Ketubot Chapter 2, Lesson 3, Part A
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
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Table of Contents
- The components of migu and the shift from “why would he lie?” to “the force of a claim”
- Three explanations for the mechanism of “force of claim / credibility” in migu
- Critique of a “scriptural decree” without source or reasoning
- A litigant, evidence about the person himself, and the claim that migu is not evidence in the ordinary sense
- “Why would he lie?” as a device for preserving presumptive possession, not as proof
- Presumption, “by the testimony of two witnesses a matter shall stand,” and an analogy to the role of presumption
- Application in Bava Batra 5a: migu against presumption
- The transition to the topic of “the mouth that forbade” and preparation for the passage in Ketubot
- We do not invoke migu to extract: the status of the rule and the dispute among the medieval authorities
- Tashbetz: “This is not found in the Talmud at all”
- Tosafot in Bava Metzia on “two are holding” as a central source for the rule
- Tosafot’s question: migu for someone who says “half of it is mine”
- The weakness at the foundation: this is an atypical case of “extracting,” and three assumptions in Rivam
- Nimukei Yosef: rejecting the migu on the grounds of “equivalent claims” and an audacious migu
Summary
General Overview
The text presents a shift from understanding migu as “why would he lie?” to seeing its central foundation as ko’aḥ ta’anah, “the force of a claim,” and explores the implications of that for presumptive possession, while criticizing explanations that are not grounded either in a verse or in reason. The author proposes three mechanisms for understanding the credibility / force-of-claim component within migu, and concludes that migu, along with many presumptions, does not function as evidence in the evidentiary arena, but rather as a tool that defines the quality of the claim and the standing of possession. He then opens the discussion of “we do not invoke migu to extract,” argues that there is no explicit source for this in the Talmud and that it is really a dispute among the medieval authorities, and presents the main source in Tosafot on the Mishnah of “two are holding,” together with Tashbetz’s remark, while pointing to weaknesses in the conceptual foundation of the rule and to alternative directions of response such as Nimukei Yosef.
The components of migu and the shift from “why would he lie?” to “the force of a claim”
In previous lectures, migu was presented as the idea of “why would he lie?”—that if he had wanted to lie, he could have lied more effectively. After that, it was noted that some later authorities define in migu an additional component of ko’aḥ ta’anah or ko’aḥ ne’emanut, a force of claim or credibility, that is not identical with factual proof. The text formulates a surprising conclusion: the main thing in migu is the force of the claim, not the proof, because the evidentiary aspect of migu is directed toward the person himself, not toward the matter at hand.
Three explanations for the mechanism of “force of claim / credibility” in migu
The first explanation is attributed to Kehillot Yaakov, and Rabbi Shimon apparently goes in that direction too: someone who has a migu becomes a possessor, or his proper presumptive possession is strengthened until he is treated like an ordinary possessor and therefore wins by virtue of possession when the other side brought no proof. This explanation allows him to prevail even where there is no evidentiary value produced by the migu, as in an audacious migu, because the decision rests on his status as possessor. The second explanation, brought as a possible direction in Kovetz Shiurim, describes a “power of credibility” as a kind of transfer of force from a strong claim to a weaker one; the author objects that this lacks sufficient logic and there is no verse from which such a thing emerges in ordinary migu. The third explanation is attributed to Maimonides, and may perhaps also explain Rabbi Elchanan: according to this, migu is de jure rather than de facto, an artificial tool inserted into the laws of evidence in order to allow litigants to tell the truth without fearing that it will hurt them, since a liar can lie anyway and so this does not strengthen liars.
Critique of a “scriptural decree” without source or reasoning
The text identifies among some later authorities a conception of transferring force from one claim to another as though it were a kind of scriptural decree, and expresses resistance to such a move when there is neither an explicit source nor any reasoning that can be formulated. The author states that even when there is a verse, one may still look for the underlying logic; but where there is no verse and no evident reasoning, there is no justification for accepting the claim.
A litigant, evidence about the person himself, and the claim that migu is not evidence in the ordinary sense
The text argues that migu as evidence is evidence about the person himself, not about the issue itself, and such evidence is of no use for a litigant, because his disqualification does not stem from suspicion of lying but from the very fact that he is a party to the case—someone operating in the arena of claims rather than in the arena of evidence. The text compares this to not applying migu to relatives serving as witnesses, because even if it is clear they are telling the truth, a personal disqualification prevents accepting their testimony, so proof that they are truth-tellers is irrelevant. The text refers to the case of “he bent down and whispered” as a complicated topic in its own right and notes that it will not enter into it here.
“Why would he lie?” as a device for preserving presumptive possession, not as proof
The text raises the possibility that the distinction between “why would he lie?” and force of claim is not all that sharp, because “why would he lie?” can function as something that prevents the claim from being considered implausible, and in that way preserves possession. The text cites the Chazon Ish that one who makes an implausible claim may lose his status as possessor, and explains that migu can turn a claim into one considered reasonable; then the victory comes not from evidence but from his being a possessor. The text concludes that in most cases migu does not function as evidence that decides reality, but as a tool that stabilizes or weakens the status of possession through the quality of the claim.
Presumption, “by the testimony of two witnesses a matter shall stand,” and an analogy to the role of presumption
The text asks how a presumption such as “a person does not repay before the due date” can extract money if money may be extracted only on the basis of witnesses, and presents one possibility: that a presumption functions somewhat like witnesses—anan sahadei, as though “we are witnesses.” It suggests another possibility: that the presumption is not evidence, but makes a claim implausible; and when the possessor’s claim is implausible, his possession no longer helps him and he loses. The text illustrates this with the claim of repayment before the due date, and with an example from tort law where the very fact that the ox caused damage is evidence against the claim that it was properly guarded, to the point that without supporting proof it becomes an implausible claim.
Application in Bava Batra 5a: migu against presumption
The text points to the Talmudic passage in Bava Batra 5a regarding someone who claims he paid before the due date and has a migu because he could have claimed he paid after the due date, against the presumption that a person does not repay before the due date. The text explains that the discussion there is not about which side is “more evidentiary,” but whether after factoring in the migu and the presumption the claim still counts as reasonable, and consequently whether the possession remains intact. The text states that even there, the final ruling ultimately rests on possession, not on the intermediate proofs.
The transition to the topic of “the mouth that forbade” and preparation for the passage in Ketubot
The text explains that in the second chapter of Ketubot a new element appears, “the mouth that forbade,” which is a special kind of migu, and the discussion takes place in the context of litigation over a marriage contract. The text promises a more orderly introduction so as not to get tangled in the details of the give-and-take in the first chapter, and sets up “the mouth that forbade” as the future focal point.
We do not invoke migu to extract: the status of the rule and the dispute among the medieval authorities
The text presents the commonly accepted rule among halakhic decisors that “we do not invoke migu to extract,” and describes it as a basic assumption in the yeshiva world, while noting that Nachmanides is sometimes cited as an exceptional view holding that migu can be invoked to extract. The text argues that this is incorrect, because this is a major dispute among the medieval authorities, with a tendency among Spanish medieval authorities such as Nachmanides, Rashba, and their students to say that migu can indeed be invoked to extract, in contrast to the Tosafist school, even though in practical Jewish law the accepted ruling is that migu cannot be used to extract. The text stresses that there is no explicit source for this rule in the Talmud and that the discussion begins with the medieval authorities.
