Ketubot, Chapter 2, Lesson 4

[Rabbi Michael Abraham] I want to continue by first finishing the previous lecture on migo used to extract, and then finally start our topic. After we talked about the different mechanisms of migo — why would I lie, the force of a claim, credibility, Maimonides with bringing the goat into the religious court in order to let people tell the truth — I moved on to migo used to extract. There we saw a dispute among the medieval authorities (Rishonim) around the Talmudic text in Bava Metzia: do we say migo in order to extract from someone in possession? That’s the view of Nachmanides, Rashba, and those in their camp, as opposed to the view of Tosafot, who say that we do not say migo used to extract. About Nimukei Yosef I said that you can interpret it this way or that way, but for our purposes that’s less important. The main point is that there is a dispute among the medieval authorities (Rishonim). The question I dealt with rather quickly at the end was: why doesn’t migo extract? According to Tosafot, why doesn’t migo extract? And after that I moved to the question of where migo is used at all. Because if migo does not help to extract, then migo is basically always going to serve the one in possession. But if you’re the one in possession, why do you need migo? You win because you’re in possession. So it comes out that apparently migo has no role at all. Those were the two questions. Each of those questions has to be answered separately according to Tosafot and separately according to Nachmanides. It could be we didn’t answer them. So I’ll talk about that now. So regarding the question of why migo doesn’t help to extract, I said: first of all, why should it help to extract? The point is that once there is a dispute between a claimant and someone in possession, and the one in possession wins, we said that he wins not because there is evidence that he is right. There is nothing positively in his favor. Rather, once the religious court takes no action, the situation remains as it is. And if the item is with the one in possession, it will simply remain with the one in possession. That is a default rule. It’s not that possession is evidence in his favor. But if we really understand the situation as equilibrium, meaning there is a default, then once there is a migo in favor of the claimant — a migo that comes to extract — why shouldn’t that decide the matter? After all, we follow the one in possession only because the situation is evenly balanced, so we leave the situation as it is. But if the claimant has a migo in his favor, then the migo should have tipped the scales, and then we wouldn’t need to resort to possession. It’s not that the picture is that migo overcomes possession. The question is whether it manages to overcome possession or not. But that apparently shouldn’t be the picture at all. Possession only enters the game after we’ve finished the whole story of the evidence. If we remain evenly balanced from an evidentiary standpoint, then the one in possession wins. It’s not that possession itself also plays on the evidentiary field. So once, in the evidentiary discussion, the claimant brings a migo in his favor, then his position is better than that of the one in possession, so we don’t need to resort to possession. Not that migo overrides possession — possession doesn’t come up at all, because there’s no need for it. Possession comes up only when we have no other tool to decide the matter. And therefore apparently any evidence of any kind should have helped to extract from someone in possession. Now, according to Nachmanides there is no problem — that really is what it does. But according to Tosafot, who say that migo does not help to extract, the question is why. So here I said that on the face of it, strange as it is, it seems that possession does have evidentiary weight according to Tosafot. Not only is possession a default rule — that if both sides are equal, we leave the situation as it is — but it has some evidentiary weight. In order to extract from someone in possession, it is not enough to have any tiny factor so long as it tips the scale. No. There has to be significant weight on the claimant’s side of the scale to overcome possession. Or in other words, possession does also play on the evidentiary field, not just on the question of what we do when there is no evidence. Why?

[Speaker B] Is that what we said? Didn’t we say that migo is not evidence?

[Rabbi Michael Abraham] Wait, I said several—

[Speaker B] possibilities.

[Rabbi Michael Abraham] On the face of it, if migo does not help to extract, then apparently possession is not just a default rule, but apparently it has some evidentiary weight. And therefore you need a certain minimal level of proof in order to extract from the one in possession. Right? That’s what comes out before I explain further. Because otherwise, if it were only a default rule, then any level of proof should have sufficed. Now in fact the common explanation among the later authorities (Acharonim) is that migo does not help to extract because it is not strong evidence — it is weak evidence. For some reason, whatever it may be, it is weak evidence. That explanation assumes what I said earlier. Because if possession were only a default rule, then it doesn’t help to say that migo is weak evidence. Even if it’s weak evidence, it still tips the scale in favor of the claimant, and then there is no need to resort to possession. In other words, the whole explanation that the later authorities (Acharonim) bring — that migo is weak evidence and therefore does not help — actually implicitly assumes what I said earlier, that possession has some evidentiary weight, and therefore there is some kind of threshold, some kind of bar, from which onward you can extract from someone in possession, but not every proof can extract from someone in possession, and migo does not pass that threshold; migo is weak evidence. That’s the standard explanation. But as I said, that is puzzling. First, why is migo weak evidence? What is wrong with this proof? It’s a good proof — why is it weak? Second, why should we really say that possession has evidentiary weight? Where does that come from? After all, possession, as I explained in the first lecture, is a default rule. There is no indication that the claimant is more likely to be lying than the one in possession. Why? Both of them have a presumption of reliability; I have no idea which one of them is lying. The fact that I’m holding the item doesn’t mean that he is more likely to be a liar than I am. Therefore this explanation — which is the common explanation, the way people usually say it — seems difficult to me for those two reasons: both because I don’t understand why migo is weak evidence, and because I don’t understand why weak evidence would not suffice to extract, since possession is a default rule. Wait, no — they assumed that migo is evidence, just weak evidence. I said I don’t understand: if it is evidence, why is it weak evidence?

[Speaker B] And second, according to Tosafot’s view—

[Speaker C] According to—

[Rabbi Michael Abraham] According to Tosafot, who say that we do not say migo used to extract, the question is: why not? Why doesn’t migo extract? So I said the first explanation is that it is weak evidence. That explanation basically assumes that possession has evidentiary weight, and therefore you need a certain strength of proof to deal with possession. Because if possession were as I presented it, only a default rule, then any proof at any strength could extract. You wouldn’t need any minimum strength to overcome possession. So I said: that’s the common explanation, that migo is weak evidence and therefore does not extract, but it is difficult in two ways. First, I don’t understand: if we already regard migo as evidence, why is it weak evidence? What’s weak about it? It’s evidence like anything else. But it’s not two witnesses. What? A presumption also is not two witnesses, and a presumption does extract money.

[Speaker C] A presumption, like “a person does not—”

[Rabbi Michael Abraham] The presumption that a person does not repay within the term extracts money from someone in possession. Fine? So the question is why migo as evidence is weaker than what is considered, say, a presumption, which is for example a consideration saying that it is likely that the person is telling the truth. What’s the problem? What’s wrong with this proof? Second, why are you assuming that possession is not a default rule? What evidentiary weight does it have? It really doesn’t have evidentiary weight. So both sides of this answer seem problematic to me. Therefore I raised another possibility: according to what we have seen so far, it may be that migo is not evidence at all. For many reasons. First, all these calculations — if I know there is migo, then I’ll say that in order to benefit from the migo, and then the whole consideration collapses that if I wanted to lie I would have made the alternative claim. Second, the other element is that a litigant’s evidence is of no use. Migo is usually raised by the litigant himself. Now a litigant doesn’t help here with proofs. So the proofs will show that he is telling the truth — so what? He is a litigant. A litigant’s words are not accepted even if he is telling the truth. So therefore the evidentiary dimension of migo is highly doubtful — maybe it doesn’t exist at all. I said that, absurdly enough, we start from the assumption that migo is evidence, then the later authorities (Acharonim) say there is another dimension in migo — a formal dimension, force of a claim, force of credibility, and so on — and in the end we arrive at the conclusion that there is no evidence at all, there is only that. And then I said: so what is the “why would I lie” that appears in the Talmudic text? So I said that it can be understood that the purpose of “why would I lie” is to turn an implausible claim into a plausible claim. And now you will win as the one in possession because alongside your possession you also have a plausible claim. We’re talking about Tosafot’s view, according to which migo helps only the one in possession, okay? So therefore even when the Talmudic text says “why would I lie,” it does not mean evidence. Rather, “why would I lie” is a kind of consideration that takes the possessor’s claim out of the category of an implausible claim — in which case he would not have been able to win even though he is in possession — and turns it into a plausible claim, and now he wins because of possession. But then it really turns out that both dimensions of migo are non-evidentiary. Migo as force of a claim turns me into the one in possession, and migo as “why would I lie” turns my claim into a plausible claim. Now that I am in possession and I also have a plausible claim, now I can win. Not because migo is evidence in my favor, okay? Now, if that is really so, then migo has no evidentiary dimension at all, and therefore Tosafot say that we do not say migo used to extract. Why? Because where can migo work? Migo can work where my possession is shaky according to Tosafot. My possession is shaky, either because the possession itself is weak, or because, say, the two of us are both holding the cloak, or because the claim accompanying the possession is implausible. In both of those dimensions migo can help. It can turn my weak possession into good possession because I have a migo, the possibility to win; it can turn my claim into a good claim because of “why would I lie.” But where there is someone in possession with a plausible claim standing against me, and I have a migo against him, migo cannot turn me into the possessor in his place. Migo can allow the person holding the money to count as the one in possession despite flaws in his possession. It cannot reverse possession. You are in possession of the money, you are in possession, your claim is a plausible claim, no problem. Now I come with a migo — what does the migo help here? My claim is plausible and your claim is also plausible, and you are in possession. So what can migo do here? Clear?

[Speaker D] So in the end it’s some kind of larger total on the side of the considerations, and possession—

[Rabbi Michael Abraham] Possession adds another amount. No, the opposite. I want to assume that we do the evidentiary calculation, and then we see who has more evidence. If one side is stronger, it wins automatically. If neither side is stronger, then the one who wins is the one in possession. The one in possession does not play in the first stage; he enters in the second stage. That’s what I want to gain, in contrast to the first direction I said, where possession plays on the evidentiary field. So how does migo work? Migo can only either turn flawed possession into good possession, or turn an implausible claim into a plausible claim. And in order to win, I need to be in possession and also to have a plausible claim, because if I don’t have a plausible claim, even my possession will not help. Okay? So that is basically what migo can do. Therefore migo used to extract cannot help by definition according to Tosafot, because migo used to extract means that opposite me stands a justified possessor — his possession is solid and his claim is plausible — but I have evidence against him; I brought a migo. So what? Migo has no evidentiary dimension. I’m a litigant; proofs like that do not help, right? So why in the world should migo extract? That may be Tosafot’s conception. That is one possible explanation. And then I also said, regarding the presumption that a person does not repay within the term, that even that presumption does not extract from someone in possession. Only witnesses extract from someone in possession. What that presumption helps with is that it turns my claim into an implausible one, so I am no longer effectively in possession. In other words, all along I am going with the direction that extracting money is done only with witnesses. All the other things are not functioning as evidence; they function either to undermine claims, or to turn me into the one in possession, or to strengthen my possession, or things of that kind. Are witnesses always human beings — meaning two witnesses? Or can witnesses also be documents or cameras? In the simple sense, it’s two witnesses. The status of cameras today is discussed by halakhic decisors — whether it can be regarded as witnesses. A document is like two witnesses because two witnesses signed it, although even handwriting itself basically has the status of two witnesses on a Torah level. But yes, a document has the law of two witnesses by virtue of the law of documents. Beyond that, all other things are not regarded that way in principle. Today, in places where there is very, very strong evidence, there are halakhic decisors who want to argue that maybe this too should have the status of witnesses. A camera, or even genetic testing — there are those who want to argue that it should count like witnesses, although it’s not so simple. Genetic tests can also be forged. No, apart from the question whether it can be forged — let’s say even if the proof is one hundred percent, apart from that. Still, if it isn’t witnesses, from the standpoint of Jewish law it is not admissible.

[Speaker D] Formally, you can’t accept it, because the Torah said two witnesses.

