Fine, she also doesn’t know, he also doesn’t know, no problem—then it’s yours, take it. Nobody is arguing with you. What does it mean to say such a thing? But why? Maybe what you have—that cup you’re holding—maybe it isn’t yours. Why are you using it? Because nobody is claiming it’s theirs. What’s the problem? If I’m using something and I claim it’s mine and nobody contests me, there is no reason to doubt what I say. Maybe I’m lying—fine—but there’s no reason to assume I’m lying. He’s not saying otherwise. If someone argues with me, then the religious court has to deliberate: who’s lying here and who’s telling the truth? But if nobody argues with me, why deliberate?

Wait—if what remains here is only the “why would I lie” element… ah! Here there is room to deliberate. Because apparently what I said until now is only on the level of “why would I lie.” Because “why would I lie” proves that I’m not lying, right? If I were lying, I would have made a different claim… So true, here “why would I lie” is not relevant. I believe you that you’re making an uncertain claim—now pay. But the force of the claim turns me into the one in possession, right? And then that means I have the force of a claim; I could win with an alternative definite claim, right? And then in effect I’m in possession. And you can’t extract from someone in possession on the basis of a definite claim without evidence. So the dimension of force-of-claim in the migo should have helped me win even with uncertainty, even without the “why would I lie” element. Okay.

Here it really is a more complicated question, and here one probably has to say something like this: force of claim cannot… meaning, if uncertainty is not a claim at all—if it’s just a weak claim, then this is indeed a difficult objection. But if uncertainty is not considered a claim at all, then you don’t know, you’re not asking the religious court for anything, you’re just saying you don’t know. There are lots of people who don’t know what happened to this money; that doesn’t mean they are making claims here in court. Right? So if you’re making no claim at all, then the migo’s force of claim won’t help. Because force of claim turns a bad claim into a good claim, but it can’t put claims into your mouth. I’m not claiming anything, so what do you want—the force of claim should invent a claim for me? And therefore the force of claim here also doesn’t solve the…

But can migo turn someone who is not in possession into someone in possession, or does it only strengthen existing possession? So as I said, generally it only strengthens possession. But what counts as strengthening? Even beforehand I wasn’t totally in possession; the other side also wasn’t in possession. There’s an object there. Now if I can win it without doing anything, then I count as in possession even though it’s just sitting there, right? To remove possession from you and transfer it to me—that’s harder. But if an object is floating in the river and nobody owns it, nobody is in possession, then if I have a migo, maybe I become the one in possession of it.

Are there examples of force of claim outside monetary law? Yes, and we’ll get to them too, but yes, we’ll talk about that. So here what does it do? I don’t need possession here. What does force of claim do for me? What does it give me? Credibility in… “why would I lie.” There too there is possession—possession meaning a presumption. For example, a woman who says, “I was a married woman, and now I am divorced.” Yes, okay. Fine? “I was a married woman, and now I am divorced”—she has a migo. “The mouth that prohibited…” the mouth that prohibited—we won’t go into that right now. She didn’t have to tell us at all that she had been a married woman, and then they would have allowed her to marry, right? But she volunteered to say that she had been married, and then said, “But I am divorced, let me marry.” So she has a migo, right?

Now this is a migo not in monetary law, it’s a migo that… But is it a migo of “why would I lie”? Wait, no—who says? Here too there’s both the “why would I lie” and the force of claim, why not? Since she could have said… yes, because force of claim basically means she is presumed to be a married woman, right? Now she wants us to remove her from the presumption of being a married woman and make her divorced, so it’s like possession. Meaning there is a presumption that she is a married woman, and she wants: fine, but remove that presumption—I got divorced. So force of claim says she is not presumed to be a married woman; she is presumed to be unmarried. Okay? It’s the same idea, just not in monetary law.

The same with a kohen? Right, same idea, right. These are exactly the kinds of migos that don’t deal with money but with personal status or something like that.

Okay then… that’s regarding definite versus uncertain claims. Now I want to move on to another important point regarding migo. The proof provided by migo is a different kind of proof from any other proof. And this is important to understand. Every proof, or almost every proof, is a proof that deals with the substance of the discussion. Whose money is it? Was there a loan? Wasn’t there a loan? Was she married? Was she divorced? It deals with what we’re discussing. So if someone brings witnesses and the witnesses say there was a loan, then the religious court has received proof that there was a loan, right? The presumption that a person does not repay before the due date—that is proof that he did not repay, right? Because people don’t repay before the due date. Migo is not proof about the substance of the matter. It is proof about the claimant, about the person. Migo serves as proof that I am not lying. It is not proof that I repaid. Only if I say I repaid, and there is proof that I am not lying, then maybe they’ll accept my claim. But the proof is indirect; it does not deal directly with the thing itself, it deals with the speaker.

Where does this matter? And here I asked you the question about someone imagining things. Suppose our concern is this: a person comes and identifies a man who died and comes to testify that the wife is permitted—she is no longer a married woman, her husband died. Now we are concerned that this is just imagination, that he imagined it; maybe it isn’t that man, maybe he made a mistake. Okay? This isn’t a concern that he’s lying; it’s a concern that he’s imagining things in good faith. Okay? If he has a migo—he told us she was a married woman, and he could have omitted that entirely, in which case she would have been permitted anyway. He has a migo. Will it help? Why not? Because the migo works like this: believe me that I am not lying, because if I had wanted to lie, I would have made a different claim. But here the concern about you is not that you want to lie. It’s that you want to tell the truth but don’t know. So how would migo help? Migo won’t help. Migo doesn’t show that you’re not imagining. Maybe you are imagining. Therefore in a case like this—here is the example where there is a difference between proof about the speaker and proof about the matter itself. If I had proof that the person died, that would solve the problem of imagining as well. If two witnesses come and say the person really died, no problem, then the concern that the person is imagining also disappears. Because that is testimony about the matter itself, that this is indeed what happened. But proof about the speaker himself—migo—only matters when my concern is really about the speaker. But if my concern isn’t about him—if it’s not that he’s lying, but only that he erred—then migo won’t help.