Tashbetz: “This is not found in the Talmud at all”
The text cites Tashbetz, who states: “As for what you wrote, that this jewel is in the mouth of the Talmud—‘we do not say migu in order to extract money’—this is not found in the Talmud at all,” and adds that this is “an explicit dispute among the commentators of blessed memory,” dependent on the interpretation of the Mishnah of “two are holding” and other passages. The text identifies Tashbetz as a sage from Algiers in the 14th–15th century, and places him together with Rivash among those who established Torah there.
Tosafot in Bava Metzia on “two are holding” as a central source for the rule
The text cites the Mishnah of “two are holding a cloak” and the first division in which each swears that he has no less than half in it and they divide it, and explains the wording of the oath as tailored to what the court actually awards. The text also cites the second case, “this one says, ‘all of it is mine,’ and this one says, ‘half of it is mine,’” in which the one who says “all of it is mine” takes three quarters and the one who says “half of it is mine” takes one quarter, and explains that the division rests on admission regarding one half and division of the disputed half.
Tosafot’s question: migu for someone who says “half of it is mine”
The text brings Tosafot’s difficulty: “He should be believed that half is his, by migu, because if he had wanted he could have said, ‘all of it is mine,’” since if he had wanted to lie he could have claimed “all of it is mine” and received at least what he is now asking for. The text presents Rivam’s answer in Tosafot: “For we do not say migu in order to extract, because with regard to the second half this one is in possession just like that one,” and identifies this as one of the main sources for the rule.
The weakness at the foundation: this is an atypical case of “extracting,” and three assumptions in Rivam
The text argues that this is a problematic source, because the case is not a typical case of extracting, since both are physically holding the cloak and the legal question is how to define a situation of shared possession. The text formulates three assumptions required by Rivam: that both sides are considered possessors of the disputed part; that even when both are possessors the migu is still defined as a migu used to extract; and that we do not say migu in order to extract. The text states that none of these assumptions is uncontested, and that the dispute among the medieval authorities could concern one of the first two assumptions without necessarily disputing the rule itself.
Nimukei Yosef: rejecting the migu on the grounds of “equivalent claims” and an audacious migu
The text cites Nimukei Yosef, who asks why the claimant should not take half with an oath by migu, since if he had wanted he could have said “all of it is mine,” and answers: “Because we only say migu where the claims are equivalent.” The text explains that according to Nimukei Yosef, here the claims are not equivalent, because it is easier for a person to say “half of it is mine,” which is not as brazen, than to say “all of it is mine,” which would require full audacity; therefore the migu is weakened as an audacious migu. The text uses this to show that one can reject the migu here without proving from this a sweeping rule that migu cannot be used to extract.
Full Transcript
[Rabbi Michael Abraham] In the previous lectures we looked at the topic of migu. I talked about “why would he lie?”, which is the basic conception of migu—the consideration that if I had wanted to lie, I would have lied more effectively. After that I said that the later authorities show that there’s another component, or another dimension, to migu: the force of a claim, force of credibility, and so on. I suggested three explanations for this second mechanism. The first explanation is Kehillot Yaakov, and Rabbi Shimon probably goes in that direction too: someone who has a migu becomes a possessor, or this strengthens the possession he ought to have, and he becomes a regular possessor, and then he wins simply because he is in possession—not because the migu proves he is right, but because once he is a possessor and the other side brought no evidence, then he wins. And therefore even where there is no evidentiary value coming from the migu, such as an audacious migu, the person can still win, because in the end he is in possession. The second explanation—which isn’t really an explanation but more of a rather odd conception—is what appears in Kovetz Shiurim, what he apparently calls force of credibility, not force of claim, sort of like electricity: if you can be believed on claim A, they transfer that power to you so that you can also be believed on claim B even though it is weaker. The question is why that should be true if there’s no explanation that gives any logic to it, and there’s no verse from which this comes—although later on, regarding “the mouth that forbade,” we’ll see that there is a verse—but for ordinary migu, at least in the simple sense, there isn’t. So then we need to understand what the idea is behind it. A third explanation, which is Maimonides, and I said that maybe this could also explain Kovetz Shiurim—because what Maimonides basically says is that migu is not de facto at all, but de jure. Meaning, we create migu artificially in order to improve the proceedings in religious court. It’s not that there’s some existing state of affairs and once you have a migu it gives you some ability to prevail, credibility, evidence, all those things. No—the opposite. We deliberately insert migu into the laws of evidence not because it helps us in some way as evidence, but in order to allow litigants, the parties to the case, to tell the truth. That’s all. And we lose nothing by this, as we said, because the liar can lie in any case, so this cannot strengthen liars. So if we lose nothing by it, then we introduce it in order to enable people to tell the truth. It could be that this is the explanation in Rabbi Elchanan, because in Rabbi Elchanan’s words I don’t understand what the explanation is. There is no explanation. So maybe he means this explanation of Maimonides, I don’t know. That’s the direction. In quite a few later authorities you can see that they understand this as some kind of scriptural decree—some transfer of force from one claim to another. And then that really is a third possibility that I don’t understand. I don’t think it is reasonable to accept such a thing, certainly not without a source, just because somebody says some reasoning. If you’re telling me some reasoning, then tell me what the reasoning is. Meaning, if you tell me it comes from a verse, I think that behind every verse there is also reasoning, but if I can’t find it, still, the verse said it, so it’s true. I can try to look for the reasoning and maybe I won’t find it. But where there is no verse and I don’t see any reasoning in the matter, why should I accept it? It’s not reasonable. So that’s what we’ve seen up to now. I’ll just remind you that in the end we came out with a very surprising conclusion, I would say: that the main thing in migu is specifically the force of claim and not the evidence. Because the evidence in migu, as I said, is evidence about the person himself and not about the matter itself. And evidence about the person himself doesn’t help when it comes to a litigant, because the reason we don’t accept what a litigant says is not because we suspect him of lying, but because he is a litigant. A litigant plays a different role in court. He doesn’t play in the evidentiary arena; he plays in the arena of claims, and he is basically asking the court what he wants them to do. His words have no evidentiary weight, not because we suspect him, but because he is playing a different role; he’s not on the evidentiary field. Now, if that’s so, then what does it help me to prove that he is telling the truth? I’m saying from the outset that he is telling the truth. So what difference does it make? That isn’t the point. It’s like I said that we wouldn’t apply migu to witnesses who are relatives. Why not? Because we don’t accept the testimony of relatives even if they are telling the truth. So if migu proves to me that they’re telling the truth, what difference does that make? Fine, they’re telling the truth—but because they are relatives, I still don’t accept their testimony.
[Speaker B] “He bent down and whispered”…
[Rabbi Michael Abraham] The case of “he bent down and whispered” is a complicated story; we won’t get into it here.
[Speaker B] Even if he had remained silent he would have been believed. So why do you need migu here?