[Rabbi Michael Abraham] Right. In principle, circumstantial evidence — and by the way, circumstantial evidence is not a synonym for weak evidence. Circumstantial evidence can be one-hundred-percent proof. The point is, it’s circumstantial because it works through the circumstances; we didn’t see the case itself. But the circumstances show that this is how it was. The Talmudic text brings a case of someone chasing another person with a knife, they go into a ruin, he comes out with the knife dripping blood, and the other man is inside dead, and there is no one else around and no window and nothing. That is one-hundred-percent circumstantial evidence, okay? But it’s circumstantial. In the laws of murder, for example, according to Maimonides it won’t help; Tosafot—

[Speaker B] Maybe yes.

[Rabbi Michael Abraham] DNA also is not witnesses. The fact that it is one hundred percent does not matter because it is circumstantial. Okay? That’s what I’m saying. There are halakhic decisors who want to argue that proofs that are one hundred percent also have the law of witnesses, even though they are circumstantial. That already starts with the dispute between Tosafot and Maimonides, never mind, but there are discussions about that. In principle, under the strict law, only witnesses.

[Speaker E] Okay? They also lean very heavily on DNA in clarifying Jewish status.

[Rabbi Michael Abraham] In clarifying Jewish status, the question whether you really need witnesses is not simple, because that is in the area of prohibitions, so there is room to hesitate. The line I am taking is that possession does not play on the evidentiary field at all on the one hand, and on the other hand what extracts from someone in possession is only witnesses. Under those two assumptions all of my explanations fit. Then all I have to explain is that migo is not evidence on the one hand, but if there is no possessor against it, then there is no problem; but if there is a possessor against it, it will not succeed in extracting. Therefore all migo can do is determine who is in possession and whose claim is good. That’s all. It is not evidence functioning here against the possessor; it does not extract from someone in possession. Only witnesses can extract from someone in possession. It can determine who the possessor is, or determine that the possessor has a good claim and therefore can win with his possession. Okay? And the same thing with presumption. The presumption that a person does not repay within the term — what I wanted to argue is that it is not a presumption that extracts money from someone in possession. Rather, it says that my claim that I repaid within the term is implausible. Therefore, even though I’m in possession, because the claim accompanying that possession is implausible, I will not win. Because in order to win through possession, you need a plausible claim. All along, that’s the direction I want: possession is only a default, and extracting money from someone in possession is only through two witnesses. And then all the other maneuvers— So what does migo do after all? That is one explanation. A second explanation — actually a third, if you like. The first explanation is that it is weak evidence, and I said that is a difficult explanation. The second explanation is what I just said, that migo is not evidence at all. The third explanation, which perhaps joins the second, is that migo is evidence, but it is evidence of a different kind. It is evidence about the person himself and not evidence about the matter itself. We talked about this. It basically proves that I am not lying, but it does not prove what happened. For example, if I am imagining things, migo will not help, right? Because migo proves that I’m not lying. But if no one suspects me of lying, what does migo help? Or migo with relatives, and so on. Since that is so, migo cannot extract. Because migo functions as evidence that the claimant is not lying. But the fact that the claimant is not lying — I wasn’t saying from the outset that he was lying. A mere claim cannot extract from someone in possession. The other one is in possession. You want to extract from him; to extract from someone in possession you need evidence. Migo turns you into someone who is not lying, and therefore your claim is a good claim. Okay? So what? Even with a good claim, you don’t extract from someone in possession. Okay? That is really a sub-branch of the previous direction. But here I’m saying: I’m willing to accept that migo is evidence, but it is evidence about the person himself and not about the matter itself. Clear? That depends on the explanations. If I say that migo is not evidence because it saws off the branch it sits on — because I know I’ll be believed through migo and therefore I choose the weaker claim — then that means that migo is not evidence at all. That is the previous explanation. If I say migo is evidence, but it is evidence about the person himself and not about the matter itself — it proves that I am not lying, not that reality was in fact that way — then you need the third explanation. Okay? That is really the more correct way to present it. Okay, so there are three explanations in the direction of how to explain Tosafot’s statement that we do not say migo used to extract. The second question — I want to continue still with Tosafot’s view — the second question is: so why do we need migo at all? Where does migo function according to Tosafot? So we said: to extract, migo doesn’t help. To maintain possession, I’m in possession even without migo. So I’ll win even without it. So I said, what I said before — that’s why I tied these two questions together; I’m answering them together. Migo serves only the one in possession, right? Or someone who will become the one in possession because of the migo. Therefore it will never extract. How can that happen? In a place where your possession is shaky and then you have a migo, it could be that you become the one in possession through the migo. Or you have— for example, two people holding a cloak. Or you have good possession but an implausible claim: “I repaid within the term.” Then migo can say: okay, but still the claim can be relied on as a good claim, and then I will win by force of possession. Those are two situations in which migo can work. By the way, these are the two components of migo. In the first situation, what will work is the force-of-claim aspect of migo, because I have weak possession and the migo, as force of a claim, turns me into a solid possessor. Right? In the second situation, where I have good possession but an implausible claim, migo turns the claim into a plausible one — that is the “why would I lie” dimension of migo. Okay? What is an example of an implausible claim?

[Speaker D] “I repaid within the term.”

[Rabbi Michael Abraham] “I repaid within the term.” So I’m completely in possession, the money is with me, no problem. But my claim is implausible. So if I have a migo — that I could have said “I repaid after the term” — then the claim becomes plausible, and I will win because I am in possession. That is the “why would I lie” dimension of migo, because it turns an implausible claim into a plausible claim. The force-of-claim dimension is where my possession is problematic. Like, for example, in the case of two people holding a cloak, because really both of us are in possession. If I have a migo, then the force of the claim can turn me into the real possessor. Okay? Half of it, with a migo that I could have said “all of it is mine,” or something like that.

[Speaker B] And also just possession alone if someone claims—

[Rabbi Michael Abraham] Could be. In every place you have to discuss the case on its own terms, but I’m saying it’s one of those two possibilities. Therefore, if someone comes to extract against a solid possessor — someone in possession with a good claim and with unimpaired possession — it won’t help to bring a migo used to extract against him. Clear? That’s—

[Speaker D] Wait. But in the first case of force of a claim, where the migo is added to shaky possession—

[Rabbi Michael Abraham] The possession is shaky, and the migo turns it into—

[Speaker D] Yes, where we use the force of a claim, according to Tosafot’s approach. If we— meaning, if the migo adds to possession, then I have two people each holding a bit, and one of them has a migo.

[Rabbi Michael Abraham] The one over his half has a migo, because he says he could have said “all of it is mine.” So that migo turns him into the possessor even though the other one is holding it with him.

[Speaker D] So why doesn’t that actually work in the end there?

[Rabbi Michael Abraham] No, there we asked why that migo doesn’t help, and we saw various answers: the migo of the goat, a migo that gives him the proportion of credibility like in the alternative claim, various—

[Speaker D] Other approaches, but according to Tosafot—

[Rabbi Michael Abraham] Tosafot say that migo doesn’t— there it is migo used to extract.

[Speaker D] Two possessors, so each one— everyone wants to extract. No, both are in possession, but now the migo adds to one of those possessors, gives him additional force of claim.

[Rabbi Michael Abraham] Fine, and Tosafot still say: but the other one is also in possession, and you can’t extract from someone in possession through migo.

[Speaker D] But now there’s a greater possessor and a lesser possessor, because the greater possessor—

[Rabbi Michael Abraham] What does that mean, greater possessor? There is no greater and lesser possessor. Once the other one is also in possession and his possession has not fallen—

[Speaker D] The migo— we said that migo does add—

[Rabbi Michael Abraham] No, it cannot extract from a solid possessor.

[Speaker D] Not extract — it can add to the one where both are in possession… okay, both are in possession.

[Rabbi Michael Abraham] Both are in possession, so how will you now extract from me?

[Speaker D] But one of them has a migo, so his possession suddenly gets a plus.

[Rabbi Michael Abraham] No, not a plus. At most it turns into good possession, and mine is also good possession.

[Speaker D] Why? It doesn’t turn the other one into good possession. We said that in the case of two people holding, it’s like two people with not-good possession.

[Rabbi Michael Abraham] That is Tosafot’s initial assumption. That’s why Tosafot ask that migo should help, right? Tosafot answer: no, this too is called migo used to extract. We said there are other medieval authorities (Rishonim) who do not accept that. This too is called migo used to extract. Basically it depends — there are later authorities (Acharonim) who formulated it this way. The question is why we do not say migo used to extract. Is it because migo cannot deal with someone in possession? Or because migo can help only someone who is himself in possession? Those are two different formulations. Where will the difference be? In a place where both are in possession. If the problem is that migo cannot extract from someone who is in possession, the other one standing opposite me is in possession — why do I care that I too am in possession? But if migo helps only someone who is himself in possession, here I myself am in possession — why do I care that the other one is also in possession? And those are the two possibilities in Tosafot — the initial assumption and the answer. Tosafot’s initial assumption and Tosafot’s answer. Clear? So… in short, those are the two elements of migo, and both can come into play when they strengthen the status of the one in possession — either they strengthen his possession or they strengthen his claim. Okay?

[Speaker C] So do you have an example of shaky possession where migo as force of a claim extracts, other than two people holding? Because that’s not an example, according to— there it doesn’t extract. Because there it doesn’t extract. Right, you can’t extract. So when do we say — what kind of possession—

[Rabbi Michael Abraham] In all the monetary cases, for example—we didn’t go into them—that the medieval authorities (Rishonim) bring up: the medieval authorities (Rishonim) on page 3 in Bava Metzia ask why they say there—page 5, sorry—that the Talmud / Talmudic text there says… the Talmud / Talmudic text there says that a bold migo does not help exempt someone from an oath, right? So the later authorities (Acharonim) ask there: but in monetary law we see that it does help. Rabbi Shimon Shkop, Ketzot HaChoshen—that in monetary law it does help. In all these places where in monetary law it does help, how do they explain it? That a bold migo only has the force of an argument, right? And not a “why would I lie” presumption. And there, in those monetary cases, it works. For example, with goats, where there isn’t… they’re sitting in my courtyard, but they wander around, so they’re not really in serious possession. But still, the fact that I could have said that I bought the goats, that they’re mine—that turns me into the one in possession of the goats. “Those goats that ate peeled barley,” right? That was… okay. So that’s the two-part answer to the two questions according to the view of Tosafot, right? The two questions meaning: why don’t we say migo in order to extract money, and second, then where do we use migo if we don’t say migo in order to extract? According to Nachmanides, apparently there’s no question at all. Because we do say migo in order to extract, so there’s no problem. Migo is evidence, and it really does help extract, and everything is fine. The first question never arises. And automatically the second question doesn’t arise either. Because the second question—why use migo? No problem: when you come to extract. When you come to maintain possession, you can prevail even without migo, right. But when you come to extract, how will you extract? So the migo helps the one extracting. But of course even according to Nachmanides there are many, many cases in which the migo serves the one already in possession, not the one extracting. Nachmanides claims that migo also helps to extract, but clearly there are cases—and maybe most cases—in which the migo serves the one in possession. So therefore, for Nachmanides too, all the explanations I said in Tosafot are also correct. Yes. Meaning, according to Nachmanides too, the migo can help the one in possession in the two ways I spoke about earlier. It’s just that Nachmanides, in addition to that, sees migo also as actual evidence. Even though it concerns the person himself, and therefore Nachmanides says it can also help to extract, since possession is only a default, and if I have evidence in favor of the claimant, even if it concerns the person himself, it tips the scales, so I don’t need possession. Meaning, Nachmanides basically—the point on which he disagrees with Tosafot—he accepts everything I said until now in Tosafot. The two dimensions of migo. How migo works to save the one in possession, or strengthen his possession, or improve his argument. Where does he disagree with Tosafot? That migo has one more dimension. Migo also constitutes actual evidence. Not just reinforcement for the argument and reinforcement for possession. It is actual evidence. And then what? Then even if he comes to extract—so what if I’m in possession? If the other one has a migo, then his hand is stronger, the weight is not balanced. So possession is irrelevant.