So what is the speaker saying? In what case? That he saw him dead. He says he saw him dead, but we don’t know: maybe he was breathing faintly and you didn’t notice, maybe you got confused in identifying him, maybe you didn’t identify the person correctly. Two witnesses come and testify that he is dead. What is he saying? No, no, there aren’t two witnesses. We know him, that he’s like this. Wait, wait, there aren’t two witnesses, nothing. A person comes; the woman is here, her husband has been missing for a year. Suddenly someone comes and says, “I was in Australia and I saw him, he was dead.” She can marry. Testimony—yes, on the basis of testimony she can marry. Fine? Now they start investigating him. How do you know it was him? By the distinguishing mark, and there are rules in the Talmud about how one identifies.

Now when we’re not fully certain that he identified correctly, what does that mean? There are two possibilities. One possibility is to say maybe he is lying—he wants to do her a favor so she can marry; what, should she remain an agunah her whole life? So he lies. If he had a migo, that would solve the lying problem, because if I wanted to lie I would have made a better claim. But if we are concerned that he simply did not identify correctly—if we know, for example, that this person has a twin, maybe it wasn’t this man but his twin? Just as an example. Or he has a generic-looking face; lots of people resemble him. In other words, there can be situations where we worry that the person is imagining, not lying. Then it won’t help that he has a migo. Migo proves that he is speaking truthfully, like in the case of uncertainty. The concern when you make an uncertain claim is not that you are lying. So what good is a migo that proves you are not lying? If I brought two witnesses that I did not borrow, then even if I made an uncertain claim I would win—so what if I don’t remember? There are two witnesses telling me what happened. Because that is testimony about the matter itself. But if I have a migo, the migo is testimony that I’m not lying, not testimony about the matter itself. So what good is it if I say “maybe”? Or what good is it if I am imagining? It won’t help at all.

Another example of this implication: what happens in the topic of two against two? In the topic of two against two, there are two witnesses in favor of Reuven and two witnesses in favor of Shimon. Okay? In such a case, we do not accept the testimony. What exactly we do is a complicated question. But we don’t accept either testimony. Now suppose two initial witnesses came in favor of Reuven and testified whatever they testified. Two hours later two other witnesses arrive and testify in favor of Shimon. We ask the first ones—the second pair has a migo. They could have testified that the first witnesses are robbers and disqualified as witnesses. So believe them that they are not lying. If they had wanted to lie, they would have lied better; they would have disqualified the first witnesses and then could have said whatever they wanted. So they have a migo. We do not use such a migo. Otherwise there would be no such thing as two against two in the world. So there is no migo. Why is there no migo? There are several explanations among the medieval authorities (Rishonim), three at least that I remember now.

One explanation—and it’s a bit tricky, not so simple—is that we don’t say migo for two people together, regardless of whether they are witnesses or litigants. Why? Because migo requires some kind of coordinated lie. Now maybe they didn’t tell the coordinated lie because they were afraid it would be exposed in court examination. If you’re lying alone, no problem, whatever I say I’ll say. But if they can cross-check it against what somebody else says, I’m afraid they’ll catch me. So maybe that’s why I didn’t tell that lie. Therefore we don’t say migo for two witnesses in such a case.

A second answer says there is no migo for witnesses at all; migo applies only to litigants. Migo for witnesses is ineffective. Why not? Good question why not. In principle, what’s the problem? If it strengthens their testimony, then it strengthens it. But there is some such conception that we don’t say migo for witnesses. If migo means force of claim, then by the way this is clearer. Because if migo means “why would I lie,” then what’s the problem? It gives additional proof that the witnesses are not lying. But if it means force of claim—who makes claims in court? The litigants. The witnesses do not make claims; the witnesses bring proof. If migo doesn’t add an evidentiary dimension for them, then it isn’t relevant. Witnesses have to tell what happened, not bring proofs. But they themselves constitute proof. So if they have a migo, then apparently that strengthens the proof they bring, so they are not lying and everything is fine, right? But they were not presumed beforehand. What? I didn’t understand. The witnesses are not presumed beforehand. What does that mean? Witnesses aren’t presumed or not presumed. The litigants are in possession or not in possession. The witnesses come and state proof. And they cannot receive migo as witnesses. Why not? Here—two witnesses come and say Reuven borrowed. Two other witnesses say Reuven did not borrow. Fine? What do we fear? That the second witnesses are lying so he won’t have to pay. He did not borrow; they are his friends. And they say to me: if we had really wanted to lie, we would have told you that the first witnesses, who say he borrowed, are robbers. We would have disqualified them as witnesses and that’s all. So believe us that we are not lying; we have a migo. Fine? But force of claim is not something relevant to witnesses. Force of claim turns my claim into a good claim; it does not constitute proof. But witnesses aren’t playing on that field. Here is an example of the distinction I made earlier between a litigant and witnesses. They operate on different fields in court. Migo belongs to the territory of litigants, because it strengthens their claim, not to the territory of witnesses.

But in the “why would I lie” aspect, in a brazenness migo, it’s definitely like that; there is no dimension of “why would I lie” there. But where there is “why would I lie,” it is still a question—why not say it regarding witnesses? What’s the problem? You have proof they aren’t lying.

And what about refuting witnesses then? Huh? Refuting witnesses. What’s the problem? Two witnesses come and say, “You were with us.” So doesn’t that count as disqualifying them? Yes, it does count. Of course. But not only refutation—if they say they are disqualified because of robbery, they would be believed. It’s just that here they don’t do that; they say he didn’t borrow, except that they have a migo because they could have come and disqualified them as robbers. Fine? So that is the claim that migo does not help witnesses.