[Rabbi Michael Abraham] No, that’s the question of why you need migu here. I’m not talking about the question why migu is needed. “He bent down and whispered” is a complicated topic in its own right. So the… the claim is that if so, then it really turns out that migu—by the way, this also comes out according to Maimonides—because Maimonides says migu is only there to allow people to tell the truth. And you see that migu, in its essence, is not an evidentiary claim at all, but something connected to the management of legal procedure, streamlining procedure, whatever you want to call it, and not in the evidentiary plane. The evidentiary dimension here is apparently marginal. Although in the Talmud we do see the language “why would he lie?” Meaning, the Talmud does see in migu some evidentiary dimension, and now that needs clarification. But in any case, even “why would he lie?”—I said that some later authorities have noted, I haven’t checked it fully, but in quite a number of passages this works: that where the Talmud calls it “why would he lie?”, there the Talmud is really referring to the evidentiary dimension. Where the Talmud calls it migu, it is talking about the dimension of force of claim or the formal dimensions. So that’s true, but I still ask: then what is “why would he lie?” After all, “why would he lie?” still proves that the litigant is telling the truth. So what? Even if he is telling the truth, I still don’t accept what he says. So how does that help? It doesn’t matter that it has a different name; the difficulty is the same difficulty. You want to use migu so that we’ll accept what the litigant says, right? Because of the reasoning of “why would he lie?” But when it comes to a litigant, we don’t accept what he says even where we have no suspicion that he’s lying. In principle, never. A litigant doesn’t play in the evidentiary arena. A litigant presents claims. A litigant is not a witness. So I have no issue with him that perhaps he is lying, so what does the migu help if it proves that he isn’t lying? No, no—that’s exactly what I’m claiming now. No. In light of the picture I described in the previous two lectures, something surprising comes out. What comes out is that the main thing, or the central thing—and maybe even the only thing—in migu is not “why would he lie?” at all. It’s specifically the force of claim. Because in principle “why would he lie?” shouldn’t have played any role at all. Since “why would he lie?” only proves that the litigant is telling the truth, but that was never my concern to begin with. Why do I care whether he is telling the truth or not? He is disqualified by virtue of being a litigant. And if two witnesses come and say that he is a completely righteous person who never speaks falsehood, so what? He is a litigant. A litigant has no evidentiary weight. I didn’t say it doesn’t exist; the reasoning exists. I didn’t say the reasoning doesn’t exist. But it shouldn’t—no, the reasoning of “why would he lie?” exists when migu is not force of claim, when migu is not “if he had wanted.” It exists. It doesn’t matter to me, but even if it exists, it’s irrelevant. I’m not claiming that it doesn’t exist; it exists, but it’s not important, it doesn’t help me that it exists. Since it proves at most—even if it exists, even if it’s true—that the litigant is telling the truth. So what? I never thought from the outset that he wasn’t telling the truth; that wasn’t the issue. That’s the question. So I’m saying, that’s the question. If this were evidentiary “why would he lie?”, I don’t understand it, because evidence here shouldn’t have changed anything. The evidence proves that he is telling the truth; it doesn’t prove that he paid. Right? It proves that he is telling the truth. Since he says that he paid and he is telling the truth, it follows that he paid. But it works through the fact that he himself is truthful; it is not direct evidence about the matter itself.
[Speaker C] Right, well…
[Rabbi Michael Abraham] It says that he is telling the truth, not that his claim is correct. It is not evidence that his claim is correct. I said, what happens in a case where he is imagining things? The migu won’t help. The migu doesn’t prove that the claim is correct. The migu proves that he himself is not intending to lie. Of course the conclusion would then be that his claim is correct, but the evidence is focused on the person, not on the claim and not on the reality. But if the evidence is focused on the person, what does that help? Evidence that the litigant isn’t lying is irrelevant, because the litigant is not evaluated on the question whether he lies or not; he is not a witness. So what? So what does migu help me?
[Speaker C] No, never.
[Rabbi Michael Abraham] What do you mean? A litigant… no, because in the case of the mute person, their words are not the evidence; reality is. They said he was mute, and I saw in reality that they were wrong. That’s not about the person himself. When the discussion is who the person is, it’s like “the murdered man came on foot.” There’s a discussion that the man died and we want to permit his wife to remarry. Then “the murdered man came on foot,” meaning he himself shows up—or someone is accused of murder, whatever—and “the murdered man came on foot”; there was no murder at all. That is certainly evidence, no problem, because it’s not evidence about the person himself. Here… here the person himself is the reality under discussion. So that’s just a description. But I’m speaking in a case where no—we’re discussing some other reality: whether there was a loan, whether there was a murder, whether there was something else. And then someone comes and claims that there was or wasn’t a murder. And I have evidence that the claimant is telling the truth. I don’t know anything about the murder, but the claimant is telling the truth. Or at least he doesn’t intend to lie. “Telling the truth” is too strong; rather, he doesn’t intend to lie. So what? If the speaker is a witness, then I understand. You have strengthened him, now I understand that he is telling the truth. Though then it doesn’t matter, because beyond testimony no migu will help—that’s what we discussed, migu for witnesses. But when the speaker is a litigant, what does it help me to have evidence that he isn’t lying? The reason I don’t accept the words of a litigant is not because I suspect him of lying, but because he is a litigant. So what is migu doing? It’s like migu for witnesses, like migu for anything disqualified by an intrinsic disqualification, not because of concern that he may be lying. So what does it help that migu proves he isn’t lying? Clear?
[Speaker C] So basically “why would he lie?” is always really only so that I’ll have a claim, that I’ll have…
[Rabbi Michael Abraham] Wait, holding and not holding—we’ll get to that today. Good question, but I want to leave it for now, because first I want to address migu used to extract.
[Speaker C] But basically, “why would he lie?”
[Rabbi Michael Abraham] I’m saying, apparently yes, that’s what I’m saying. For the moment it seems yes. Because the question is: what does migu help? Meaning, “why would he lie?” After all, the evidence is only evidence that the litigant is telling the truth. So what? The only thing migu can possibly do is give force of claim, not “why would he lie?” Right? So what I said—and I’m just reminding you so that the picture stays intact—I said that maybe the new distinction we’re making between “why would he lie?” and force of claim is not as sharp as it seems. Because it may be that what turns me into a possessor is “why would he lie?” We talked about the Chazon Ish, that someone who makes an implausible claim may not have his possession considered real possession. Now if I have a migu, then my claim does become a claim; and then it’s not that I win because I have evidence, but rather I remain a possessor and therefore I win. So migu, even in its evidentiary dimension—in its evidentiary dimension—ultimately just turns me into a possessor; it’s not that it is evidence in my favor. And then that’s fine. Therefore the migu of “why would he lie?” helps even a litigant, because we don’t view it as evidence that the litigant is telling the truth, but as evidence that his claim is not implausible. And that is relevant evidence, because when I ask myself whether he is in possession or not, I need to check whether his claim is reasonable. Because if his claim is unreasonable, then before I even enter the discussion I want to know who is considered in possession here. So someone who puts forward an unreasonable claim may lose his possession. Now when migu comes and says, no, no, his claim is in fact reasonable, then it’s not that he wins because of the evidence in the migu; rather, the possession he had anyway because he is holding the money does not dissipate, because his claim is considered a reasonable claim. That’s what “why would he lie?” does. So it turns out that even “why would he lie?” doesn’t function as evidence; it only restores me to being a possessor, and what I win is by virtue of being a possessor, not because of evidence. Nothing is functioning as evidence.
[Speaker E] What? Nothing functions as evidence the way we usually think? Why? What?
[Rabbi Michael Abraham] Two witnesses are evidence, of course they are.
[Speaker E] No, okay, right, but migu doesn’t function as evidence at all.