[Speaker B] Still, Nachmanides didn’t say that in every case migo can extract. He gave the example of “two holding” where it didn’t help there.

[Rabbi Michael Abraham] No, it didn’t help because the migo isn’t good. Like Nimukei Yosef. Unrelated. But if it had been a good migo, it would have helped. That’s exactly the point. Nachmanides claims that migo in order to extract does work. So she asks: wait, then why doesn’t it extract here? I told her: no, because here it’s simply a bad migo, that’s all. So that’s the view of Nachmanides.

[Speaker D] On the methodological point too, both of Tosafot and of Nachmanides—I already asked you before, but it’s still hard for me with this—they don’t bring proof for their position. It’s all just from their reasoning, just from their logic. Why does that work? Why are they allowed to do that?

[Rabbi Michael Abraham] What’s wrong with logic? I don’t understand. What’s wrong with logic? We’re also supposed to use our logic and have it work. What do you mean?

[Speaker D] But they won’t teach us in yeshivas.

[Rabbi Michael Abraham] Why won’t they? When you write a book, they will. Why wouldn’t they? There has to be some kind of authority for them to teach you in a yeshiva. Migdal Oz—I once heard that he was a woman. Nobody actually knows his name anyway.

[Speaker D] What a thing.

[Rabbi Michael Abraham] So about that there are rumors, and I don’t know what they’re based on.

[Speaker D] Is that why the seminary is called Migdal Oz? He was called Migdal Oz—what’s the connection?

[Rabbi Michael Abraham] It’s just a rumor, I don’t know who else heard it. I once heard it somewhere. Write an anonymous book.

[Speaker D] The methodological issue of… if I can understand that someone brings a proof from some… I don’t know what. But here in the end they prove their own proof out of themselves.

[Rabbi Michael Abraham] Not out of themselves. There is logic, and you apply your logic. Good Lord, what’s the problem? We constantly work with our heads. What else do we have besides that? You know, Rabbi Shimon Shkop asks at the beginning of Shaarei Yosher—there in Shaarei Yosher he brings several things that show, several proofs, that the laws of acquisitions are not the result of Jewish law. They preceded Jewish law. How one acquires objects. It’s simply logical. Right? Then he asks: perhaps you’ll say, okay, then why do I have to obey that—if the Torah doesn’t command it, then why does it obligate me? Why do I have to obey it? And like a good Jew he answers a question with a question and says: and why do you have to obey what the Torah does command? There is logic that says that what the Torah commands one should do, right? So logic says that too.

[Speaker B] Because there is faith / belief.

[Rabbi Michael Abraham] That the Holy One, blessed be He, created a world and gave the Torah. That’s a migo, by the way. “The mouth that forbade is the mouth that permitted.” Meaning, if logic is the basis for obeying what the Torah commands, then you can’t say that if the Torah doesn’t command, I won’t use logic. Logic is what gave the Torah its authority. That really is “the mouth that forbade.”

[Speaker D] But there you have an axiom. First of all you have an initial axiom that there is a Holy One, blessed be He, who created a world and gave the Torah. That’s the axiom. Once you have that, then He created a world and gave me Torah, so I’m obligated because that’s what logic says. But were it not for that first axiom…

[Rabbi Michael Abraham] I assume Nachmanides and Tosafot also agreed to that axiom. That there was a Holy One, blessed be He, who gave the Torah.

[Speaker D] I hope so.

[Rabbi Michael Abraham] Well then, what’s the problem? So they use their logic and interpret what they interpret. What’s hard about that? What’s the problem? We use logic all the time. What, do you want us to work without logic? If the Torah writes something, do you really think we can learn it without logic? There is nothing in the world…

[Speaker E] I think what Yael is saying here is something very deep.

[Speaker D] It’s not just that there’s something outside logic—there’s only logic.

[Speaker E] We’re always used to hearing: what did you innovate? What is it based on? Bring me proofs. Even in academia…

[Rabbi Michael Abraham] Why do I need a verse? It’s logic. What do I care about academia?

[Speaker E] “Why do I need a verse? It’s logic”—the Talmud / Talmudic text says that. But what do you mean? You’re not the Torah.

[Rabbi Michael Abraham] What is logic?

[Speaker E] If I say “logic,” they’ll say to me, okay…

[Rabbi Michael Abraham] Logic is Torah-level. Torah-level, folks. Torah-level. If you have logic, you are obligated to uphold it at the Torah level.

[Speaker E] I’m saying, if it’s accepted in the world.

[Rabbi Michael Abraham] Accepted depends. If you’re persuasive, then it’ll be accepted, and if not, then you have no authority. I don’t have to accept it just because you think so. But if I’m persuaded, then it obligates me too. Of course. “Why do I need a verse? It’s logic”—the Talmud / Talmudic text says it. What do you mean?

[Speaker B] They do it from their gut—they see the cases and then they set up their system.

[Rabbi Michael Abraham] Fine, what does “from their gut” mean? Where does it come from? Their logic says that this is how it should be. So what? You can interpret them in all sorts of ways. Practically speaking, in the end it comes out of them.

[Speaker B] Fine. Okay.

[Speaker D] The point is that the logic…

[Rabbi Michael Abraham] …of theirs stands…

[Speaker D] …the test of time, yours too and of…

[Rabbi Michael Abraham] It’s a bit strange to ask why obey logic, because what kind of explanation can I give? A logical explanation. That’s the primary foundation. If you undermine that, then it’s a waste of time, then there’s no point continuing to talk at all. Okay. There are certain religious conceptions that say that if it’s logical, then no… it’s not ours, right? It’s just some human thing, it can’t be Torah. Okay. Now according to Nachmanides there’s just one remark that has to be made: if indeed Nachmanides added to Tosafot this element, that in migo there is also an evidentiary dimension—”why would I lie”—and therefore it can also extract from one in possession, okay? The question is still how that can be, because it is evidence that proves that the litigant is not lying. But the litigant’s words are not accepted not because of suspicion that he is lying—that’s what I said also in Tosafot. How does Nachmanides answer that? It seems to me there is no choice but to say—and overall I think this is the common view, despite all my novelties—but the common view among both the medieval authorities (Rishonim) and the later authorities (Acharonim) is that migo is indeed evidence. And I said there are various reasons to say it isn’t. So Nachmanides will apparently say that although this is evidence concerning the person himself, in the end it also spills over and proves what happened. Right? I think someone mentioned in one of the earlier lessons “the murdered man came on his own feet.” Right? They accuse Reuven of murdering Shimon. Two witnesses come and say that Reuven murdered Shimon. Now Shimon walks in through the doors into the religious court, okay? In the middle of the hearing. Before the astonished eyes of the judges.

[Speaker F] How do you say it? There’s some legal concept that they brought the person? “The murdered man came on his own feet.” That’s in Jewish law. Straight from the horse’s mouth?

[Rabbi Michael Abraham] I don’t know. In any case, he himself arrived. So what are we going to say to him? He’s a litigant, he isn’t believed. Not believed? Here we see that he wasn’t murdered. Right? The fact that this evidence was created with the gracious help of the litigant—as long as we were convinced, then there is evidence here. Nachmanides will say the same thing. The fact that the litigant’s words created migo evidence here—that’s perfectly fine. We don’t accept it because he said it. We accept it because his words created evidence, and now the evidence proved to us that this was the reality.

[Speaker B] Is that what you wrote in the summary, that it creates the reality?

[Rabbi Michael Abraham] Yes, exactly. Okay? So that completes Nachmanides’ view. One last remark, just to finish this long summary. The remark I ended with concerns admission by a litigant. There it’s an interesting point, and maybe we’ll need it later too, so it’s worth mentioning. Basically, the law of admission by a litigant on its face is a strange law. What is admission by a litigant? Suppose someone claims that I owe him one hundred shekels, and I say to him, right, I owe you. Okay? Then an admission by a litigant is like a hundred witnesses. Meaning, then certainly he’ll be able to extract from me even though I’m the one in possession. Why? Because an admission by a litigant is like a hundred witnesses. It can extract from me. Now what does that mean? After all, I’m not even asking to keep the money, so what does it mean to “extract”? Fine, let him have it—what’s the problem? There are sometimes situations where, say, two witnesses come and say that I repaid. And I myself say that I did not repay. Two witnesses come and say I repaid. So now what? Nothing is stronger than two witnesses, right?

[Speaker B] Maybe you’re dreaming.

[Rabbi Michael Abraham] Okay, so what’s the law? Admission by a litigant is like a hundred witnesses. Admission by a litigant overrides two witnesses. Even though as far as witnesses go, two are like a hundred.

[Speaker B] No, but…

[Rabbi Michael Abraham] The phrase “a hundred witnesses” here is metaphorical; it means it’s stronger than witnesses. That’s what it means. Okay? A hundred witnesses aren’t stronger than two witnesses, but admission by a litigant is stronger than witnesses. That’s what it means. Okay? Even when there are witnesses against him, he is believed. Okay? Now the question is how to understand that. Seemingly…

[Speaker C] But they claim…

[Rabbi Michael Abraham] …that he already repaid.

[Speaker C] He obligates himself. He creates a situation in which he obligates himself.

[Rabbi Michael Abraham] So the judges obligate him. Now he’ll say: I don’t want to pay, I’m relying on the witnesses now. It won’t help. It won’t help; the religious court will obligate him to give it, because admission by a litigant is like a hundred witnesses.

[Speaker D] A self-imposed prohibition?

[Rabbi Michael Abraham] Like that. But that’s in matters of prohibition.

[Speaker D] What are those two witnesses considered—conspiring witnesses? No?

[Rabbi Michael Abraham] No. The assumption isn’t that the witnesses lied, but if you admit, you pay.

[Speaker D] So it doesn’t matter what the truth is; it could be that the truth is with the two witnesses.

[Rabbi Michael Abraham] I’m about to comment on that. In a moment. Seemingly that only means that clearly the witnesses lied and he is right and that’s the truth—but no. That’s not the point. Rather, he… it could be that he made a mistake, but…

[Speaker E] If he admitted, then he pays.

[Rabbi Michael Abraham] Maybe his wife paid and he didn’t see? Could be. Maybe he’s just giving the man money so he won’t hang him? Maybe he didn’t repay and then changed his mind? That’s the principle of admission by a litigant. Now understand that admission by a litigant being like a hundred witnesses is basically a kind of migo. Because when I say “I owe you one hundred shekels,” after all, if I had wanted to lie I could have stayed silent and not said that I owe you one hundred shekels, right? Obviously I’m formulating this absurdly, but I’m showing that this is basically ultra-migo, meaning it’s the logic of migo only multiplied. Okay? Because migo says: if I wanted to lie, I would say something more favorable to myself. Here too I say: if I wanted to lie, I would say something more favorable to myself—meaning not to lose one hundred shekels, but to lose nothing at all. That’s obviously an understatement, but what Rashi says in our Talmud / Talmudic text here…

[Speaker E] That Rashi says about “Rabbi Yehoshua admits” in the case of the field, where he says “it belonged to your father”—well, wait…

[Rabbi Michael Abraham] Wait, we’ll get to that in a moment after we settle admission by a litigant—we’ll get to it in a second.

[Speaker E] No, but according to Rashi he’s not claiming from him at all.