But what happens if, say, the witnesses are relatives? To each other? Yes. Or relatives of the litigant, doesn’t matter. They are disqualified. Disqualified, right. What if they have a migo? Well, they’re disqualified, so why shouldn’t they be disqualified? A migo that shows they aren’t lying. Fine—so what? First of all they are disqualified. First of all they are disqualified; they are not witnesses at all, they don’t even enter that category, so what difference does it make? But it’s proof. Proof of what? That he borrowed, that he didn’t borrow, depending on the testimony. No, but what do you mean, they have a migo? They have a migo—it doesn’t matter, in some general situation they have another claim by which they would have been believed. They could have said the loan was to somebody else, not a relative of theirs, and he would then pass the money on to him, or something, somebody else. As if someone else says migo; then it’s neither witnesses nor the litigant giving testimony. No, the relatives—yes, witnesses. Two related witnesses come and testify, say they are relatives of the litigant, fine? But formally they are not witnesses. That’s it. But what do you mean formally? We have a migo, so we have proof that this litigant is right. There is something here between testimony and migo. Fine, so we have a migo—but the proof of migo exists here. I didn’t understand. What difference does it make whether they have a migo or not? If they are relatives of the litigant, they were disqualified before they even entered court. So what if they were disqualified as witnesses? But there is proof in favor of the litigant; the proof exists. The proof is logic. The logic says that if they were lying, they would have lied better; apparently they are telling the truth. We didn’t hear their testimony if they aren’t witnesses at all. We did hear their testimony and only afterwards it became clear that they were relatives. Doesn’t matter, we heard the testimony. Now they bring a migo, and the migo shows they are not lying. So don’t accept them as witnesses; accept the migo as proof. What difference does it make? I don’t understand. So then you could always solve the problem of relatives. Not always, only if there is a migo. There isn’t always a migo. What’s the problem in making a migo? It may not exist. Yes.

The answer is no. The answer is no. Why not? Again: because this adds to their credibility? Yes. Since they are relatives, we don’t accept their testimony in general. If they have a migo, then it proves they are not lying. But that is exactly the point: relatives are disqualified as witnesses not because we suspect them of lying. It is an intrinsic disqualification. It says so in the Talmud, it says so in Maimonides, in the Shulchan Arukh—an intrinsic disqualification. It is not a concern for lying. In other words, we do not suspect they are lying; we do not accept their testimony even though we think they are speaking the truth. So what does the migo prove? Wait, wait—what does the migo prove? The migo proves they are speaking the truth. That I already knew before. But even though they are speaking truth, I still don’t accept their testimony. But why should I care? Just a second, notice: this is a subtle point. It’s not what you said. That’s why you have to pay close attention. You need all the introductions I gave in order to say this. Because only after we understand that migo is not proof about the matter itself but proof about the speaker himself can I say this. If migo were proof about the matter itself, then who cares that these related witnesses have a migo? The migo would help. The migo would prove that, as to the matter itself, there was a loan or there wasn’t a loan. So what difference would it make? But since migo operates on the speaker himself, what does it prove? That the speaker is not lying. Fine. With relatives I never suspected you of lying to begin with. So what difference does it make that you have a migo proving you aren’t lying—that you aren’t lying?

Now why should I be believed? There is the relative, there is the witness—but a relative can’t be a witness. It is not enough to say that a relative is not a witness. You have to understand that migo strengthens the speaker, not the matter itself. Now one can say that a relative is not a witness and therefore migo won’t help him. Okay? This is an important point. Because with witnesses, the force of credibility is not relevant—I said that earlier. It is relevant only for the litigant.

So in the earlier cases, the person who identified him? What? There too it’s a witness. It’s a witness who comes and testifies that he died. We are speaking about witnesses. In all those cases we are speaking about witnesses. As for the litigant himself, that’s clear. Only “why would I lie” apparently could have helped even witnesses. Fine?

Now, I said there were two explanations: either there is no migo for witnesses, or there is no migo for two people together—that two people cannot have it. The third explanation appears in Kovetz Shiurim, part 2, section 46. It’s on the page I sent you. So he brings Sha’ar HaMishpat; Sha’ar HaMishpat essentially brings this explanation. Section 46: he brings that in a case of two against two, if there is a migo for the litigant himself, he is believed. Specifically when the migo belongs to the witnesses, it is ineffective. For migo is no stronger than witnesses, and two are like a hundred. See there. Which page in the source sheet are we on? In the source sheet I emailed and mentioned yesterday. Kovetz Shiurim part 2, section 46. Okay?

Again. In Sha’ar HaMishpat, section 46, he brings that in a two-against-two case, if there is a migo for the litigant himself, he is believed. Yes—if there are two and two, two witnesses, and the litigant has a migo, he will come out believed, he will win the case, even though there are two witnesses against him, two witnesses for him and against him, and he has a migo. But if the migo exists for one of the two sets of witnesses—not for the litigant, but for one of the sets of witnesses—then the migo does not help. Why? Because migo is no stronger than witnesses, and two are like a hundred. This is the third explanation.