[Rabbi Michael Abraham] So that’s what I’m saying. Now according to this, migu does not function as evidence. The question is: what about a presumption? After all, I said this in the context of presumption. “A person does not repay before the due date.” Right? So what is that? A presumption extracts money. After all, you are suing me and I say I paid. So you are the one trying to extract from your fellow; you want money from me. And now they tell me that if I claim I paid before the due date—let’s say I have no migu—then I’m not believed. Why? After all, “by the testimony of two witnesses a matter shall stand”; money can only be extracted on the basis of witnesses. How can a presumption help? One possible explanation is that there are those who say a presumption also helps like witnesses. Anan sahadei—as if we are the witnesses. Fine. But it could be that the presumption only makes my claim an implausible claim, and then my possession—I’m holding the money and he is suing me—doesn’t help me. Because if together with my possession I make an implausible claim, then I’m not considered in possession. Then it comes out that just as I said regarding migu, so too regarding presumption. Neither migu nor presumption functions as evidence. Rather, they worsen or strengthen—both directions—the quality of my claim. And once my claim is good, then I win as the possessor. Once my claim is not good, even though I am in possession, I lose the money. But neither migu nor presumption is talking on the evidentiary plane of whether I am right or not; rather, on the plane of what the status is of the claim I am making. Then it comes out that even “why would he lie?” is basically just another mechanism that establishes my possession. It is not evidence in the ordinary sense. Okay? And even when the Talmud says “why would he lie?”, what it means is that there is a good claim here, and therefore my possession can help me win. It does not mean that I have evidence by virtue of which I win.
[Speaker C] In what case does possession get weakened because the claim is not good?
[Rabbi Michael Abraham] For example, someone who says he paid before the due date. That’s an implausible claim. Or someone who says he was a guardian, that he guarded his ox properly and it still caused damage. That’s what the Chazon Ish says—so then why did the ox cause damage?
[Speaker B] Apparently you didn’t guard it.
[Rabbi Michael Abraham] It could be that you guarded it and it happened under circumstances beyond your control, but that’s an implausible claim. What? In torts, you mean? I didn’t hear.
[Speaker C] Is this like Rabbi Eliezer, that a guardian guards it with a knife, so to speak?
[Rabbi Michael Abraham] No, no, no. I’m speaking on the evidentiary plane. Guarding—even without a knife—also works, you just have to prove that you guarded it properly. If you claim you guarded it properly and you have no evidence, then the very fact that the ox caused damage is evidence against you that apparently you did not guard it properly, because otherwise how did the ox cause damage? Unless you prove that you guarded it properly and the ox just went crazy. Fine, that can happen. But it’s so implausible that the fact that you are in possession won’t help you, because it’s like possession without a claim. Okay? And then it turns out that we basically leave everything in practice to the basic Torah law: “by the testimony of two witnesses a matter shall stand.” Money can be extracted only with witnesses. Presumption, migu, all these intermediate forms of evidence don’t function at all in the evidentiary arena. They function in the arena of who is in possession, or what the quality of the possessor’s claim is, and as a result whether he counts as in possession or not. Okay? But migu too is a consideration with evidentiary quality like witnesses. Right, migu is a good consideration as evidence—except I’m saying, because of the laws… no, this is a dispute among the medieval authorities. There are medieval authorities who say we do not apply migu to witnesses; there are medieval authorities who say we do. Let’s say with one witness against two witnesses, that might be migu against two witnesses maybe, but if there is a migu for one witness, it could be that it helps. Then it would be evidence. Then it would be evidence, right. There there is no problem; there it is migu in the sense of “why would he lie?” But in most cases in the Talmud, migu is said by a litigant, not by witnesses. And then I’m saying that even where I do relate to the evidentiary dimension of migu, in the end it still goes through strengthening the quality of the claim, through to the possession. So in the end I win not because I have evidence but because I am the possessor. Okay? Then we’re left with the Torah law, “by the testimony of two witnesses a matter shall stand”; only two witnesses can extract from someone in possession. All the other forms of evidence only determine who is in possession and who is not. They do not function against possession. Okay? That’s basically the claim. And if so, then even where the Talmud calls migu “why would he lie?”, I claim that even where it is speaking about the evidentiary dimension of migu, still that evidentiary dimension serves to create your possession—not that it says you have brought evidence. Okay? So then it works out. But then there really does emerge that surprising conclusion: that this innovation of the later authorities, which seems at first glance to go against the plain meaning of the Talmud, is actually the foundation of migu. And what comes out of the plain meaning of the Talmud is actually the side issue. In other words, migu in its essence is something that works on possession, not evidence. Even where it functions as evidence—in migu as “why would he lie?”—that is only a way of building possession, or building a claim that leaves possession in place. Okay? Then this is not migu used to extract, because I’m the possessor—yes, obviously this is migu used to retain. But that, as I said, we’ll get to. Okay? So that’s the picture overall. If I just complete the point in the Talmud in Bava Batra there on page 5, regarding migu against presumption: someone who says that he paid before the due date, and he has a migu because he could have said that he paid after the due date, and against him there is the presumption that a person does not repay before the due date. And they discuss there which is stronger, the migu or the presumption. Again, the discussion is not on the evidentiary plane. The discussion is whether, after both of them are taken into account, I can still relate to that claim as a reasonable claim or not. That is the Talmud’s question. But in the very end, after the claim is either reasonable or unreasonable, I will win or not win because I am in possession, not because of the evidence. In other words, both the migu and the presumption do not operate on the evidentiary plane; they operate to determine the quality of my claim. Can I rely on possession—does this claim hold enough water that I remain the possessor and therefore win, or not? Okay? I’m saying this is not the simple view. The simple view is that these really are evidence. But I think I lean toward this view; I think this view stands up better to logical scrutiny—both the logical scrutiny of Torah law, that migu should not help a litigant, and this duplication between force of claim and “why would he lie?” After all, I brought up the question: how can you say that migu is force of claim when the Talmud everywhere calls it “why would he lie?” So some say that in certain places it calls it “why would he lie,” in other places it calls it migu. But usually those are just synonymous labels, they’re synonymous labels. So where are you inventing force of claim from? And my claim is that “why would he lie?” is also force of claim. It’s just another way to generate force of claim, that’s all. Okay? Good. So that’s the summary of where we stand up to now. The next stage, I want to talk about migu used to extract, and then we’ll finally get to our topic. Just a quick clarification: have you started our passage? Have you gotten to it?
[Speaker E] Not yet, we’re only at the beginning, we talked with Moshe.
[Rabbi Michael Abraham] Okay, I think we’re not going to get to it today, and that may actually be better, because I need to give you a few introductions; otherwise you might get too tangled up there.
[Speaker C] Why can’t we just do what you wrote?
[Rabbi Michael Abraham] Without going into the details of the…
[Speaker C] Case.
[Speaker F] No…
[Rabbi Michael Abraham] It’s not three pages, it’s one page.
[Speaker F] If you bring some Tosafot, then at least I need to understand what it’s talking about.
[Rabbi Michael Abraham] No, no—understanding what it’s talking about is fine. Just don’t get into the underlying reasoning, what this is and what that is and what’s happening here and there—that can wait. Here, unlike the previous case where you objected, and maybe rightly so, here specifically I think you really can do this: read the Talmudic passage, understand what it says without getting into the first chapter and the passages there, and all the give-and-take, and where it comes from, and according to which view it works. The Talmud says this is according to Rabbi Eliezer, and that it does not work according to a certain interpretation—so just assume there is some Rabbi Eliezer there and that this interpretation doesn’t work; understand what the Talmud is saying, that yes. But you don’t need to get into the details and understand the difference between one case and another, because it’s pretty complicated, and really the main topic is in the first chapter. I don’t want to get into the details here, because that would mean going back to the second half of the first chapter. Here I’m only using it to show “the mouth that forbade” in Ketubot.