[Rabbi Michael Abraham] Right, wait, we’ll get there, we’ll get there. So admission by a litigant is basically some kind of ultra-migo. And about that too I could really ask the same question I ask about migo. After all, the litigant is a litigant, and the fact that admission by a litigant proves that he is speaking the truth, because if he had been lying he wouldn’t have incriminated himself or obligated himself—so what? But a litigant’s words don’t obligate. The same question I asked about migo I can ask also about admission by a litigant. What do I care that it’s like a hundred witnesses? So what? Is that what you were just talking about? No, because he can’t testify himself about the loan. So what do I care that admission by a litigant proves that what he says is true? I also agree that it’s true, but he’s a litigant. Okay? So the same question I asked about migo I can also ask about admission by a litigant. The point is that according to Nachmanides one could still say that migo helps to extract, and Nachmanides does see migo as evidence, not as something concerning the person himself alone, but rather through the person himself it creates—but according to Tosafot, where it is really evidence concerning the person himself, and therefore it is not evidence because the person himself is disqualified not because of suspected lying, then what does he do with admission by a litigant? And the answer is very simple; it also depends on what I said earlier. If there is an admission by a litigant that you owe one hundred shekels, then who are we to tell you to keep it by you? After all, what is the role of the two litigants? Not to tell us what the truth is, right? But what? To tell us what they are asking for, right? One says: I request my hundred shekels. The other says: what do you mean, those are not your hundred shekels; I request the religious court leave it with me. They raise claims; their claims are what they are asking the religious court for. Those are their claims. Right? It’s not the question of who is right. Okay? Now when someone admits, in admission by a litigant, the point is not that there is evidence against him because admission by a litigant is like a hundred witnesses. It’s like a hundred witnesses de facto, meaning money comes out of him, but not by that mechanism—it does not work like evidence of a hundred witnesses. Now if you are not asking the religious court to leave the money with you, then the religious court will not do that. Not because we concluded that you are right and you really owe him one hundred shekels—that’s not the point. You’re not right; you’re a litigant. But you have to—it’s kind of adversarial. The legal system in Israel is adversarial. What does adversarial mean? The judge is not active. The sides have to raise arguments and the judge decides who is right. But if, for example, the judge sees that there is another argument that this side missed—he could have made this argument and won—the judge stays silent. The judge does not raise that argument. Arguments that you don’t raise, we will not raise for you. In some respects, by the way, migo is not adversarial, because the judges raise alternative arguments for the litigants—that is exactly what Maimonides that we read last time says.

[Speaker B] We saw that with heirs too.

[Rabbi Michael Abraham] Yes, but with heirs that’s obvious. I think even a secular court here could say that. Heirs don’t know, so you have to protect them, because otherwise anyone can pounce on them and win. That’s an exceptional case. But in ordinary cases—the argument here is exactly the same thing. You’re not asking the religious court to protect your rights; you say: I owe him these one hundred shekels. So why should the religious court do that? The religious court at most responds to the request that you ask of it. If you don’t ask, no problem. Okay? Therefore admission by a litigant really does not operate like migo. According to Tosafot it does not operate on the evidentiary plane. It’s not that there is evidence against me because I myself admitted, so obviously I owe. No, not because of that. My statements are statements of a litigant; it doesn’t matter whether I brought proofs or didn’t bring proofs. I’m a litigant. I can’t clarify reality. It’s just that the religious court says: we sit in order to adjudicate the claims the parties raise. If you want money and you don’t want to give the money, we’ll see who is right. But if you want to give him the money, then give it—what do you want from me? I don’t have to adjudicate things that you’re not asking me about. Okay? I once mentioned the story with Alexander of Macedon, who came to Lodkia, from Vayikra Rabbah, in two places in Midrash Rabbah. In Parashat Emor, I think, it says he gets there—what?

[Speaker B] Katzia? Yes, the midrash in the same place in Lodkia.

[Rabbi Michael Abraham] Ah, the midrash in the same place at the same period, I don’t know exactly. He came to that place and heard that the king there was a very wise king, and he went to see how he judged people. The king was the judge there. So two people came before him—he saw a case there. Two people came before him. One person said: I bought from the other a ruin, a courtyard, whatever, and I found a treasure there. Okay? Now I claim that the treasure is his. I bought only the courtyard. What do you mean, the treasure? The treasure is his; it doesn’t belong to me. The other says: what do you mean? I sold him the courtyard including what was inside it; if there was a treasure inside it, then I sold him the treasure. So the king of course said: do you have a son, do you have a daughter? Let them marry and get the whole thing. That’s for the Hasidim. But the Lithuanians ask: what is the actual law? Leave me now with the pilpul, the answers, and the King Solomon stories about “cut it in half” and so on. The Lithuanians aren’t interested in those stories.

[Speaker B] That it belongs to the king.

[Rabbi Michael Abraham] Huh? The law in such a case—the law in such a case is that there is no law. What? The religious court does not sit to adjudicate. If nobody asks the religious court—if nobody asks the religious court to adjudicate and protect his rights, the religious court doesn’t convene. You’re not getting along, each one wants to give the other a gift and the other won’t accept it. So what? If I want to give you a gift and you don’t want to accept it, are we going to go to court? What business is it of theirs? Work it out between yourselves and decide whether you’re giving gifts or not. The religious court sits only where you petition it, where you ask it for protection.

[Speaker B] Here not in this story of the treasure and the owner of the field comes…

[Rabbi Michael Abraham] No, that’s a different story. I’m not talking about that story. I’m talking about the story here. I just came to illustrate the idea I said here about admission by a litigant: that the religious court sits where I ask it for protection. But if I don’t ask it, then it won’t sit.

[Speaker C] That’s all. And can you ask them in such a case if there is a problem taking ownership of this treasure for some reason?

[Rabbi Michael Abraham] Fine, then that has to be discussed. But in the case I just described there is no story.

[Speaker C] There, where they’re giving it as a gift?

[Rabbi Michael Abraham] What gift? It’s not a gift. He claims that the treasure belongs to the seller, and therefore he wants the seller to take it. And the seller claims: what do you mean? The treasure belongs to the buyer, and he should take it. But from the religious court’s standpoint, neither of them is asking the religious court to protect his rights, right? On the contrary, he wants to give…

[Speaker C] Let’s say this treasure now is, I don’t know, thousands of cows… exactly, let’s say this treasure now is…

[Rabbi Michael Abraham] I don’t know, thousands of golden cows… and she doesn’t want them to be here. Why say? You don’t want them to be there? Remove them. What do you want from me? Then remove them. What do you want from them? So remove them, Iris. Iris, Iris, then remove them. You don’t want them with you? Remove them, throw them into the sea. What, does it cost money to remove them? Throw them out. What, does that cost money? No, because they’re cows, because they’re cows. But it would cost money to remove them too, even if he…

[Speaker B] Even if he takes the cows…

[Rabbi Michael Abraham] Even if he takes the cows, then he’ll have to pay. It doesn’t cost you money to remove them. You’d have to pay anyway. It costs nothing. That’s not the point. The point is that when you don’t ask the judges for protection, the judges do not sit to adjudicate. That’s all. But in the case of the litigant, he kind of denies it, no? Doesn’t matter. When you made the claim, you weren’t asking for protection. Afterwards you tell stories. We don’t sit to adjudicate. I’ll tell you more than that, and I’ll give you a more extreme example. Take a more extreme example. A person comes and claims money from me, and I say to him: nothing of the sort ever happened. I didn’t borrow at all. Now two witnesses come regarding that there was a loan. After I said that, the other one brings two witnesses that there was a loan, okay?

[Speaker B] In the first lesson that was it. No no, wait.

[Rabbi Michael Abraham] Two witnesses come and say there was a loan, okay? Now I said there was no loan. Now I say, wait, wait—I repaid.

[Speaker B] Ah no, you don’t have a migo.

[Rabbi Michael Abraham] Forget migo. I say: I repaid. What do you mean? Anyone who says “I didn’t borrow” is like saying “I didn’t repay.” After all, your initial claim in the religious court was that there was no loan at all, so what are you telling me now, that you repaid? In other words, we accept the witnesses that there was a loan—wait—we accept the witnesses that there was a loan and accept your admission by a litigant that you did not repay. That is admission by a litigant. Not that I didn’t repay. Wait, exactly. But he didn’t say “I didn’t repay.” He said “I didn’t borrow.” But from our perspective that is considered like admission by a litigant that he did not repay. Because understand: even if there are witnesses to the loan, even if there are witnesses to the loan, I can still say “I repaid,” and still he won’t win. But because at the beginning I said “I didn’t borrow,” and anyone who says “I didn’t borrow” is also basically saying he didn’t repay. Now wait, wait—now two witnesses come and say: you borrowed, and you had already admitted before that you didn’t repay—pay. That too is called admission by a litigant in Jewish law. Now understand: here the person did not say “I didn’t repay.” He didn’t come to give gifts. He wants the money. He says “I didn’t borrow.” Right, but included within your words is that you didn’t repay. From our perspective this is admission by a litigant. Now here it is very hard to understand why this is admission by a litigant. The person did not intend to obligate himself. There isn’t all that migo, that ultra-migo, that I described earlier—that if I had wanted to lie, I would have lied with a better claim. What better claim? I said the best claim there is. I said: nothing of the sort ever happened. There is no ultra-migo here. There is no consideration that if I incriminate myself then believe me. On the contrary—I didn’t come to incriminate myself. I came to go free. I said: nothing of the sort ever happened. It’s just that somehow within my words it came out that I incriminated myself. That too is called admission by a litigant, and that is a great question why.

[Speaker B] You’re saying that they obligate him not because of the witnesses but because of the first testimony he gave?

[Rabbi Michael Abraham] Both. Both together. The witnesses prove that there was a loan, and his words prove that there was no repayment.

[Speaker B] That he has no migo. But why is that?

[Rabbi Michael Abraham] No, no, no—there’s no migo. Without migo.

[Speaker B] What? I don’t need? You need.

[Rabbi Michael Abraham] Because if the witnesses say that there was a loan?

[Speaker C] No, they said…

[Speaker B] Right, there was a loan.

[Rabbi Michael Abraham] Right, there was a loan, and I repaid.

[Speaker C] But he can’t say that anymore. Once he said there was no loan, he can’t now say there was and I repaid. They don’t—I don’t need them.

[Rabbi Michael Abraham] You do need them. Because you’re saying that if he is silent—if he is silent, then he can say I repaid.

[Speaker C] No, if he had been silent and there were…

[Rabbi Michael Abraham] …witnesses, then he could say I repaid.

[Speaker C] …he would still have the word preserved for him,

[Rabbi Michael Abraham] The admission by a litigant that was in his first claim is what prevents him from now saying I repaid, because he admitted that he did not repay. That is admission by a litigant. Now here there isn’t the logic of admission by a litigant. There isn’t the logic of admission by a litigant here, because the logic of admission by a litigant says: a person doesn’t hurt himself. If a person said something against himself, then apparently he is speaking the truth. Now here he didn’t intend to hurt himself; he intended to gain, it just turned out that he hurt himself. There is no logic of admission by a litigant in such a thing. So why is this called admission by a litigant? The answer is very simple, just as I said earlier: because admission by a litigant is not evidence against me, it is not ultra-migo. Admission by a litigant means: what am I asking of the religious court? That is what the religious court will adjudicate. What did I ask the religious court? Did I ask the religious court to adjudicate the question whether there was repayment? What do you mean? I said there was no loan at all. So that’s it. So the religious court will not adjudicate my claim now that I repaid, because when the case came up, the two parties each set before the religious court what he wanted the religious court to rule on, what to adjudicate. He said: I want you to adjudicate whether there was or was not a loan. I’m not talking about repayment, there is no repayment, repayment is irrelevant. We adjudicated, we brought witnesses, we reached the conclusion that there was a loan. That’s it. The hearing is over, because you didn’t claim that you repaid. It’s like adversarial procedure. If you were to claim that you repaid, we’d adjudicate, but you didn’t claim that you repaid, so we don’t adjudicate on your behalf. It’s adversarial. Okay? Therefore it works like that. This explanation in this case is excellent evidence for the explanation I gave earlier of the mechanism of admission by a litigant. Because otherwise it is very hard to understand why such a thing is called admission by a litigant.