Suppose—let me pause the reading—suppose there are two against two: two witnesses for one side, two witnesses for the other side. Now suppose two more witnesses join the first side. That changes nothing. Why? Because two are like a hundred. One hundred witnesses and two witnesses are the same thing. That’s the rule. So migo adds nothing? Right. And migo is certainly not stronger proof than witnesses. So if adding witnesses to one side doesn’t help, then adding migo to one side certainly won’t help. Right? This is migo against witnesses. Right. Migo and witnesses against witnesses. Why does it work that way? That’s the rule. There are two witnesses against two witnesses. If more joined them, they don’t cancel one another and then two new witnesses come—no, that’s it, they don’t cancel one another; it remains two against two. Now two more arrive, so now it is four against two. But four and two have the same strength in Jewish law: two are like a hundred. Two is like a hundred. The Torah says, “By the testimony of two witnesses a matter shall stand,” and from the verses we learn that from two onward it has the same weight. Fine? But one of them is lying. Fine. But there is no proof—right, that’s not strong enough. That itself isn’t strong enough to go against witnesses. How do you know? Maybe two liars can come? They can; if you find liars, fine, liars can always do what they want.

So Sha’ar HaMishpat is basically saying why migo does not help witnesses: because if you add migo to one set of witnesses, then you have two witnesses plus migo against two witnesses. But even two witnesses plus two witnesses doesn’t help against two witnesses, so two witnesses plus migo, which is weaker than two witnesses, certainly won’t help. And this is talking about the witnesses’ migo. Yes, he says this about the witnesses’ migo. The litigant’s migo can help. And by the way, not everyone agrees. But this is his view—that the litigant’s migo can help. Fine? The litigant’s? Why is that? Why would the litigant’s help and the witnesses’ not help? Because it says he is speaking truthfully? It’s not proof. It turns him into the one in possession. One second. Exactly. We will see that in a moment. Because there there is force of claim. Witnesses only have the “why would I lie” element. Therefore this Kovetz Shiurim really sums up what I said earlier. That is the implication.

So look. “And this requires explanation,” asks Kovetz Shiurim. Because even where the litigant has a migo, one can say the same reasoning—that migo is no stronger than witnesses, and two are like a hundred. What difference does it make if the litigant has a migo? Then the litigant has his migo—not the witnesses’ migo, his own migo—plus two witnesses, and against him there are two witnesses. Again, this is two witnesses plus migo against two witnesses. What difference does it make whether the migo belongs to the litigant or to the witnesses?

So he says this: “It appears that migo contains two things. A: We are as if witnesses that his claim is true, since why would he lie? And this does not help in two against two.” Correct, the evidentiary dimension of migo is irrelevant, because adding proof to two witnesses does not change the situation. Fine? “B: He has the force of credibility of the other claim.” See, I told you that Rabbi Elchanan Wasserman in Kovetz Shiurim does not use the term force of claim but force of credibility. And he really does conceive of it as some kind of electricity; he apparently does not see it as possession, at least that is my impression. So he says: he has the force of credibility of the other claim, also for this claim. “And this is not because it clarifies the event.” It is not proof. “Rather, he is believed in his claim”—without explaining; he doesn’t explain why, just some kind of electric force. We explained earlier that it means possession, but he doesn’t explain it that way.

“Therefore, where the migo belongs to the witnesses, if we say that they have the force of credibility of the other claim, since in the other claim their credibility was as witnesses, then in this claim as well they have the force of credibility of witnesses. And that is no better than if there were yet another set of witnesses, for two are like a hundred.” What would the migo do for witnesses? At most, the migo would turn them into witnesses. Okay. They are witnesses anyway. They are witnesses now too—but there are two other witnesses against them. So what good is the witnesses’ migo? This is the same thing we said before. Right.

“But where the migo belongs to the litigant, whose credibility is not because it clarifies the event, but because he is believed in his own claim—this applies even in two against two.” Fine? It doesn’t prove the event itself. I didn’t bring any more proof about the event itself. It proves that I am, in effect, believed in my claim. Believed here does not mean that I am not lying. Rather, it means he has a legal right for us to accept his claim. We call this possession; he doesn’t use that term. He doesn’t use the term possession, and therefore in my view his explanation is weaker. Because if we used possession, it would be self-evident. Because it turns him into the one in possession, and therefore he wins; that’s all. It is not added to anything. But he calls it force of credibility, and so he gets squeezed a little by this distinction. According to the explanation I gave earlier, it’s simple. Fine? Obviously the witnesses cannot acquire possession because they have a migo. The witnesses are not in possession of anything. The litigant is. But if he has a migo, he becomes the one in possession. Because it depends only on him. He can win even without the court. Witnesses cannot win, because they are not the ones who win—the litigant wins. Force of claim is not relevant to them.

Here we are talking about the two aspects of migo. So once I have witnesses, that is already one hundred percent of the evidence I can use. On the evidentiary level. Exactly. But force of claim doesn’t operate on the evidentiary plane. Exactly. On the other hand it can’t… Precisely for that reason it isn’t relevant to witnesses but only to the litigant, because it doesn’t operate on the evidentiary plane. Again, this distinction I made before—that witnesses and the litigant don’t play the same role in court.

Now he sharpened another point. When the litigant is believed, it does not mean that he is not lying. It means he has a legal right that we accept his claim. But what comes out of it? With witnesses, our conclusion from what they say is what reality was. We determine what reality was by the force of witnesses. But when a litigant wins, it is not because we believe what he says. Rather, he has a legal right to win on that claim. We are not deciding the question of what happened. Why? Because the litigant is disqualified from being a witness. What he says about what happened will not be accepted by the court as testimony. So how does the court rule in his favor? When the court says there was no loan, they are not really saying there was no loan. They are saying: you have the legal right to keep the money as though there were no loan, because nothing else was proved. That’s all. We are not ruling that you are right. We are not ruling on the substance of the event. We are not ruling what happened there. We are ruling who has the legal right to leave court with the money. That is a legal ruling.