[Speaker B] We’re in chapter two.
[Rabbi Michael Abraham] Basically, the first Mishnah of the second chapter in Ketubot continues several mishnayot that finish the first chapter. Now, what is renewed here is the issue of “the mouth that forbade,” which is what interests me, because it is a very special kind of migu.
[Speaker B] Exactly.
[Rabbi Michael Abraham] Exactly, it’s a very special kind of migu. But the discussion of “the mouth that forbade” takes place in this passage that deals with litigation over a marriage contract, so there’s no choice—we can’t completely ignore that. What I’m saying is just: don’t get into the details of the litigation over the marriage contract. And if you haven’t gotten there yet, even better, because I’ll do it for you next time—or maybe I’ll even send you a page with more orderly introductions so it saves you all the complications there. Okay? Fine. So now I want to get into migu used to extract. The accepted rule among halakhic decisors is that we do not say migu in order to extract. Meaning, migu does not help to extract from someone in possession. That’s what almost every halakhic decisor—later authorities and lecture notes and everywhere you look—treats as a basic assumption, something simple and obvious. Is this in Tosafot or not? Wait, wait—not Tosafot yet, nothing yet; I’ve only just started.
[Speaker C] No, but what is the rule based on?
[Rabbi Michael Abraham] That’s what we’re going to discuss.
[Speaker C] So who introduced it? The Rif?
[Rabbi Michael Abraham] We’ll see, we’ll talk about that too. Okay, just a second. So that’s what’s accepted. If you ask yeshiva students and so on, it would never occur to them that anybody disagrees with this. “We do not say migu in order to extract”—it’s a well-known and famous thing. At most there are some who know that there is such a Nachmanides, who says that we do say migu in order to extract, and he’s always brought as some exceptional opinion. But that’s not true. This is a major dispute among the medieval authorities, and I’m not even sure the majority say that we do not say migu in order to extract. There is a major dispute: Spanish medieval authorities versus Ashkenazic medieval authorities, the Tosafists. That is, there are Nachmanides and Rashba and all their students—all the early Spanish authorities—who tend more in the direction of saying migu to extract, that even migu to extract is said. But in practical Jewish law, it is indeed accepted to rule that we do not say migu in order to extract. Okay? But there is a dispute about this. Where does the whole thing come from? In the Talmud itself this rule does not appear.
[Speaker E] In a case where I’m claiming something that isn’t in my possession? I “Ashkenazified” it. Ah, okay—she’s saying, according to this rule I’m arguing…
[Rabbi Michael Abraham] That’s perfectly fine. I’ve already said in previous years, when this came up, that the fact that someone was born Sephardi or born Ashkenazi does not obligate them to agree with the sages of Ashkenaz or the sages of Sepharad. You need to do what you think is right, not what the people of your ethnic community say. I don’t understand why communal background is relevant to these things. Okay, in any case, to our topic: there is no source for this in the Talmud. They always quote “we do not say migu in order to extract”—there isn’t one, there’s no source for it in the Talmud. This discussion begins with the medieval authorities. The main source for this is basically Tosafot in Bava Metzia that I pointed you to, because at the beginning of Bava Metzia there is a sentence from Tashbetz that I just want to read to you; I didn’t point you to it.
[Speaker E] It appears in the article.
[Rabbi Michael Abraham] Ah, exactly, yes. So in Tashbetz he writes there: “As for what you wrote, that it is a pearl in the mouth of the Talmud that ‘we do not say migu in order to extract money’—this is not found in the Talmud at all,” says Tashbetz. There is no such rule in the Talmud. “Rather, it is a dispute among the commentators of blessed memory.” Right? It is a dispute among the commentators, not something simple at all. “Whether we say this or not.” “And this depends on the interpretation of the Mishnah of ‘two are holding’ and other places.” The Mishnah of “two are holding” is the Mishnah at the beginning of Bava Metzia. So let’s take a look at it for a moment. What? Who is Tashbetz? Tashbetz is one of the sages of Algiers in the 14th–15th century, I think even the 14th–15th. Okay? He and Rivash were basically among the important early figures who established Torah in Algiers, in the East. Even before the expulsion from Spain, by the way. Rivash—I don’t remember exactly—there had been some earlier expulsion, and they came to Algiers in that earlier expulsion. Anyway, so the Mishnah says this at the beginning of Bava Metzia. I’ll read it to you—you don’t have it in front of you, but you saw it. “Two are holding a cloak; this one says, ‘I found it,’ and this one says, ‘I found it’; this one says, ‘All of it is mine,’ and this one says, ‘All of it is mine.’” Okay? Two people are holding a cloak, they go to court. Each one says, “The cloak is mine. I found it and then he jumped me and grabbed it; I picked it up”—that’s what both of them are saying.
[Speaker F] In Bava Metzia, isn’t it about a cloak that both of them bought together?
[Rabbi Michael Abraham] That’s possible too. The Talmud there, later on that same page, brings what happens with a sale. It’s not so simple, but at least according to one Tanna it applies there too.
[Speaker F] Isn’t that the same thing?
[Rabbi Michael Abraham] No, it’s not so simple. According to one Tanna it is said there as well, about a sale. Okay?
[Speaker F] But here it’s talking about a found object.
[Rabbi Michael Abraham] Yes. In the plain meaning of the Mishnah, we’re talking about a found item. One says, “I found it.” The Mishnah is dealing with a found object. So each one swears that he has no less than half of it, and they divide it. Why doesn’t he swear that he has half? Because he says, “It’s all mine,” and he can’t swear to a claim that contradicts what he’s saying. So we’re trying to find a formulation of the oath that will let us give him half. Exactly. So let him swear: at least this half that you’re giving me, I swear is mine. I actually claim more than that, but of course we don’t accept that. So swear to me in a way that doesn’t contradict your claim, but is enough to ground our ruling. Okay? So that’s the first part. After that the Talmud says—the Mishnah, sorry—this one says, “It’s all mine,” and this one says, “Half of it is mine.” The one who says, “It’s all mine,” swears that he has no less than three parts in it—three quarters. And the one who says, “Half of it is mine,” swears that he has no less than a quarter in it. This one takes three parts and this one takes a quarter. Okay? The one who says, “It’s all mine,” takes three quarters; the one who says, “Half of it is mine,” takes a quarter. What’s the idea? About the half that I admit is yours—the half that I say is mine—about the other half, after all, I admit that it’s yours. So first of all, take that, because on that we both agree. About the half that I claim, you don’t agree with me—you want it too. So over that half we divide: a quarter for me and a quarter for you. Therefore you get three quarters and I get a quarter. Okay? By the way, it’s an interesting mathematical topic; Aumann has an article about it, for those who know, yes. What do I mean? What happens if they aren’t both holding a cloak, and each one claims pi i is mine, and the sum over pi i, where i goes from one to n greater than one? The question is how you divide it; there’s a general algorithm. Okay? Once I was hospitalized in a hospital and tried amusing myself with this topic. It’s a complicated mathematical question, and from the Talmud you can derive several methods of division. It’s not uniquely determined. The question is how to decide what that method of division should be. Fine.