[Speaker D] This explanation is a formal explanation of why, basically…

[Rabbi Michael Abraham] No, it’s not a formal explanation. Think about…

[Speaker D] But the logical explanation is simply that we don’t believe him, and now we have to find under which formal clause this can be fitted, and then we’ll get to…

[Rabbi Michael Abraham] What do you mean we don’t believe him? “We don’t believe him” means nothing. I also might not believe anyone, but if he makes a claim and I have no evidence against him, he will win. What does “I don’t believe him” mean? The question is why you are taking the money from him. What is “I don’t believe him”? Not believing is in the heart—take a pill. You need evidence. A religious court has to act with evidence.

[Speaker D] Why is that so? Because, for example, we said in this matter that a person does not repay within the term. Right. A presumption…

[Rabbi Michael Abraham] …that’s evidence. Why evidence and not belief in general?

[Speaker D] It’s not belief, it’s facts.

[Rabbi Michael Abraham] Facts? People don’t repay within the term—that’s evidence. Statistics, not facts. Fine, statistics are a fact. Applying statistics to a particular case is an application, not a fact. That’s logic. But the statistics themselves are a fact. I did statistics and saw that 90% of people do not repay within the term. That is a fact.

[Speaker D] But it doesn’t teach about the specific case.

[Rabbi Michael Abraham] Why not? It does teach. By that standard the law of gravity also isn’t a fact. There are those who would argue that, based on what you’re saying. The law of gravity is also a generalization based on cases I saw. A generalization based on cases I saw—that’s how they reached the law of gravity. If you don’t accept generalizations based on cases you saw, then the law of gravity also isn’t a fact.

[Speaker B] Also in your Genesis.

[Rabbi Michael Abraham] Yes. Okay, fine. So with that I’ve finished the first part. One more sentence: maybe according to this it’s also clear—look, in criminal law, not in monetary law, the rule is that a person cannot render himself wicked. And if a person comes and says: I borrowed with interest, or I murdered—he is not convicted; he is not considered a witness about himself. Okay? There too, on the face of it, this is admission by a litigant. There is excellent evidence there—it’s like ultra-migo, after all a person won’t hurt himself, so if he says it, then apparently it’s really true. Why don’t we accept it? Answer: exactly what I said before. Because the ultra-migo doesn’t exist here. I’m a litigant. Evidence in my favor doesn’t help at all. Rather, in a place where I don’t make requests of the religious court, the religious court does not adjudicate; therefore admission by a litigant works. In criminal law there are no claims in that sense. In criminal law, the claimant is the state, not you. And you—you can’t… what does it mean, admission by a litigant is like a hundred witnesses, when I say that I’m wicked? What does that mean? So therefore I’m not asking you to adjudicate my wickedness. You don’t need to ask us to adjudicate; we adjudicate your guilt. Only in monetary law do both parties have standing in that they place before the religious court the boundaries of the discussion, what to adjudicate. Their claims determine what to adjudicate, what you are asking for. But in criminal law we don’t adjudicate what you ask; we adjudicate what the truth is. And in terms of the truth, what you say means nothing because you are a litigant. Therefore a person cannot render himself wicked, even though admission by a litigant in monetary cases does help. There a person can render himself liable in money matters, but in criminal law a person cannot render himself wicked. And why? If it were evidence, then what’s the difference between evidence here and evidence there? It’s like a hundred witnesses; a hundred witnesses also help in criminal law. Why not? Because even in monetary law it doesn’t work on the evidentiary plane. That’s not the evidentiary point at all. Rather, if you don’t ask the religious court, the religious court won’t adjudicate. But in criminal law that rule doesn’t exist, because in criminal law the religious court determines what is being adjudicated. But why is there no such thing in criminal law?

[Speaker D] The plaintiff is the state and the defendant is the…

[Rabbi Michael Abraham] The defendant—there is no defendant. There is no defendant. He sits there quietly. The evidence will say what it says. That’s all.

[Speaker D] Why is that different?

[Rabbi Michael Abraham] Because in monetary law we are not dealing with offenses; we are dealing with the question of who owes money to whom. Whose rights were violated. So the two sides come and petition the religious court: “My rights were violated, protect me.” In criminal law the state wants to check whether you murdered. If you murdered, we don’t care what you claim, we’ll execute you. And if you didn’t murder, we won’t execute you. It doesn’t matter at all what you claim. What difference does it make? You are not a party to the matter. By the way, for example, a confession? What?

[Speaker B] Are you talking about today in the State of Israel?

[Rabbi Michael Abraham] No, I’m talking about halakhic / of Jewish law law.

[Speaker B] By the way, do you have a concept of criminal law?

[Rabbi Michael Abraham] It’s called a concept—I’m taking the modern concept and applying it to Jewish law. In those areas that today are called criminal law in Jewish law, a person cannot render himself wicked. And by the way, the full sentence written there goes like this: “A person is close to himself, and a person cannot render himself wicked.” Talmud / Talmudic text in Sanhedrin. What is that? Why does it open with “a person is close to himself”? To tell you that the reason a person cannot render himself wicked is that a person is close to himself, because he is a litigant, a party to the matter. He is not believed; this is not a question of credibility. Even if you bring a migo to show he is right, what difference does it make? It’s like migo for relatives. A person is close to himself; a litigant is disqualified in his very person. What will it help that there is a migo in his favor? The whole question is what the evidence is.

[Speaker C] And what if a person says he murdered—do we say that’s okay?

[Rabbi Michael Abraham] No, we won’t adjudicate based on the fact that he says he murdered; rather we will check whether he murdered by evidence. Witnesses?

[Speaker C] Two witnesses in that case, yes.

[Rabbi Michael Abraham] Only that. Right. Okay? There is a difference between monetary law and criminal law. In monetary law it begins with a petition to the religious court, because someone whose rights were violated goes to the religious court: “Protect me.” Criminal law doesn’t begin there. The religious court prosecutes you, say as the representative of the state. And the legal system initiates the proceeding, not the citizens. Okay? Therefore I don’t care what the citizens say. It’s not interesting. Fine.

[Speaker D] In criminal law, if say the murdered person’s family sues the…

[Rabbi Michael Abraham] There is no such thing. By the way, even in the State of Israel. The murdered person’s family has no standing.

[Speaker D] But their rights—if I want to return the discussion to the language of rights—then their rights were also violated.

[Rabbi Michael Abraham] No. Their rights don’t come up. We are adjudicating criminal law on the question whether he is liable to death, not seeking compensation. If they sue for compensation—our main breadwinner was harmed because you killed him, compensate us—that’s a different matter. Compensation, civil law, monetary law. But if they sue him for the fact that he murdered, they are not a party to the matter. Okay? I didn’t understand.

[Speaker C] What? But these are psychological assumptions…

[Rabbi Michael Abraham] No, no, no. It has nothing to do with psychology. It’s law.

[Speaker C] A person cannot render himself wicked—those are psychological assumptions.

[Rabbi Michael Abraham] No, it’s not psychology. It’s not psychology. It’s law—what I’m saying. A person cannot render himself wicked is a legal rule; it’s not a psychological assumption. What do you mean, a person cannot render himself wicked? Good Lord, that’s exactly what you keep repeating. I’m telling you again: you assume it’s psychology and then you challenge it. I’m telling you: don’t assume it’s psychology, and don’t challenge it. It’s a legal rule. A person cannot legally render himself wicked—not that a person doesn’t do it. Okay? Legally, a person cannot render himself wicked. Yes, exactly. Not because he isn’t wicked and not because… By the way, there’s a very common mistake about this, with an extremely amusing twist. In the Miranda ruling in the United States, which is the source of the Fifth Amendment—where they don’t accept self-incrimination, a person has the right to remain silent, and they have to tell him he has a right to a lawyer and the right to remain silent and all sorts of things, because he can incriminate himself if he speaks, and so on—that’s called the Miranda warning. In the movies, whenever they arrest someone, there’s the Miranda warning. That follows from that Miranda case. In the Miranda case, the gentile American judge quotes Maimonides on “a person cannot render himself wicked.” And he says there that self-incrimination is not accepted because there is concern that he was tortured, and who knows how they got the… very topical issues right now. Now that’s a mistake. It’s a mistake because the rule in Jewish law that a person cannot render himself wicked is not because of concern for falsehood, that he’s not telling the truth; it’s inadmissibility. It’s not reliability. It’s not admissible. Now what’s nice here is that the energetic Israeli judges take this Maimonides from the Miranda ruling. And if you look in many rulings, they bring it and explain that a person cannot render himself wicked because maybe they tortured him and maybe this and maybe that. And they say it’s also written in Maimonides and in the Talmud / Talmudic text, and they look like great scholars, and the whole thing is based on a mistake. Okay. Now I’m moving on to our chapter; it took me much longer than I thought.

[Speaker D] Us too. Okay.

[Rabbi Michael Abraham] Where are you holding in terms of the topic / passage? Right here. Ah, you haven’t started? I gave them—we’re exactly in the summary of the…

[Speaker D] Okay. Fine, so come see, we’ll do this…

[Rabbi Michael Abraham] …

[Speaker B] Together more or less, because I really…

[Rabbi Michael Abraham] Okay, I’m moving on to our chapter. It took me much longer than I thought. Us too. Us too. Okay. Where are you up to in the passage? Exactly here. You didn’t start? No, we finished all the topics of this one, but not everything. Okay. Fine, so let’s see—we’ll more or less do this together, because really there’s background here; I tried to give it to you in detail, because I really felt a lot, a lot of background was missing here. So first we’ll go over the background. The ketubah, all right? A husband writes a ketubah for the wife. What do you do with a ketubah? That already really gets into our passages, so this background mainly belongs to the first chapter, by the way, so I’m not really going to get into it here, but I need to give the background so we know what we’re talking about. The husband writes a ketubah, a ketubah document, and gives it to the woman at marriage. The ketubah is realized in two cases: either the husband dies or he divorces his wife. If the wife dies, she loses the ketubah. All right? So when a ketubah is sold, it isn’t sold for the full amount written in it, because there’s a chance it will be realized and a chance it won’t be. Why would anyone buy it? Because a woman wants to sell her ketubah to someone else in exchange for cash.

[Speaker D] So if the money becomes due to her, then that other person—he has a document that the husband… this is in the Talmud in Makkot, the Talmud in Makkot—

[Rabbi Michael Abraham] On page 5—that a woman can sell her ketubah, and the price she gets is based on doubtful rights. Meaning: what are the chances that in the end either she’ll be divorced or her husband will die, versus the chance—you need an actuary, right?—versus the chance that the woman will die and then the ketubah is gone.

[Speaker F] Wait, I have a naïve question, okay? I mean, I understand less about Jewish law. Her wanting to use the ketubah, that is—

[Rabbi Michael Abraham] She wants to realize the asset. After all, a ketubah is a future asset.

[Speaker F] Fine, that’s fine, but basically that’s after she’s widowed—no!

[Rabbi Michael Abraham] After she’s widowed there’s nothing to sell; she already got the money, and then there’s nothing here.

[Speaker F] No, but this has to be with his cooperation. No, no.

[Rabbi Michael Abraham] Again. She has a ketubah document, okay? A month after the marriage she wants to fly abroad, she has no money. All right? So she says: I have a ketubah document, but right now I can make a paper airplane with this document. The question is what will happen another ten years from now, twenty years from now—maybe I’ll get money, maybe I won’t, depending on what happens. What does she do? She looks for a client, a buyer. Who is willing to buy this ketubah document from me, and then what? If either I get divorced or the husband dies, you’ll get the money. When it materializes, you’ll get the money. If I die first, you lose. Now you need an actuary to evaluate it; let’s say the ketubah says 1,000 shekels, then he’ll buy it from her for 500, all right, because that discounts it to the present and also reflects the chance it will actually be realized. Anyway, in short, that’s the ketubah.