And is that in the case of two witnesses against two witnesses? Always. In all cases. When we rule on the basis of claims—of the litigant, not on the basis of proof—we have not decided what reality was. But always, always in the end there is a claim. Suppose a claim comes to court—there is always a claim, otherwise he wouldn’t come to court. Now there are two sets: one says his claim is true, the other says his claim is not true. Okay, and now what does the court rule? Two against two. Two against two, that’s it. They cannot accept either side. Now the question is: if there is a migo, what do we do? Can the migo nonetheless decide the case? A migo for whom? For the plaintiff? Either for the plaintiff, or for one of the sets of witnesses, it doesn’t matter. Either for the litigant or for one of the sets of witnesses. That is the distinction made by Sha’ar HaMishpat. For the litigant himself the migo will help. For one of the sets of witnesses the migo will not help. Even when it helps, is it only on the legal side? Why? Helps with what? To win the case. To become the one in possession. No, wait, to win the case. One more explanation. Wait, wait, wait, don’t jump ahead. It helps him win the case. Otherwise he would not have won; now he wins because he has a migo. Fine? Could the litigant in this case be either the plaintiff or the defendant? Doesn’t matter, yes.

Now if the migo is a migo for witnesses, it won’t help. But if the migo is a migo for the litigant, it can help. Why? What’s the difference? Because in such a case, the evidentiary dimension of migo is erased from the map. It doesn’t matter whether it’s migo for witnesses or migo for the litigant. Why? Because the evidentiary dimension would only add more proof in my favor, and I already have two witnesses in my favor. And that is the maximum possible evidence. You cannot have more than that. So the evidentiary dimension drops out of the game. It’s no longer in play. When there is two against two, the evidentiary dimension is not in play.

But migo can still play a role. Why? Because migo also has force of claim. But that exists only when the person bringing the migo is the litigant. Because for the litigant, force of claim turns him into the one in possession, and therefore he wins. But if the witnesses bring a migo—if the witnesses have a migo—that doesn’t turn anyone into the one in possession. At most it can bring proof, but bringing proof is irrelevant here. You could have argued exactly the same thing before the witnesses came, that by force of migo it turns him into the one in possession and now… No, it doesn’t matter when the witnesses came. Even if he became the one in possession after there were witnesses, he stops being in possession. No… not relevant. There is no chronology here. As long as it’s all taking place within this same proceeding, there is no chronology.

What you meant was that we wouldn’t have needed the witnesses for this. If he is in possession by force of the migo, the migo strengthens his claim and turns him into the one in possession, then that’s it. Why do we need the witnesses too? Obviously. But there are two against two, two sets of witnesses. The question is whether after there are two sets of witnesses, the migo still works. Sha’ar HaMishpat claims yes, if it belongs to the litigant, but not if it belongs to one of the witnesses. Obviously, if there were not two sets of witnesses and I had a migo to retain possession, I would win. No problem. The question is what happens when there are two sets of witnesses. Maybe that cancels the migo and then it won’t help—I will no longer win. Because there is maximal evidence in each direction. Fine?

And how does it help him now? What? Because one set is for this side who wins and the other set is for the other side who wins, right? Yes. And it sounds like they cancel each other, like plus and minus… No, that’s what I’m saying—they don’t cancel. Two against two remains like a tie. They remain in force and clash with one another. And any force you add to one side won’t help, because there is infinite force to two witnesses. There is no further increase of force; it won’t help. They remain tied. But all that is in terms of evidentiary force. If I make a claim, that doesn’t belong to the evidentiary plane at all; it turns me into the one in possession. Now, when two witnesses clash with two witnesses, who wins? The one in possession. The migo turns me into the one in possession, so I win. But that is when I have the migo. When the witnesses have the migo, it does not turn me into the one in possession; it has no connection. Migo with witnesses can only operate on the evidentiary plane, and here the evidentiary plane is irrelevant. Okay?

Okay. Now Maimonides writes similar things. By the way, where are you up to in the page? I see it’s really taking me a lot of time. Okay, fine. What is it? Did you already get to migo to extract? No. Fourteen, we got to fourteen. What is that? I don’t even remember what fourteen is anymore. We got to Tosafot but not to migo to extract. Yes, that is exactly where it starts, the beginning of migo to extract. Okay, so apparently that’s more or less what we’ll manage today, so that’s fine.

Maimonides—look at Maimonides, Laws of Claims and Responses, chapter 6, law 1. The long Maimonides that I also sent you. Let’s read it for a moment. There are two more points I want to get to now and then we’ll probably get to migo to extract next class.

“Litigants who came to court: one claimed and said, ‘I have a maneh in that person’s possession, because I lent it to him,’ or ‘because I deposited it with him,’ or ‘because he robbed me’—it doesn’t matter, he has a maneh of mine. Fine? Or ‘he owes me wages’—I worked, he owes me wages—and similarly in all such cases. And the respondent answered and said, ‘I owe nothing,’ or ‘you have nothing in my possession,’ or ‘you are lying’—it doesn’t matter, one of these statements—this is not a proper response.” We don’t accept that statement from him. Why? “Rather, the court says to the respondent”—the respondent is the defendant, yes—”respond to his claim and explain your answer just as he explained his claim.” He explained: you robbed me, wages, and so on. You tell me what? There were no wages? No robbery? You need to explain. Don’t just say he’s a liar. “He’s a liar” is a declaration. I want you to say what your position is. Okay? “And say whether you borrowed from him or did not borrow, whether he deposited with you or did not deposit, whether you robbed him or did not rob him, whether you hired him or did not hire him, whether you paid or did not pay, and similarly with all other claims.”

“And why do we not accept this response from him?” What’s wrong with saying “he’s a liar,” and that’s it—I’m in possession, done, let him bring evidence. Why isn’t it enough to say, “He’s a liar,” and that’s it? Why must he specify? What lies behind Maimonides’ question? Because the litigant has no evidentiary dimension. After all, the fact that he specifies won’t help—we don’t see his details as testimony about what happened there. He’s a litigant. So why do you need detail? He says he’s a liar and that’s it; now start the case. Why do I need to specify? Maybe it will remind him of the claim? Maybe this itself is a claim? He’s a liar, it’s mine, he’s a liar. But it isn’t always a matter of truth or falsehood; maybe something really happened and he doesn’t remember. That is what he writes. We are just about to see it.