[Speaker E] And why here does the one claiming, “It’s all mine,” not swear that at least half is his, but rather three quarters? I didn’t understand. The one who says, “It’s all mine,” in the first case where they split half-half, swears that only half is his—that he has no less than half. In the second case he swears that he has no less than three quarters.
[Rabbi Michael Abraham] Obviously, because that’s what he gets.
[Speaker E] He swears in advance about what he’s going to receive.
[Rabbi Michael Abraham] Yes. In the first case too, he swears about what he’s going to receive. He’s going to receive half, and he swears about half. Here he gets three quarters, and he swears about three quarters.
[Speaker E] I would have expected someone to swear about what he thinks is his, not about what he’s…
[Rabbi Michael Abraham] No, that’s what I said before. According to that, he would have had to swear that it’s all his. But we don’t rule that way. So it comes out that we would actually be forcing him to swear falsely. We don’t do things like that in a religious court. What we do is this: regarding what we are giving you as a matter of law, reassure us with an oath that we’re not committing an injustice. Swear that it is coming to you. You’re getting three quarters? Swear that you have no less than three quarters. Okay? We don’t make you swear that the whole thing is yours, because if you swear that the whole thing is yours and we give you three quarters, then we’ve said that you swore falsely. Exactly like in the first case. But he believes that’s true. He believes that’s true, but we don’t believe him, and we rule against him.
[Speaker C] We won’t force a person to swear falsely. No, and then it comes out… if in truth the second person is entitled to fifty percent, then he is swearing falsely about twenty-five percent. Why? No, the one who says, “It’s all mine,” gets three quarters. The one who says, “It’s all mine,” swears about three quarters, and he’s lying about half. Anything is possible—that’s why we make him swear. If it couldn’t be that he’s lying, why would we make him swear? But I’m saying, as an assumption, forcing a person to swear about half is okay, because in any case he has half. Why in any case does he have half? Maybe he’s lying and he really came after the other one?
[Rabbi Michael Abraham] Because the other one already admits that he has half.
[Speaker F] Fine, so what? So in any event there’s a high chance that it’s certain.
[Rabbi Michael Abraham] If the other one admits it, then what does he need to swear about? They both admit it, so why swear? He swears only about the extra quarter that he receives.
[Speaker F] But then we get to this case of migo, because this one—
[Speaker E] —who said I only have half…
[Rabbi Michael Abraham] Fine, that’s the next question. The next question is what happens here with migo, but first let’s try to lay out the background.
[Speaker E] And why is there some assumption here that they’re equally balanced, both of them? Because there are no proofs, because there isn’t… they’re not equally balanced.
[Rabbi Michael Abraham] They’re both holding it. They’re equally balanced with respect to the part they’re disputing.
[Speaker E] No, I’m saying, in both of these cases here, also in the first case where it’s “It’s all mine”… In their credibility? Yes. In both of these cases here in the tractate, there’s an assumption that we rely… we have no evidence to rule by, and therefore we simply make a compromise of half-half.
[Rabbi Michael Abraham] Correct, in every case regarding the part that is in dispute.
[Speaker E] Right. Regarding the part that is in dispute.
[Rabbi Michael Abraham] So what’s the problem?
[Speaker E] It’s a little strange in the second case where he says he has half…
[Rabbi Michael Abraham] Why? There’s half of his that’s in dispute, so take it, right? On that they both agree. And now what’s left? What’s left is a case of “It’s all mine”—this one says, “It’s all mine,” and this one says, “It’s all mine”—about the half.
[Speaker E] But why present it that way?
[Rabbi Michael Abraham] There’s no real clarification. That’s what we’ve got. What are we supposed to do with real clarification?
[Speaker E] What we’ve basically grabbed together is half mine, half his. Right. And the second one says no, it’s all mine.
[Rabbi Michael Abraham] Right. I grabbed it by myself. We don’t believe either one, but what can we do? We have no evidence. We somehow have to decide. No evidence—the religious court doesn’t have divine inspiration. What is it supposed to do? What it has is what the parties say. So what it does is say: divide it.
[Speaker E] So the one who said he had only half really should have said, in order to receive…
[Rabbi Michael Abraham] So that’s already the migo. Wait, we’ll get to that in a moment—that’s already the migo. But first of all, these are the laws, that’s it, that’s the background. Now the question starts. Tosafot in the Mishnah—and the other medieval authorities (Rishonim) also struggle with this. Tosafot there says: “And this one takes a quarter. And if you say, let him be believed that half is his by migo, since if he wanted he could have said, ‘It’s all mine’? As we say in the Talmud, this very migo should exempt him from an oath—it doesn’t matter—were it not for the concern that perhaps he is being cunningly deceptive,” and so on. It doesn’t matter right now what Tosafot’s source is, but Tosafot says: why shouldn’t we believe him by migo when he says, “Half is mine”? He could have claimed, “It’s all mine,” and gotten the half that he wants. So he says to him: friends, if I had wanted to lie, I would have said, “It’s all mine,” and gotten half. Now I’m telling you the truth, that half is mine—believe me that half is mine. Why are you giving me only a quarter? Give me the half. Okay? That’s Tosafot’s question. And Rivam explains that we do not say migo in order to extract, because regarding the second half this one is in possession just like that one. This is actually one of the main sources for the rule that we do not say migo in order to extract. Now notice, this is a very, very atypical case, very far from simple, where it is actually being said that this is migo in order to extract, and therefore you have to understand that this source is on very shaky legs if you want to derive from here the principle that we do not say migo in order to extract. Why? Because first, you have to show me that this really is a case of extraction. Who says it’s a case of extraction? You’re assuming that the other one is in possession.
[Speaker C] But they’re both holding it!
[Rabbi Michael Abraham] Who says? Tosafot assumes so, that both are holding the cloak. Now the question is how we define such a situation legally. You could say three things. You could say that if two people are holding something—by the way, we’re talking only about the half over which there is a dispute. About the half over which there is no dispute, there is no discussion. Regarding the half that is disputed, the second case in the Mishnah is like the first case. There is no difference, right? Exactly.
[Speaker F] Why present it that way?
[Rabbi Michael Abraham] Meaning to present—
[Speaker F] —it as half and whole. Ah, because of the migo. As if the whole form of presentation is only to—
[Rabbi Michael Abraham] —raise cases, but we said that the second case is like the first. What’s the problem? How? What? The Mishnah brings two cases in order to tell you that in the second case, which is in fact like the first, it’s like the first regarding the half that is disputed. The second half, give it to him. That’s what the Mishnah is bringing. What’s the problem?
[Speaker F] And why bring this case at all—only maybe to allow a question of migo? I don’t see why. I mean, otherwise it’s exactly the same thing.
[Rabbi Michael Abraham] If regarding the half they don’t dispute, you need to be told that it’s the same thing. It says to you: look, about that half you admit—take it—so the other one takes it.
[Speaker F] Why shouldn’t I think it’s the same thing?
[Rabbi Michael Abraham] I don’t know, for all sorts of reasons. If there’s a dispute here, then there’s a dispute.
[Speaker F] Maybe because, maybe because when he says he takes only half, he—
[Rabbi Michael Abraham] —introduces the migo, the possession status, you could say a million things. For example, I could have said even without the migo: let’s say both parties are in possession of the entire cloak, because I’m holding the cloak and I’m holding all of it, and you too are in possession of the entire cloak. Then what difference does it make if I say, “Half is mine” and you say, “It’s all mine”? Let’s split it half-half. We are both in possession, there is no evidence for either side, each one should get half. I might have thought such a thing. Along comes the Mishnah and says no: we go only by the part that is disputed.