[Speaker C] Now, wait, and if you said that if she dies she loses the ketubah, what practical difference does it make that she loses it?

[Rabbi Michael Abraham] Nothing—the money stays with the husband.

[Speaker C] Why can’t he receive it?

[Rabbi Michael Abraham] Inheritance. Why?

[Speaker E] If she has no sons?

[Speaker C] Is this the ketubah of male sons from previous marriages?

[Rabbi Michael Abraham] For example, doesn’t matter, yes, whatever it may be.

[Speaker C] No, because their sons together will receive from him.

[Rabbi Michael Abraham] Fine, it could

[Speaker C] be.

[Speaker F] From previous marriages, from whatever you want, it doesn’t matter.

[Rabbi Michael Abraham] But it’s—

[Speaker C] her ketubah, why should they get it?

[Speaker F] Because it’s not her ketubah, that’s what I’m saying.

[Rabbi Michael Abraham] The ketubah is not hers. The ketubah is hers only on the condition that either she— or—

[Speaker F] that he dies or she gets divorced. But I can realize it as a loan—

[Rabbi Michael Abraham] So why isn’t it hers? You can realize it only partially. You can sell the ketubah at a partial price to someone willing to take the risk.

[Speaker F] But the very fact that I can sell it means it’s mine.

[Rabbi Michael Abraham] What does “yours” mean? It’s yours to the extent that you can actually realize it. Fine. I have a lottery ticket—is it mine? All right. Is a lottery ticket mine?

[Speaker F] No. Are these hands yours?

[Rabbi Michael Abraham] Yes. I can sell it, right? So how much would you buy the ticket from me for—a billion dollars? That’s the prize, no? No, it depends on the chance that you’ll receive those billion dollars. That’s all. It’s a lottery ticket; a ketubah is a lottery ticket. All right. Now, the amount in the ketubah—wait, let’s move on because I really want to finish—let’s move on. There are two amounts in the ketubah. If the woman was a virgin when she married, or really when she became betrothed, then it’s two maneh, what’s called two hundred. If she was not a virgin—whether a married woman, or not a virgin, or for any other reason—

[Speaker C] Known to everyone, basically, then it’s one hundred.

[Rabbi Michael Abraham] Yes, everybody knows, men and women. Yes, exactly. Now, a woman who was not a virgin and didn’t tell him—she told him she was a virgin and he wrote her a ketubah of two hundred—that’s a mistaken transaction. It’s a mistaken transaction, and therefore essentially it’s void and she gets nothing. There are some—it’s a dispute in the Talmud—some want to argue that it’s one maneh; not important, but that’s a mistaken transaction. Okay. The determining moment for the amount of the ketubah is the moment of betrothal. Even though the ketubah is always delivered at the time of marriage, the determining moment is really the time of betrothal. Because in the past there were twelve months between betrothal and marriage; today they do it together. Okay. So the determining moment is the moment of betrothal. If she was a virgin or not a virgin at the stage of betrothal, that determines the amount of the ketubah. Therefore, if she had relations after betrothal by force, then she says to him, “Your field has been flooded,” meaning: tough luck, what can you do? Your loss. If she did it willingly, then she essentially damaged his rights, and then she loses the ketubah. All right? Now, after we’ve said that—usually the amount of the ketubah is written in the document, right? Then there’s no problem; a discussion comes up, they take out the document and see how much the husband owes her. How can there be an argument whether it’s one hundred or two hundred? If the document was lost. The document was lost. Now, by the way, in principle it’s forbidden to live together without a ketubah, but never mind. There are cases where the document was lost, and now the question is what to do. So the woman claims the document said two hundred—I was married as a virgin. And the husband says, what are you talking about? You were married as a non-virgin; it said one hundred. Who is the claimant? The woman, right? She wants the money. He admits to one hundred, essentially, even though she wants two hundred—maybe that’s even a partial admission. So the burden of proof is on her. Seemingly she needs to bring proof, yes? The money is with him. She wants the money. She wants two hundred; he says I owe you only one hundred. What belongs to her—one hundred or two hundred—that’s the argument. Partial admission. The money is in the husband’s possession, and now she wants him to give her two hundred. He says absolutely not, I owe you only one hundred. Whether that’s called partial admission is an interesting question, but I’m not getting into it now. Maybe not, because the argument is only about the second hundred; no one disputes that there is a ketubah here—they’re married, that’s clear. Now, the argument—what does the argument depend on, whether it’s one maneh or two hundred? On a few questions. Did she have relations or not?

[Speaker D] First of all—

[Speaker E] What kind of mechanism was this—

[Rabbi Michael Abraham] there was—you said there was no record, yes? So that’s why there’s an argument here. So the question is what was her status when she married—when she became betrothed, sorry. Was she a virgin or not? If she wasn’t a virgin, why wasn’t she a virgin? Was she injured by wood, or had intercourse, or things like that. Was it—if it was after betrothal, it depends whether it was by force or willingly; before betrothal it doesn’t matter, but after betrothal the question is whether it was by force or willingly, what we said earlier. With whom did she have relations? But we won’t deal with that much; if it was with someone fit or disqualified, that’s another discussion. So that’s the whole topic around which the discussion revolves, and these are very complicated passages. Passages, by the way, in the legal rules of claims and counterclaims; these are really passages in Even Ha-Ezer, passages in Choshen Mishpat. Meaning, we’re discussing a monetary dispute; it’s just that the discussions revolve around the woman’s status and what happened and so on, but essentially it’s a money discussion. That’s part of Choshen Mishpat, and that’s what the first chapter of Ketubot and now this part of the second chapter deal with. Okay? Now what stands here? Now we already come equipped. We saw all the introductions with migo, and by means of migo I also brought in many other data points. Now look. What is really under discussion here? On the one hand—or what is the initial status? On whom is the burden of proof? What’s going on here? How does the discussion begin before bringing evidence and all kinds of things like that? What is everyone’s status? On the one hand, the woman has a bodily presumption. What does that mean? A woman always starts out as a virgin. Whoever claims she isn’t a virgin is claiming that something happened, right? Therefore, there’s basically an advantage to the one who says she’s a virgin. The one who says she’s a virgin is basically saying nothing happened; the situation was as it was and remained as it was. So in a certain sense, there’s an advantage to the one claiming she’s a virgin. The woman who says she was married as a virgin and therefore deserves two hundred has an advantage; she has a bodily presumption in her favor. Right? I call that a bodily presumption, as distinct from a monetary presumption. Her body is presumed to have the status that she is a virgin. Monetary presumption belongs to the one who holds the money. That’s a different discussion. That’s one strand. So in effect, the husband is coming to remove her from that bodily presumption. He’s coming to say: true, you were a virgin when you were born and until marriage—but until betrothal, or sorry, until shortly before betrothal, but already before betrothal you became a non-virgin. So you’re trying to take her out of the presumption in which she had previously stood. So in that sense you’re, as it were, taking from another. Not taking money from another, but taking another out of their prior status, their initial status. The second parameter: monetary presumption. Monetary presumption is with the husband. Right? In the simple case, who is extracting from another? The woman, right? Because the money is with the husband and the woman wants to extract the money from the husband. A third parameter, and this is important: usually the situation is that the woman makes a definite claim and the husband makes a doubtful claim. The husband doesn’t know what happened there, right? Therefore, at the time of betrothal—at the time of marriage, by the way, maybe the husband does know, because through intercourse maybe he can feel whether she was a virgin or not. But we’re discussing whether she was a virgin at the time of betrothal, not at the time of marriage. And intercourse only takes place after marriage. So essentially the husband can’t know, and everything the husband claims is basically a doubtful claim. Either a doubtful claim, or a claim that “that’s what you told me—you told me you were not a virgin and therefore we wrote one maneh in the ketubah.” Now she claims, what are you talking about? No such thing ever happened—I was a virgin and it said two hundred. All right? But the husband himself cannot know the fact. All he can do is make claims. Therefore, in essence the husband’s claim is a doubtful one. Maybe you weren’t a virgin—prove that you were, because you’re trying to extract money from me, and I’m the possessor. Prove that you were a virgin and not a non-virgin. Okay? So on the one hand the woman is the one extracting, on the other hand… okay? Those are the three parameters. Besides that, there’s also the issue of migo, which we’ll get to in a moment. All right? But those are the three parameters, and now of course the game of evidence begins. But of course the game of evidence is supposed to begin—it doesn’t begin, there’s no evidence. What I said, like “the burden of proof is on the one who seeks to extract from another,” which is a rule of procedure. But in reality, when people say “the burden of proof is on the one who seeks to extract from another,” they are almost never talking about procedure. It means: if no evidence was brought, who wins? The possessor, because the burden of proof is on the one who seeks to extract. It’s a rule of decision, not a procedural rule. Same here. Everything I’ve said until now is seemingly procedural rules. Who has to bring evidence? What is each one’s starting point? But really, it also tells us what will happen in the end. If nobody brings proof, now we need to discuss, in light of the data I stated here, who will get the money and how much. Okay? So that’s really the discussion here. Who bears the burden of proof? And this is the dispute between Rabban Gamliel and Rabbi Yehoshua. Rabbi Yehoshua says, “We do not live by her mouth,” basically Rabbi Yehoshua says the woman is not believed, because she is extracting from another. Even though she makes a definite claim and the husband a doubtful one. Why? True, she is extracting—but she makes a definite claim? Because a definite claim against a doubtful one does not help to extract. That’s the beginning of the Talmud there: a definite claim versus a doubtful one does not extract. That’s on the Mishnah on page 12. There the Talmud begins with the point that a definite claim against a doubtful one does not extract, and ties it to this discussion. Seemingly this is the dispute between Rabban Gamliel and Rabbi Yehoshua. All right? So essentially we ignore the woman’s bodily presumption. It doesn’t seem to play a role here, apparently. Right? There is the husband’s presumption—the husband is the possessor—and there is the definite versus doubtful claim. The second and third parameters are in play here, and the dispute is whether a definite claim against a doubtful one helps against a possessor, or does not help against a possessor. Rabbi Yehoshua says it does not help; Rabban Gamliel says it does help. That’s apparently what emerges from the Talmud.

[Speaker D] The bodily presumption is difficult—it doesn’t sound to me on the same level as monetary possession and all that.

[Rabbi Michael Abraham] Fine. Never mind for now; for various reasons I’m not getting into it right now. Bodily presumption doesn’t play a role here, at least not a central one. Okay? That needs discussion in the passages of the first chapter, but for now this is enough for us. Now, the Talmud on page 12b discusses there indeed the dispute between Rabban Gamliel and Rabbi Yehoshua on that case, and it brings the dispute of the Amoraim regarding whether a definite claim against a doubtful one can extract or not: Rav Huna and Rav Yehuda against Rav Nachman and Rabbi Yochanan.

[Speaker B] Okay?

[Rabbi Michael Abraham] Did you see that? This issue that a definite claim against a doubtful one does not extract? So seemingly the Talmud says that Rabban Gamliel holds that a definite claim against a doubtful one does extract, and Rabbi Yehoshua holds that it does not. Now in Jewish law we rule that a definite claim against a doubtful one does not extract. On the other hand, in Jewish law we rule like Rabban Gamliel.

[Speaker E] Okay, wait, we rule that only together with migo, not by itself.