But I am asking: what lies at the root of the difficulty? You have already moved to the answer. What lies behind the question—why should he specify? The answer is: unlike what happens in court today, where the court summons the litigants and questions them and they go up as witnesses onto the witness stand, in a religious court that is not what happens. When a litigant comes up, he comes up to make claims, not to give testimony. And the implication is that even if he describes what happened, as far as we are concerned it has no evidentiary weight. We don’t know what happened, even after he spoke. What he says is only what he wants us to rule. He wants us to rule that he did not borrow and therefore he does not owe the money and the money should remain with him. And if he didn’t borrow, then he doesn’t owe? Yes—let’s say he claims he didn’t borrow. We do not learn from this that he really didn’t borrow, because it has no evidentiary weight. He is only telling the court what he wants, what conclusion he wants us to reach. Now we will hear the witnesses and see whether we should reach that conclusion or not. Therefore he has to specify his claim not in order to teach the court what happened in reality. So Maimonides says: if so, why specify at all? Let him say the other guy is a liar and that’s it. What’s the problem? The money is mine, enough—that is a claim. After all, describing what happened is in any case not the role of the litigants before the court, but of witnesses or evidence.

Maimonides says: “And why do we not accept this answer from him? Lest he be mistaken in his understanding and come to swear falsely. For it is possible that he did indeed lend him as claimed, and this one returned the debt to his son, or to his wife, or gave him a gift against the debt, and imagines in his mind that he is exempt from the debt.” What is he saying? Sometimes a person isn’t a great jurist, so he says, “I owe him nothing.” Fine? Why does he think he owes him nothing? Because he took the loan and returned it to the lender’s little son. Fine? According to Jewish law, returning a loan to the little son does not count as returning it, because there is no responsibility there; maybe he will lose it. You need to return it to the person who lent it to you. But I don’t know that; I’m not a halakhic expert. So I’m speaking truthfully, like the one imagining things that we discussed. I’m not trying to lie. I sincerely think I repaid; I am simply mistaken in terms of Jewish law. So we want to check with him, because if he reveals to us what really happened—tell us what happened, to whom did you return it, when, what happened there—and we discover that he returned it to the little son, then the matter is over; no evidence is needed. Because we know he did not repay. Not because it became clear to us what happened, not because what he says is evidence of what happened, but because someone here is no longer making a claim. Because once you claim that you returned it, and that doesn’t count as returning it, then from a legal point of view you are not making a valid claim. Fine? Not because we learned what reality was—notice. We are not using the litigant’s statement as testimony, as testimony about reality. But we do want you to tell us what happened there, so that we can see whether you are really correct in what you say. You may have a legal mistake, not a factual one.

“Therefore we say to him: How can you say, ‘I owe nothing’? Perhaps according to the law you are obligated to pay and do not know it.” Maybe you don’t know you are liable, but really you are liable. You have a halakhic mistake. “Rather, explain the matter to the judges and they will tell you whether you are liable or not liable.” Fine? That’s what they say to him.

Now the important part for our issue: “And even if he were a great sage…” So then what? Then he knows? What does he know? He knows the laws, and therefore what? He knows that if he returned it to the child… Exactly. We don’t have Maimonides’ concern—that maybe he returned it to the little son and thought that counted as repayment. He is a great sage; he knows the Jewish law. He knows that returning it to a child does not count as repayment. So what’s the problem? So if he is a Torah scholar, then maybe it really is enough for him to say, “That man is a liar, I owe him nothing,” and that’s it. No need to specify. If the whole reason a person must specify is that maybe he is mistaken in Jewish law, then if we have a clearly established Torah scholar who obviously is not mistaken in Jewish law, then there is no problem at all. No need for him to specify. But Maimonides says he still has to. Why? If the explanation is what I said earlier, then why even in the case of a Torah scholar?

So Maimonides says: “Even if he were a great sage, we say to him: You lose nothing by answering his claim and informing us how it is that you do not owe him, whether because these things never happened, or because they did happen and you returned it to him.” And what do we say to him? More than that: the great sage not only has no need to specify—no need, no need—we still want to know what to investigate; maybe he is lying. We want to investigate. A Torah scholar can lie. We still need to know what he is claiming. Tell us: you returned it? When did you return it? Then accordingly we will look for testimony and evidence. So he does need to specify.

But the point is even more than that. The Torah scholar asserts his rights. He says: I don’t want to specify, because I know that my true claim is a weak one. I know I repaid before the due date, for example. I know—I really went and repaid before the due date. And I am a Torah scholar. I know that if I tell the truth, that I repaid before the due date, you will obligate me to pay. You won’t believe me. Now the truth is that I really did repay before the due date. So I calculate and say: fine, then I’ll keep my mouth shut. I’ll preserve my right to silence. I’ll say, “I owe nothing.” And that is true—I don’t owe anything. Now you want me to specify. When did you pay? Did you pay? Once I specify, I’m shooting myself in the foot. And I know the truth—that I really repaid before the due date. I do not need to pay. But you won’t believe me, and from your point of view rightly so. So let me stay silent. Let them bring evidence. Fine? That’s a perfectly legitimate argument. More than that: maybe in such a case it is even legitimate to lie—say, I repaid after the due date. No, Maimonides doesn’t allow that. Maimonides says no, you will specify to us what happened. That’s exactly the point. I am only saying why Maimonides needs this, because that Torah scholar does not want to specify. In principle he could even lie, but at least not specify—because he knows he is going to lose. That’s the point of the Torah scholar. Not only is there no concern that he will think returning it to the little son counted as repayment. No—more than that. The Torah scholar knows that he may lose by telling the truth.