[Speaker C] But the moment you say, “Half is mine,” you’re admitting that the other half is his.
[Rabbi Michael Abraham] But the half that is mine, I claim is entirely mine. So give him that half, and give me my half, because in any event we are each in possession of half. So give each one what he is in possession of—what’s the problem?
[Speaker F] But why would you reduce the other’s half?
[Rabbi Michael Abraham] I’m not reducing anything from the other. I’m in possession of this half, and he is in possession of the other half.
[Speaker F] But there is no claim here of half mine and half mine.
[Rabbi Michael Abraham] Exactly. But the possession status is over the whole thing. Their claims contradict each other. In terms of possession they are symmetrical. So if we are both in possession of the whole cloak, then let’s say the law says give me half and him half—and after all, about half I have a claim, right? So why shouldn’t you give me the half? I’m in possession of the whole cloak, and with regard to half my possession is accompanied by a claim, because my claim also says that I deserve half, not a quarter. Right. Not a quarter—half. I claim, “Half is mine.”
[Speaker F] No, about the one who says, “It’s all mine.”
[Rabbi Michael Abraham] Fine, but I’m talking about the one who says, “Half is mine.” So the one who says, “Half is mine,” is in possession of the whole cloak just like the other one, right? So let’s say that if he had said, “It’s all mine,” and the other said, “It’s all mine,” then it would be half-half. Now maybe it could be half-half even if I say, “Half is mine.” Why? Because after all I am in possession of the whole cloak exactly like he is. Were it not for my claims, really it should have been divided half-half, right? Only now I’m telling you, “Half is mine.” So what’s the problem? About the half that is mine in any case, I also have a claim—I claim that it’s mine. Give me that half. Why are you deducting a quarter from it? One could have said such a thing. Along comes the Mishnah and says no: we go only by the half that is in dispute, and there they divide. But that’s a weaker claim, no? Because if the other one also…
[Speaker F] Because why believe the one making the claim… We don’t believe anyone.
[Rabbi Michael Abraham] I don’t believe anyone, Iris. Iris, nobody here is believed. This isn’t a question of belief. The question is what the law says. Nobody is believed. This is not a ruling on the basis of evidence. The religious court does not determine what happened. The religious court tells them what to do.
[Speaker F] The law is clear, but I’m saying this case, this case is not so simple.
[Rabbi Michael Abraham] Meaning that it’s too obvious—you don’t need to say it. No, no, no. There was room to say that it would be half-half even in the second case.
[Speaker F] There wasn’t room. Why not? Because you can’t, because when someone says he’s entitled to half, you are basically giving him credibility over the whole hundred percent.
[Rabbi Michael Abraham] No, giving him credibility over half. No. I give him credibility only over the half that he claims.
[Speaker G] But what do you think, in plain common sense? Why not? I’m saying it like this: half-half.
[Rabbi Michael Abraham] Wait, are you claiming that there’s no possession status here at all? We’ll get to that in a moment. But suppose there is possession status here. Then if both parties are fully in possession of the whole cloak, then in principle if they both claimed “all of it” and “all of it,” it would be half-half, right? Now one of them says, “Half is mine.” So it could still be that he gets half, because about that half he really claims that it’s his. So what’s the problem? After all, from the standpoint of possession status he is entitled to half, and the possession over that half is also accompanied by a claim, because he claims that half is his. Why shouldn’t he get half? There was room to say such a thing. The Mishnah is not redundant. Fine, but it’s not important for our purposes here. I’m just saying it’s not trivial. One could have said it.
[Speaker G] I think that among normal people, just two people who found the same thing—found it in the street, found the cloak or a book, it doesn’t matter, any other thing—then the reasonable compromise is, let’s split it half-half. That’s sort of what each one… Now, it could be that I come and I find it together with my friend, and we’re both holding it. In my innocence I think: fine, I’ll tell her, it’s half mine, I want my half. And she’ll say: no, it’s all mine.
[Rabbi Michael Abraham] Now the natural thing exactly would be—if there are witnesses to what happened there, then everything is fine, but we don’t know what happened. There are no witnesses. So then what happened? Who knows what happened?
[Speaker H] You’re saying, Yael, that the one who says half is the truthful one? They found it at the same time, and you pounced, and she claims you pounced, and I pounced.
[Rabbi Michael Abraham] No, she claims that she came together with her—half is hers.
[Speaker H] Ah, came together. Yes, that’s all.
[Rabbi Michael Abraham] So, Yael, what’s the problem then? What do you want the religious court to do? What do you want the religious court to do?
[Speaker G] No, I think there was room to say that this case is more normative, I would say.
[Rabbi Michael Abraham] What do you mean more normative? A case came before a religious court. Normative, not normative—this is the case that came. What should the religious court do?
[Speaker G] If I were composing a Mishnah, I would have ruled half-half even for the one who says…
[Rabbi Michael Abraham] Okay, so now you’ve answered Iris why the Mishnah is not trivial.
[Speaker G] And what if he’s a liar? Fine. And the second one is a liar? Fine. That’s why you can’t relate to someone who wants only half… Let’s sum up for a moment… “It’s all mine”—he’s a liar and still gets three…
[Rabbi Michael Abraham] Let’s just sum up one thing for a moment, Yael.
[Speaker G] No, maybe he’s a liar. Just as it could be that the one who says only half is a liar.
[Rabbi Michael Abraham] Yael, let’s agree on one thing. At least Yael’s reasoning is enough to explain why the Mishnah needs to say what it says. Okay? That’s all. Now let’s leave the… okay.
[Speaker E] The one who said, “Half is mine,” has a migo. He could say…
[Rabbi Michael Abraham] That’s now exactly what Tosafot asks.
[Speaker E] The one who said, “It’s all mine,” has no migo.
[Rabbi Michael Abraham] Right, right, that’s what Tosafot asks.
[Speaker E] So they say he too has no migo. No, that’s the answer. According to the claim…
[Rabbi Michael Abraham] No, no, that’s what Tosafot is asking now: why shouldn’t that one who says, “Half is mine,” be believed to get half by migo? And to swear, of course, but we’re not getting into the oath right now.
[Speaker F] She’s saying that the one who says, “It’s all mine,” is in a certain weaker position because he doesn’t have the possibility of migo at all.
[Speaker I] Why should he get three quarters if he doesn’t have that possibility?