[Rabbi Michael Abraham] Wait, wait, wait—you’re jumping ahead. The Talmud asks: how can that be? After all, on the one hand we rule that a definite claim against a doubtful one does not extract, all right? On the other hand we rule like Rabban Gamliel, who seemingly says that a definite claim against a doubtful one does extract—the woman is believed. The Talmud says: what are you talking about? According to Rabban Gamliel, the woman also has a migo. The woman makes a definite claim, and she also has a migo—the migo of “injured by wood”—and therefore she can extract from a possessor who makes a doubtful claim. Okay? That’s what the Talmud says.

[Speaker C] But basically they don’t believe the woman? What? Yes, the truth is they don’t—only because of the migo.

[Rabbi Michael Abraham] Because of the migo, they believe her.

[Speaker E] No, so—

[Speaker C] then the law is entirely like Rabbi Yehoshua, not

[Speaker E] Rabban Gamliel—that’s just—

[Rabbi Michael Abraham] Exactly, exactly—there’s a subtle point here. In the Talmud itself it sounds like Rabban Gamliel himself disagrees even without migo. That’s it. It’s only we, who rule in practice like Rabban Gamliel, and on the other hand rule that a definite claim against a doubtful one does not extract—we combine those two things. After all, the Talmud explicitly says so on page 13a. Right? “But according to Rabbi Yochanan, why do I need both? One to teach you the force of Rabban Gamliel, and one to teach you the force of Rabbi Yehoshua. The first teaches you the force of Rabbi Yehoshua, that even though one could say migo, she is not believed; the second teaches you the force of Rabban Gamliel, that even though one could say migo, she is believed.” Meaning, Rabban Gamliel and Rabbi Yehoshua do not distinguish between a case with migo and one without migo—neither of them does. Rabbi Yehoshua says the woman is not believed whether she has a migo or not, and Rabban Gamliel says the woman is believed whether she has a migo or not. All right? Migo does not play into the dispute between Rabban Gamliel and Rabbi Yehoshua. Migo plays into our practical ruling. That’s how it appears from the passage there. In our practical ruling, we rule like Rabban Gamliel but with an important qualification: only when the woman has a migo. Because if the woman has no migo, then it’s merely a definite claim against a doubtful one for extraction, and in that situation it does not work, and the woman will not be believed. All right? So this split is made in the Shulchan Arukh, not in Rabban Gamliel—in the legal ruling. Okay? That’s basically the background.

[Speaker B] We rule like Rabban Gamliel, but not for his reasons.

[Rabbi Michael Abraham] Exactly, exactly. Because Rabban Gamliel basically rules that way because a definite claim against a doubtful one can extract. That we do not rule. It’s true that here there is also a migo and therefore it works. We just need to know that we also don’t rule like Rabbi Yehoshua here, because Rabbi Yehoshua says that despite the fact that there’s a migo here, the woman is not believed. Even if she has a migo, she is not believed, and that is not true—we rule against him on that point. All right? So this is really a strange case, because basically it comes out that the Amoraim rule like neither of the Tannaim. Now, when there’s a dispute among Tannaim, you say okay, I’m not allowed to disagree with Tannaim. There’s a dispute among Tannaim, so you can rule like one against the other or vice versa. But here, seemingly, I’ve gone against both Tannaim. I rule against both of them, because essentially it’s neither like Rabban Gamliel nor like Rabbi Yehoshua. All right, but Rabban Gamliel says you don’t need the migo—a definite claim against a doubtful one can extract. So even if there were no migo, it would still work. That’s what Rabban Gamliel says, and we don’t rule like him on that point. If there is no migo, it won’t work. Say we know she was not injured by wood—then she has no migo. All right? Then it won’t help. I once heard a lecture—there was once some rabbinical judge, I told you this—

[Speaker B] This sounds like an opening story I told. I didn’t hear it.

[Rabbi Michael Abraham] There was some rabbinical judge whose lecture I once heard—he later sat in prison, got tangled up, never mind—Hillel Elimelech, years ago already, one Segal. So I once heard a lecture of his, and he told about a certain community where they used to record in the communal register the important legally relevant data. A woman who had been injured by wood—they recorded her, wrote it down, so people would know she was in principle a virgin, since it wasn’t intercourse. A woman who had relations—they also recorded that she had had relations, so people would know that in the ketubah they should write one maneh and not two hundred. So there was a record in the community books. Now there was a very wealthy man whose daughter had had relations, and as is well known the wealthy people pay the salary of the rabbi and everyone else—they’re the ones with power. They come to the rabbi and tell him: you will not write that she had relations; you will write that she was injured by wood, not that she had relations, because I want to marry my daughter into a good social standing. Okay? So the rabbi writes there: on such-and-such a day, this woman on such-and-such a date was injured by wood, written on Tuesday in the order of the weekly reading “for a person is the tree of the field.” Yes—the tree struck her between her legs. “In the order of ‘for a person is the tree of the field’” meaning the weekly Torah portion, yes. Okay. So the Talmud here—this is basically the background, and this is mainly what’s important. Now I’ll move quickly through our Talmudic passage, because that’s really what I need; the details are less important.

[Speaker C] Sorry a second—could we schedule a class at another time, another time that would be okay, where you explain the subtext of all this from a feminist angle?

[Rabbi Michael Abraham] Me and you?

[Speaker C] That the content here is—what, as if she’s merchandise?

[Rabbi Michael Abraham] That the woman is merchandise like this, one hundred, two hundred? For example.

[Speaker C] Okay.

[Rabbi Michael Abraham] So I noted there on the page for you, and also—

[Speaker C] No, because really, from my side, I don’t know what to answer to something like that.

[Rabbi Michael Abraham] Okay, we’ll think about it, all right? Maybe we really will do that and devote some time to it. Okay, we’ll talk about it. Fine. So the Mishnah at the beginning of the chapter—now we’re starting the chapter, we’re now starting the semester, okay?—“A woman who became widowed or divorced says: You married me as a virgin, and he says: No, rather I married you as a widow.” Yes, of course the practical difference is the ketubah: the woman wants two hundred and he wants to give her one hundred. “If there are witnesses that she went out with a bridal canopy and her head uncovered, her ketubah is two hundred. Rabbi Yochanan ben Beroka says: even the distribution of roasted grain is evidence.” Roasted grain means roasted things—legumes, nuts, things like that. These were simply things that happened when a woman was married as a virgin. So these are indications that she was married as a virgin. So now we have no document, right? We have no document. The woman wants the ketubah; the dispute is whether she is entitled to one hundred or entitled to two hundred. By the way, if the husband died and she’s entitled to the ketubah, with whom is she arguing? Rashi says there: with the heirs. Right. If the husband divorced her, she argues with him; if the husband died, she argues with the heirs. All right? Now there’s no document; we don’t know what was written in the document. A dispute: one hundred or two hundred. The Mishnah says that in principle the woman is not believed.

[Speaker B] The Mishnah says.

[Rabbi Michael Abraham] According to the Mishnah she is not believed unless there is independent proof that she really was married, betrothed, as a virgin. What proof? In court? What proof? Either there are witnesses that she went out with a bridal canopy and her head uncovered, or there are witnesses that they distributed roasted grain there to children, because that was done at weddings of virgins. By the way, they did this intentionally—they did it in order to provide a sign that she was a virgin, simply a subtle sign. They didn’t want to write “she is a virgin,” so they distributed roasted grain or nuts, and everyone understood that was the context.

[Speaker D] And they write in the ketubah “if a beautiful virgin…” she’ll have—

[Rabbi Michael Abraham] “If a beautiful virgin,” yes, they say that, as though when reading the ketubah. Strictly speaking, they don’t read the ketubah aloud.

[Speaker D] Meaning, a woman who wants now to extract the money from her husband or his heirs—

[Speaker B] the proof is on her, to bring proof that she was a virgin. Right.

[Rabbi Michael Abraham] And these are the proofs she can bring.

[Speaker B] But if we go by the common situation, that most women who marry are virgins?

[Rabbi Michael Abraham] Wait, wait—that’s the Talmud; the Talmud brings that.

[Speaker B] Maybe she’s claiming something incorrect?

[Rabbi Michael Abraham] But the Talmud brings

[Speaker B] that,

[Rabbi Michael Abraham] the Talmud itself discusses the fact that there is a majority that women are married as virgins, and the question is how that plays out.

[Speaker B] Also—

[Speaker D] the proofs—

[Rabbi Michael Abraham] that the Mishnah brings—

[Speaker D] the bodily presumption, basically…

[Rabbi Michael Abraham] Slowly, slowly, we’ll see. No, not bodily presumption. Bodily presumption is that the woman was previously a virgin. “Most women are married as virgins” is a question of what happens at the time of marriage.

[Speaker D] Also these proofs that the Mishnah brings—

[Rabbi Michael Abraham] By the way, today, for example, such a majority probably wouldn’t exist in the general population. Such a majority would not exist.

[Speaker D] And also today they don’t give the amount written in the ketubah.

[Rabbi Michael Abraham] Never mind, I’m just saying—look, notice for example the implications: if we want to apply this today, we need to pay attention. There are factual assumptions here that may not be true, and then you need to check how to apply it today.

[Speaker E] Unless the concept of “virgin” is from the standpoint of modesty—

[Rabbi Michael Abraham] also not a fixed presumption… all kinds of things are taken here as obvious that aren’t necessarily always true. It depends; you have to examine each case on its own. Bodily presumption, yes. Bodily presumption, yes. But presumptions can change, and that depends.

[Speaker D] The Mishnah here basically assumes they don’t believe the woman, and the proofs are proofs that everyone saw—that at the wedding she went out with a canopy or with her hair uncovered or they distributed roasted grain—and these were things enough people saw, and therefore it’s… But if the woman isn’t believed, then why did they do these things at the wedding? They did these things in order to say she’s a virgin. But how do they know whether she’s a virgin or not? Because the woman probably said she was a virgin. So if she isn’t believed, she could also have lied that she was a virgin; they could have ended up in a situation here… That was a migo she had then.

[Rabbi Michael Abraham] But that was a migo she had then. That has nothing to do with the question of what happens now. Now, at the time of litigation, she’s no longer believed to say she was a virgin, because—

[Speaker D] now she wants the money. She’s not believed. But also when she got married she could say, fine, if there will be—

[Rabbi Michael Abraham] If the husband accepted it and committed himself to two hundred, fine, what’s the problem?

[Speaker D] No, I mean the current testimonies are—

[Speaker C] based on believing her, basically.

[Rabbi Michael Abraham] Correct. Correct. It’s believing her about what she did then. Yes. But not what she says today. No problem—what she said then is perfectly fine. But now she is a litigant; she wants to claim money. She can’t now say “I was a virgin.”

[Speaker C] Why not? What’s the problem? If they don’t believe a woman—

[Rabbi Michael Abraham] Who said they don’t believe? Here a legal discussion begins. And in this legal discussion they don’t believe… We’ll explain. Here a legal discussion begins. In a legal discussion there are two sides. We don’t believe either side; we need evidence. When she was married, when she was betrothed, it wasn’t a legal discussion. Someone comes and says, I’m thirteen, I can join the prayer quorum—can I believe him? Why not? What’s the problem? If a legal dispute starts and money depends on it, then no. Then he’ll claim; we need to see what the evidence is, all right? It all depends on context.

[Speaker C] If she had come at the time of the wedding and said I want a ketubah—

[Rabbi Michael Abraham] No, there it wasn’t a legal discussion. If she wants a ketubah of two hundred and he isn’t willing to give it, then they just won’t get married, and that’s it. Here the problem is that they’re already married; now the question is how much he’ll pay.

[Speaker C] Let’s get married—you’ll get it, just prove it.

[Rabbi Michael Abraham] How will she prove it? How will she prove it? A doctor… so there are ways; the Talmud brings them. Rabban Gamliel had a trick for checking it. At first we said—

[Speaker D] Let’s hope that’s not something that entered Jewish law, that every woman who marries—

[Rabbi Michael Abraham] There was, by the way, he brought the sheet.