And to that Maimonides gives the following brilliant answer. We tell him: “Answer his claim and inform us how it is that you do not owe him—whether because the matter never occurred, or because it did occur and you returned it to him. For we judge according to ‘since he could have said…'” Migo. We use the reasoning of migo in court; don’t worry. Why? Because migo means he could have said in any case… What does this mean? There is a migo, they tell him. And then what? In any event you will prevail. You will make the weak claim that you repaid before the due date, but you have a migo because you could have made the stronger claim that you repaid after the due date. Right? And what are you claiming now? That you repaid before the due date. You want to lie and say, “I repaid after the due date,” because you know that if you say “I repaid before the due date” you won’t be believed. Don’t worry. Tell the truth that you repaid before the due date. Why? Because we will still give it the force of the alternative claim that you could have made. You won’t lose by making a weak claim. You will always receive the force of the… Exactly.

The stronger claim became weaker? No, we’ll get to that shortly. That’s another… we’re not there yet. Soon enough. We’re still not there. But what Maimonides says here is brilliant. Maimonides says: look, sometimes a person lies precisely in order to tell the truth. Meaning, he wants to say that he repaid after the due date even though the truth is that he repaid before the due date. Fine? Because he knows—he’s a Torah scholar—he knows that if he says he repaid before the due date, he will not be believed. Don’t worry. Whatever claim you could make, the strongest one in the world—that is the force you will have. Even if you made a weak claim, the force you will have is the force of the strong claim.

Now understand that what is written here in Maimonides is the principle of migo as force of claim. Explicitly in Maimonides. Not in later authorities—explicitly in Maimonides here. Because “why would I lie” is not relevant here. It’s not that we’re telling him, “We will believe you because of migo”—that is not “why would I lie.” He is saying: don’t lose by telling the truth. You want to lie and not say it? Don’t lose by telling the truth, because we judge by migo, don’t worry. So we judge by migo—we place the migo in his mouth. Now go tell me that migo proves he isn’t lying, when he wanted to lie in the first place. We are telling him: don’t lie. This is not migo of “why would I lie”; this is migo of force of claim. It says that the force of the strongest claim available to you is the force you will have, even if you made a weak claim. This is really migo as force of claim in Maimonides.

Now, this is so beautiful, because Maimonides is basically saying that migo enables a person to tell the truth in court. Look what a beautiful thing this is. It’s not just some proof, some crooked little calculation of liars. Migo is a legal principle whose role is to bring out the truth in court. If there were no migo, honest people, truthful people, would come and lie in court. In other words, we have a legal principle according to which it is worthwhile to judge by migo. Not just that migo renders someone credible—this is much stronger than that. It is worthwhile to judge by migo. This is a different explanation from the explanation of possession. Because here the explanation is: I will give you migo because it is worthwhile for me. Not because you become the one in possession and we have all kinds of cold formal legal calculations. Here the calculation is substantive. It says: if I judge by migo, then a person will have no incentive to lie. Very nice, I think.

Except that this raises the question that Yehudit asked earlier, which everybody asks. Now the opposite problem arises. If you don’t judge by migo, then people will lie, right? Now because you do judge by migo, people will lie. It’s upside down. They will make the weaker claim because they know they will have a migo by virtue of the stronger claim. If they made the stronger claim, they would win the case because it’s a strong claim. But to win because of a strong claim doesn’t mean you told the truth; it just means there is no evidence to extract from you. You have a good claim, the other side brought no evidence, take the money. But if I make the weaker claim and I have a migo because I could have made the stronger claim, then I leave court vindicated—I brought proof in my favor, proof that I am right. So it’s worth my while to make the weaker claim; it becomes a better claim now, by virtue of the fact that we have the principle of migo.

Why? But if I have a better claim, then there too I would win, so why would I claim…? Because the stronger claim—say I say, “I returned it,” with a migo that I could have said, “It was lost by unavoidable accident.” If I had said it was lost by unavoidable accident, they would rule in my favor not because they believe me that it was lost by unavoidable accident, but because no proof was brought. There is no proof, nothing brought against you; who knows, maybe you are still a liar. In the newspapers it will be written that you’re a liar like anyone who wins for lack of evidence. Okay? But if I say, no, I returned it—and know that I am speaking truthfully, because if I were lying I would have said it was lost by unavoidable accident—then now they rule that I spoke the truth, not just that the money stays with me. It’s worth my while to make the weaker claim, because I come out looking like a hero, yes, like a truth-speaker.

And now the opposite problem to Maimonides’ concern arises. Maimonides is worried that if the books of Jewish law had no migo, then upright people would come and lie. So what do we do? We institute migo. Now that we instituted migo, now the liars will come and lie. No—not that liars will come to lie; they lie anyway. Right, but now they’ll have motivation to lie using the weaker claim and be believed via migo. There is a legal logic to that. Yes. That is the big question: why doesn’t migo cut off the branch it itself is sitting on? I asked you this in the source sheet. Right. Because the very existence of migo turns the weaker claim into a good claim. But if it is a good claim, then the other one is no longer better than it, so there is no migo. Right? The whole migo is built on the fact that the alternative would have been better. But after everybody knows that we judge by migo, then it is no longer better—the weaker claim is just as good. So there is no migo anymore. Fine? More than that, as you said, it’s even stronger than that: the weaker claim not only becomes equal, it becomes even better, because here I really bring proof that I am speaking truthfully.