[Rabbi Michael Abraham] The other one also has the possibility, so to speak, of saying… it’s the same thing. Tosafot asks why he should get three quarters—let it be half-half. Since the one who says, “Half is mine,” has a migo, because he could have said, “It’s all mine.” That doesn’t mean we give him everything. This migo says that we should accept what he is asking for, the half. And then the second one would get not three quarters but also half. That’s exactly the question. Since the one who says, “Half is mine,” has a migo and the other one doesn’t. Okay? So Tosafot says: no, this is migo in order to extract. What does it mean that this is migo in order to extract? Basically the claim is that when… the half that you receive is your half. In the second half I get a quarter and you get a quarter. So Tosafot asks: why should you get a quarter, and I should get the whole half? Meaning, regarding that quarter, the claim is that you are in possession. Right? Not about the half that you received—the half that you received isn’t the point. We’re talking about the half that is disputed. Regarding the half that is disputed, how does Tosafot define the relation between the two parties? He argues that the one who says, “It’s all mine,” is in possession also of the second half. Yes. Now of course, also the one who says, “Half is mine,” is in possession of that half, yes? He doesn’t mean to say that only that one is in possession. Meaning, what is happening here is that we really have a situation where both are in possession. Right? Both… both are in possession of the half. His half has gone to him. What remains is a dispute over this half, where each one wants all of it, the entire half. Now regarding that half, both are fully in possession. Yes. Tosafot says, therefore the fact that I have a migo will not help me win. Why? Because it’s migo in order to extract. Now what does migo in order to extract mean? After all, you are in possession, but so am I. After all, both of us are in possession. Usually migo in order to extract is when there is a clear possessor, and I bring against him proof from migo. They tell me: proof from migo does not help to extract from someone in possession. But migo to retain possession does help. If I am in possession, the migo helps. Now here it’s both extraction and retention. Because you are in possession, that’s true, but so am I. Alternatively, maybe neither of us is in possession. Because in a place where the possession is shared, they cancel each other out, so no one has an advantage. You can say that too. Tosafot chooses not to say that, right? Tosafot basically says that both are in possession of this half. Okay? There was always…
[Speaker J] Can you say that each of them has half of one hundred percent? No. Not say fifty percent?
[Rabbi Michael Abraham] No, each of them has one hundred percent of the fifty percent.
[Speaker J] Ah, right exactly, both of them—
[Rabbi Michael Abraham] —have one hundred percent of the fifty percent that is in dispute. Ah, ah. There is possession…
[Speaker G] I actually think something entirely different—that Tosafot is being forced here to say that there is no migo, or to bring Rivam to say that there is no migo in order to extract, because what can you do, according to logic there should have been a migo. Okay. But the Mishnah says that it rules half-half. Right, okay. And therefore he is pushed to bring the argument…
[Rabbi Michael Abraham] Okay, but that’s what he says. Now the question is…
[Speaker G] In the very end, before we get to all this long Tosafot, I for example didn’t manage to reach the conclusion that…
[Rabbi Michael Abraham] No, no, I told you, look only at the beginning of Tosafot, just the difficulty. You don’t need to get to the end of Tosafot.
[Speaker G] The beginning of Tosafot, just the—
[Rabbi Michael Abraham] —difficulty they raise with migo in order to extract.
[Speaker G] Rivam’s conclusion does say…
[Rabbi Michael Abraham] Right, so I’ll speak about Rivam.
[Speaker G] But this whole Tosafot doesn’t say that.
[Rabbi Michael Abraham] The continuation of Tosafot is problematic; let’s leave it for now. Rivam’s approach is that we do not say migo in order to extract, and he learns it from the topic here. And you need to understand that this is a problematic source from which to derive that principle.
[Speaker G] Is this the only place this Rivam appears? Meaning, we don’t have Rivam elsewhere saying…
[Rabbi Michael Abraham] There are medieval authorities (Rishonim), not necessarily Rivam, in parallel topics, but here this is perhaps the main source, or one of the main ones, for this matter. Again, in the Talmud itself it doesn’t appear.
[Speaker G] Here the whole issue is renewed…
[Speaker C] If he said it about this case… yes. And then if he said it—
[Rabbi Michael Abraham] —about this case, then of course it will be difficult for him to say it elsewhere.
[Speaker C] Of course, I’m just saying, here the whole business is not… migo in order to extract is an enormous novelty. Yes. What? All the more so here if…
[Rabbi Michael Abraham] All the more so—or maybe this answer really isn’t correct, and there are other reasons why the migo doesn’t help. In a moment we’ll see, in Nimukei Yosef, in Nachmanides. Fine, we’ll see. But this is very problematic—the definition here of this migo as migo in order to extract is very problematic. You’re right that if I accept that this is a problematic definition, then the question returns: so why shouldn’t the migo help here? After all, this is not migo in order to extract. And then you need other answers. And once I have other answers, then you can’t derive from here that we do not say migo in order to extract, because there is another reason why the migo doesn’t help here. Okay? So again, Rivam assumes that in this situation both of us are in possession, and not that neither of us is in possession. Right? That’s the first assumption he has to accept. The second assumption he has to accept is that in a situation where both of us are in possession, if one side has a migo, it will still be considered migo in order to extract. The third assumption of Rivam is that we do not say migo in order to extract. Three assumptions. What’s the second assumption? The first assumption is that both are in possession. The second assumption is that when both are in possession, when I invoke migo it will be considered migo in order to extract. Because there was room to say that if both are in possession, this is not migo in order to extract—it is also migo to retain possession. Ah, right. And the third assumption is that we do not say migo in order to extract. Or a conclusion if you want, it doesn’t matter. Rivam’s third claim is that we do not say migo in order to extract. Rivam has three claims. Really, behind what he says there are three assumptions. Okay? None of them is agreed upon. None of them. The question is—every… none of them is agreed upon by the other medieval authorities (Rishonim). But the important question for our purposes is: those medieval authorities (Rishonim) who disagree with Rivam, which of the three assumptions do they disagree with? Right. Because if they disagree with one of the first two assumptions, then you can’t conclude that they disagree with the third—that migo in order to extract does work. They may also hold that we do not say migo in order to extract, but they say this isn’t called extraction. Or else they disagree with Rivam’s third assumption, and hold that we do say migo in order to extract, and then you need to invent another answer. Do you understand? Meaning, it’s very important to understand that with Rivam there are several assumptions here; it’s not only the claim that we do not say migo in order to extract.
[Speaker F] These aren’t separate claims and assumptions; one leads to the next.
[Rabbi Michael Abraham] It doesn’t lead to the next; rather, you need all three in order to say what Rivam says. The third… But they aren’t dependent on each other. No, that’s not right.
[Speaker F] If he says that migo in order to extract…
[Rabbi Michael Abraham] Ah, then he can say that truly we do not say migo in order to extract, but here this isn’t called migo in order to extract—what do you want? On the contrary, these are independent assumptions—that’s exactly my point. And since they are independent assumptions, it is entirely possible that a medieval authority (Rishon) will come and disagree with assumption A or assumption B, but accept assumption C, that we do not say migo in order to extract. In relation to what am I saying this? In relation to Nimukei Yosef. Because I asked you on the page whether Nimukei Yosef necessarily disagrees with Rivam and holds that we do say migo in order to extract. It’s really not necessary at all. And let’s look. Nimukei Yosef says as follows. He asks the same question, okay? He says: “And we do not say that he should take half with an oath, by migo, since if he wanted he could have said, ‘It’s all mine.'” Right? That’s Tosafot’s difficulty. Why shouldn’t we say that he should take half by migo? Why? “And he would have taken half with an oath. Because we do not say migo except where the claims are equally balanced.” What does “equally balanced claims” mean? Not that the two sides are equal, but that the claim and the alternative claim of the migo—the two claims are equally balanced claims. Exactly. But here, the claims are not equally balanced. Why not? It is easier for him to say, “Half is mine,” because he is not quite as brazen before his fellow, than to say, “It’s all mine,” where he would have to be completely brazen. This is a kind of migo of brazenness. Because if he says to him, listen, you’re just a liar, you didn’t grab it at all, I grabbed it by myself, what are you even doing here? I don’t know you. If he is lying—because the whole idea of migo is that if I had wanted to lie, I would have said, “It’s all mine.” It’s not so simple. If you had wanted to lie, you would have said that the other guy is a liar to the…