[Speaker D] And what, you can’t also lie? What, can you—

[Rabbi Michael Abraham] Okay. But never mind. You can always lie. But yes, they sometimes looked for evidence. And still they looked for evidence as to what the situation was. Fine.

[Speaker E] It wasn’t the court that looked for evidence.

[Rabbi Michael Abraham] Depends in what context. Again, it all depends. Sometimes the sheet does reach the court. Yes. So now: “A woman who became widowed or divorced says, ‘I was married as a virgin,’ and he says, ‘No, rather as a widow,’” yes—so if there are two proofs she is believed, and if not, then not. Now comes a second segment of the Mishnah; it’s not clear what this segment is, what connection it even has to the first part. “And Rabbi Yehoshua admits that if one says to another: This field belonged to your father, and I bought it from him—he is believed, because the mouth that prohibited is the mouth that permitted. But if there are witnesses that it belonged to his father, and he says, ‘I bought it from him,’ he is not believed.” This belongs to Bava Batra—whoever studied Bava Batra with us—there, basically, a person says: I’m sitting on a field, say, for a year. Now someone comes and claims against me: this field is mine. So I say to him: this field belonged to your father, you’re right, but I bought it from him. All right? If I’ve been on land for three years, I don’t need any of this at all; after three years it’s mine and that’s that. But now I don’t have three years, so in principle I should have to return it to the prior owner; I’m not believed to say I bought it unless I had a document, and if I don’t have a document showing I bought it, I’m not believed. All right? But here I have a migo. Why? Because I could have said it was never his father’s at all; it was mine from the beginning—I inherited it from my ancestors. All right? Assuming there are no witnesses that it was his father’s and nobody knows—only from me do we know that. That’s called a migo of the type “the mouth that prohibited.” Okay? If there are witnesses that this land belonged to his father, then there is no “the mouth that prohibited,” because I couldn’t have said it was mine from the beginning—there are witnesses it belonged to his father. So there’s no “the mouth that prohibited.” But if there are no witnesses, then there is. If there are no witnesses, then there is. What is this doing here, in the Mishnah? So before discussing the structure of the Mishnah, we need to understand that clearly this passage is brought as a continuation of what was in the first clause. Meaning—not the first clause there, the first clause here. Yes, here. In principle, in the first clause here there is also a situation—say the husband were to say, excuse me—say the husband were the basis for the fact that she was even married to him at all. There’s no proof at all that she was married to him. All right? No proof. And he comes and says: true, she was married to me, but when I married her she was not a virgin, not a virgin. That’s “the mouth that prohibited,” right? The fact that she can claim against me is only because we know at all that she was my wife and that there was a ketubah. How do we know that? I myself, the defendant, said it. I volunteered that information. I have a migo. I could have simply denied that she was even my wife. Then I could have waved her right down the stairs. Basically, according to that—

[Speaker E] Yes, because the ketubah was lost.

[Rabbi Michael Abraham] That’s “the mouth that prohibited,” right? Therefore the Mishnah says here, look: “And Rabbi Yehoshua admits,” all right? “And Rabbi Yehoshua admits that if there is ‘the mouth that prohibited,’ then that’s something else.” All right? For example, if the woman—if the woman says, if the woman admits she is not injured by wood—how does it go there?

[Speaker E] No, not that she admits she’s not injured by wood.

[Rabbi Michael Abraham] The question is how there can be here—fine, let’s stop a second. How can there be “the mouth that prohibited” in the first case of the Mishnah? Because “Rabbi Yehoshua admits” means this:

[Speaker E] She admits she wasn’t a virgin at betrothal. What? But she says, I was—

[Rabbi Michael Abraham] No, let’s say she says “injured by wood” or something like that, but then—

[Speaker E] No, “injured by wood” is the migo—

[Rabbi Michael Abraham] No, “injured by wood” means she really is entitled to 200. That’s not “the mouth that prohibited.”

[Speaker B] Right, so the question is—

[Speaker E] from when that’s called migo.

[Rabbi Michael Abraham] So we’ll leave that, to know when it’s “the mouth that prohibited” and when it’s migo. But on the principled level, one has to understand from the structure of the Mishnah that the Mishnah’s structure is basically saying that there is some dispute in the background, even though it doesn’t appear here, and then Rabbi Yehoshua comes and says: but if there is “the mouth that prohibited,” then I admit. Now we remember that this really revolves around Rabban Gamliel and Rabbi Yehoshua from the first chapter. Right? And there we already know that there is some issue of migo in the background.

[Speaker C] In terms of sequence, that’s a few mishnayot earlier. Right.

[Rabbi Michael Abraham] If you look at the Mishnah, it’s consecutive—the Talmud interrupts it. Right. And then there is here a set of mishnayot all dealing with litigation between husband and wife. There is a dispute between Rabban Gamliel and Rabbi Yehoshua in all these mishnayot, almost in the same form: Rabban Gamliel says the woman is believed, and Rabbi Yehoshua says the woman is not believed. “And Rabbi Yehoshua admits” that if the woman has “the mouth that prohibited,” then she will indeed be believed. All right? Now remember: Rabbi Yehoshua says that even if she has a migo, she is not believed. Right, we saw that in the introduction. Right. Her migo does not make her believed. But if she has “the mouth that prohibited,” then yes.

[Speaker B] Wait, but you said he says the first clause—

[Rabbi Michael Abraham] Yes. “The mouth that prohibited” is a special kind of migo; it’s stronger than migo, and therefore all the introduction I gave now comes to expression. Notice: the dispute of Rabban Gamliel and Rabbi Yehoshua is the background to the whole story. All right? Now this Mishnah clearly, in the subtext, is really talking about the dispute between Rabban Gamliel and Rabbi Yehoshua. And we already know that the dispute between Rabban Gamliel and Rabbi Yehoshua—and this is the end of our passage—in the end they arrive at the fact that this dispute is the dispute of the Mishnah on page 12b, which we saw earlier. Right? And in that dispute what did we see? That according to Rabban Gamliel the woman is believed even without migo. Right? And according to Rabbi Yehoshua the woman is not believed even if she has a migo. Right? “And Rabbi Yehoshua admits” to Rabban Gamliel that if the woman has “the mouth that prohibited.” He doesn’t accept migo, but he does accept “the mouth that prohibited.”

[Speaker B] What kind of “the mouth that prohibited” can there be?

[Rabbi Michael Abraham] Wait—we’ll talk about that, about making the distinction between “the mouth that prohibited” and migo. But that’s what they want to say. Why is a case of land brought here? Because in that context it’s actually hard to find “the mouth that prohibited.” But on the principled level, that’s what the Mishnah wants to say. The same dispute could also arise regarding land law. The whole question is whether we say that a definite claim against a doubtful one can extract or not. Right? If the one making the definite claim has “the mouth that prohibited,” migo alone still won’t help. But if he has “the mouth that prohibited,” that will help. And they bring this in order to say that the same will also be true in litigation over the ketubah. There too we see that according to Rabbi Yehoshua, migo doesn’t help, but Rabbi Yehoshua admits that if there is “the mouth that prohibited,” then the woman will indeed be believed. That’s the context of the Mishnah. Meaning, that’s really what the Mishnah is saying.

[Speaker F] Is “the mouth that prohibited” an enhanced migo?

[Rabbi Michael Abraham] Exactly. For now, let me formulate it that way; we’ll talk about it more.

[Speaker F] Wait, you said that if it’s a definite claim, migo doesn’t help?

[Rabbi Michael Abraham] What? No—migo doesn’t help according to Rabbi Yehoshua. According to Rabbi Yehoshua, even if there is a migo, it doesn’t help. All right? And Rabbi Yehoshua himself admits at the end of the Mishnah that if there is “the mouth that prohibited,” then yes. Now understand: when Rabbi Yehoshua admits, he’s talking altogether about a case of possession of land. But if this is brought in this context, independently of the whole Talmudic discussion, then clearly Rabbi Yehoshua intends to comment also on litigation over the ketubah. Now, when we think about it that way, the conclusion of the Talmud at the very end becomes very clear. They’re really talking about the dispute on page 12b, and the dispute on page 12b we already saw: according to Rabban Gamliel, the woman is always believed. According to the practical law, the Shulchan Arukh—which is neither Rabban Gamliel nor Rabbi Yehoshua—she is believed only if she has a migo. According to Rabbi Yehoshua, she is not believed even when she has a migo. Three positions. In the Mishnah here Rabbi Yehoshua comes and says: yes, but if she has “the mouth that prohibited,” not just migo, then I admit that she is believed. That is essentially the picture. Everything else is details that aren’t important.

[Speaker C] Earlier you gave an example that “Rabbi Yehoshua admits” is about the husband—“the mouth that prohibited.”

[Rabbi Michael Abraham] No, no—he admits regarding the woman. Because all I did was bring an example. But everything Rabbi Yehoshua says is that the woman is not believed. If she were to have “the mouth that prohibited,” then she would be believed. Right? Basically, from the context it’s clear that’s what he means to say. All right? And he brings an example from possession of land because there, because the same dispute that exists here exists there as well. This is a dispute in the legal rules of claims and counterclaims, in Choshen Mishpat. It doesn’t matter whether it’s ketubah law or possession of land. Here we have a case of a definite claim against a doubtful one extracting from a possessor. The claimant with the definite claim has either migo, or “the mouth that prohibited,” or nothing. Those are the three cases. Whether the dispute is over a ketubah or over land, what difference does it make? It’s the same dispute. All right? That’s the discussion. And now the rules are as follows—and again I’ll summarize. According to Rabban Gamliel there are three cases, all right? The plaintiff—the plaintiff making the definite claim—has either “the mouth that prohibited,” or a migo, or nothing; he has only the definite claim. So this is how it goes: according to Rabban Gamliel, he is believed always. The woman or the person is always believed. Wait, so according to Rabban Gamliel she is—

[Speaker D] always believed because a definite claim against a doubtful one can extract? Definite against doubtful.

[Rabbi Michael Abraham] If it’s definite against doubtful, then it can extract. Therefore you don’t need migo, and you don’t need “the mouth that prohibited,” and you don’t need anything. Always believed. According to Rabbi Yehoshua, the claimant is believed only if he has “the mouth that prohibited.” If he has a migo, he is not believed, and of course if he has neither migo nor “the mouth that prohibited,” he is not believed. Only if he has “the mouth that prohibited.”

[Speaker E] Together with the definite claim? “The mouth that prohibited” together with the definite claim, or by itself?

[Rabbi Michael Abraham] Yes, yes. I’m talking only about definite versus doubtful. The practical law’s position: he is believed also with a migo; he doesn’t need “the mouth that prohibited.”

[Speaker E] Believed also with a migo?

[Rabbi Michael Abraham] Without a migo he is not believed; with a migo he is believed, and of course “the mouth that prohibited” too.

[Speaker C] So it’s only with migo? Yes.

[Rabbi Michael Abraham] Either migo or “the mouth that prohibited” and above, yes. Without migo, no. That’s basically the story, okay? That’s the point.

[Speaker C] Believed, believed ordinarily, believed with migo, and believed with “the mouth that prohibited.”

[Rabbi Michael Abraham] Exactly. Exactly. Exactly. All right? Therefore it’s true that the law in Rabbi Yehoshua’s Mishnah speaks about possession of land, but as far as I’m concerned I’m learning here the law for litigation over a ketubah: the question whether the woman has “the mouth that prohibited,” whether she has a migo, or whether she has no migo. That’s what the dispute is about, and there are three positions as to where the line is drawn. Either in all three she is believed, or only with “the mouth that prohibited” is she believed, or migo alone is enough—if migo is enough. All right? Okay, so let’s stop here. Thank you very much. Now, this is the next project. How are we going to pass this on?

[Speaker B] To whom did you say it’s being passed on?