Now here there is a beautiful answer. Some people want to say it’s some kind of circle: fine, so you’ll say there is no migo? But then if there is no migo, once again the stronger claim comes out better… it’s a circle. The question is where to stop the circle. There is a much better answer. What are you worried about? Liars? There is no point worrying about liars. Liars will always lie. Because a liar will always win: if he’s a liar, then if he can’t use the weaker claim because there is no migo, he’ll use the stronger claim. He will lie in whatever way helps him win. There is no way around that. All that remains for you is to ensure that at least someone who speaks truthfully will not be forced to lie. Therefore we have migo. I think that’s very beautiful. Therefore we have migo, so that at least someone who speaks truthfully will not lie. Someone who is a liar will lie with the weaker claim, with the stronger claim—he will win either way. We have no way to deal with him. Unless we bring evidence against him and catch him lying. But if not, then liars always win; there is nothing to do against liars. Therefore there is no point in trying to prevent lies, because you won’t succeed in preventing lies. All you need to do is prevent lies by upright people. Don’t force upright people to lie.

Dawkins once said that in every society there are good people who do good deeds and bad people who do bad deeds. But only in a religious society are there good people who do bad deeds. There is something to that, even though it isn’t entirely true, but I think there is something there. There is also a continuation to that—that they do it in the name of God. Yes. The principle is that sometimes you get a situation where righteous people have to do bad things. You force them to lie. Migo is meant to prevent that. That is what Maimonides is saying.

But that also clarifies for us the answer to the opposite question. How can you have migo, if by doing so you undermined the very ground beneath migo itself? Because you turned the weaker claim into one as good as the other claim. Not true—yes, in a sense true—but once I did that I gained the upright people. The upright people at least will not lie. Liars will always lie, but the upright people at least will not lie.

Now notice: if I am right about this, we come to a revolutionary conclusion—that there is no “why would I lie” in migo at all. There is only force of claim. Not only is there also force of claim; there is no “why would I lie” in migo at all. There is only force of claim. And where did “why would I lie” come from? “If I wanted to lie, I would have lied better”—that’s not true. A liar would lie this way, would lie that way, he always lies. Better for me not to lie. If I am an upright person, then believe me that I am not lying. Now, if I know you are an upright person, I believe you that you are not lying—so it is irrelevant. Only an upright person can say, “Believe me that I am not lying, because if I were lying I would choose a better lie”—that is a good argument when it comes out of the mouth of an upright person. In Maimonides’ sense: he says there is no point in lying because there is migo. Right? But for the swindler this is irrelevant. You cannot prove that the swindler is speaking truthfully by this reasoning. You can prove that an upright person does not lie. That you can prove. But if he is an upright person, why assume he is lying? You don’t need it. So migo completely lost the power of “why would I lie”; all that remains is force of claim within migo. It’s just a wonderful move. I love this point.

Where is this found? No, in Maimonides is only the first step—that it comes to ensure that the upright person will not lie. Now I ask in light of this—but where is it? No, where is it that the upright person won’t lie? It’s written, explicitly written. Maimonides says, don’t worry that you’ll lose. No, it’s written exactly in what we read. He says: “You lose nothing by answering his claim and informing us how it is that you are not liable to him, whether because the matter never occurred, or because it did occur and you returned it to him, for we judge according to ‘since he could have said’ in any case.” Don’t worry—you won’t lose by telling the truth. You don’t need to lie. If you are an upright person who wants to tell the truth, don’t worry, you won’t lose.

But in the last part it came out that specifically the one who lies is not established as a liar. No, I didn’t read the last part. Leave that for now. I didn’t read it and I’m not going to now; there isn’t time. Fine, so that is the principle.

And in the end a completely opposite thing comes out. We begin by saying that it is “why would I lie.” Right—and then we run into all sorts of difficulties. Then we say, okay, apparently there is also force of claim. And in the end we discover there is only force of claim. There is no “why would I lie” at all. But why? For people who are speaking truthfully there is a “why would I lie.” Yes, but truthful people don’t need it. If I know he is speaking truthfully, then I believe him anyway. But we don’t know. If you don’t know, then either way: if he is a liar, this proves nothing, and if he is speaking truthfully, it proves that he is speaking truthfully—so you accomplished nothing. Either way. I don’t know if he is speaking truthfully, but I want to use the “why would I lie” reasoning for truthful people too, to give them force. No—with truthful people I don’t need to use that reasoning. Truthful people are truthful people. Why suspect they are lying if they are truthful people? I don’t know. Fine, but on the side that he is a truthful person, there is no concern that he is lying, right? And on the side that he is a liar, migo won’t help. So in any case migo does nothing here—except that it enables the truth-speaker to tell the truth in court. That’s all. It enables; it doesn’t reveal. Migo is a creative migo—it is a process whose role is to create a situation in court. Migo is not something passive that reveals to you what happened in court. Migo is a decision that creates something in court.

Just one final note. There are certain migos in which the “why would I lie” element does remain even after all this. For example, if I claim, “I owe you half,” with a migo that I could have denied everything. A regular migo is where I make two claims that have the same basic result, only with one of them I would manage to achieve it and with the other I would not. Right? But here, in the alternative claim, I would have succeeded in getting more money—not just in being more credible regarding the same amount of money. Fine? Here in any event the argument of “why would I lie” remains. Because if I had wanted to lie, I would have lied and gained one hundred, not fifty. Nobody will say, “I’ll make the weaker claim so that they believe me through migo”—you would lose fifty. You can say that I’ll make the weaker claim so that they believe me through migo only where the weaker claim gives you everything the stronger claim would have given you. But if there is a difference in what the claims give, then the migo of “why would I lie” remains fully intact. The whole discussion we have had up to now is not relevant to such situations. Okay?

I hadn’t thought of it like that. What? I’ll revise the summary and send it to you. Read it, and I hope it will help. I think it will. It appears in my booklet. It appears in my booklet. I gave you the booklet. Yes. Yes. Okay.