Ketubot, Chapter 2, Lesson 5
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- The dispute between Rabban Gamliel and Rabbi Yehoshua over the ketubah: definite claim vs. uncertain claim, migo, and the Jewish law
- Moving to the opening clause of the Mishnah at the beginning of chapter two: definite claim vs. definite claim without migo
- The closing clause about land: “Rabbi Yehoshua agrees” and “the mouth that forbade is the mouth that permitted”
- Page 16a: “After all, this is migo and that is migo” and the distinction of “there is no slaughtered ox before you”
- Rashi’s approach: “the mouth that forbade” as a migo of “he could have remained silent,” and Rabbi Yehoshua’s rejection of migo
- Tosafot’s approach: “the mouth that forbade” even when there is a claimant, and a migo of “it never happened”
- Why “the mouth that forbade” is stronger than migo: explanatory frameworks and implications
Summary
General Overview
The lecture places the dispute between Rabban Gamliel and Rabbi Yehoshua in the Mishnayot at the beginning of tractate Ketubot around the question of whether a woman is believed in order to extract payment of her ketubah, and frames the picture along the axis of definite claim versus uncertain claim, migo, and the status of current possession. The explanation in the Talmud on 12–13 produces three positions: Rabban Gamliel believes the woman even without migo because a definite claim against an uncertain claim can justify extraction, Rabbi Yehoshua does not believe her even with migo because one does not extract from one in possession, and in practical Jewish law Rav Nachman’s view is accepted, that her credibility depends on migo. From there the discussion moves to the Mishnah at the beginning of chapter two, where the opening clause is a case of definite claim versus definite claim without migo, and therefore everyone agrees the woman is not believed, while the closing clause deals with the mouth that forbade is the mouth that permitted in land cases, where Rabbi Yehoshua agrees. The Talmud on page 16 clarifies why this kind of migo is stronger than an ordinary migo through the distinction between “there is no slaughtered ox before you” and “here is a slaughtered ox before you,” and from there develops the readings of Rashi and Tosafot and their implications for the nature of the mouth that forbade and for why it has greater force.
The dispute between Rabban Gamliel and Rabbi Yehoshua over the ketubah: definite claim vs. uncertain claim, migo, and the Jewish law
The Mishnah on page 12 presents a woman who claims, “After you betrothed me, I was raped,” and therefore wants the two-hundred-zuz ketubah on the grounds of “your field has been flooded,” while the husband argues uncertainly that she entered marriage no longer a virgin and therefore deserves only one hundred, or that she committed consensual adultery. The dispute appears to be a confrontation over whether a definite claim against an uncertain claim can extract payment, where the husband is in possession and does not know, and Rabban Gamliel accepts the definite claim as enough to extract, while Rabbi Yehoshua rejects extraction from one in possession even when he makes only an uncertain claim. Later it becomes clear that in the Mishnah’s case the woman has a migo, because she could have claimed, “I am one whose hymen was ruptured by wood,” which is a better claim because it does not prohibit her to a priest. That returns the topic to the question of migo for extraction, which is disputed by Tosafot and Nachmanides. On page 13 the Talmud concludes that Rabban Gamliel and Rabbi Yehoshua disagree “from one extreme to the other,” both when there is migo and when there is none, and Rav Nachman creates the practical halakhic ruling as a third position: the woman is believed when there is migo and is not believed when there is no migo, even though this is “like neither one” of the two tanna’im.
Moving to the opening clause of the Mishnah at the beginning of chapter two: definite claim vs. definite claim without migo
In the opening clause of the Mishnah at the beginning of chapter two, the dispute is not about what happened to the woman but about what was written in the ketubah itself, so this is a case of definite claim versus definite claim, because the husband too knows the content of the ketubah just as the woman does. In a case of definite claim versus definite claim, when the husband is in possession and there is no migo, the rule applies that “the burden of proof is on the one who seeks to extract from another,” and the woman has no power to extract. The point is presented as agreed upon by both Rabban Gamliel and Rabbi Yehoshua, because all of Rabban Gamliel’s novelty was said only regarding definite claim against uncertain claim. The theoretical possibility of definite claim versus definite claim with migo is described as a case that would return us to the dispute between Tosafot and Nachmanides over whether one says migo for extraction, but in the Mishnah itself the woman has no migo because the claim is not about her status but about the wording of the ketubah.
The closing clause about land: “Rabbi Yehoshua agrees” and “the mouth that forbade is the mouth that permitted”
The closing clause presents a case of presumption of ownership over land: “This field belonged to your father, and I bought it from him,” in which “Rabbi Yehoshua agrees.” This is explained as a natural continuation of the Mishnayot of the first chapter: the disputes of Rabban Gamliel and Rabbi Yehoshua, followed by Rabbi Yehoshua’s concession in a case of the mouth that forbade is the mouth that permitted. The claim that there is no such scenario of the mouth that forbade in ketubah law explains why the concession is stated through land and not through ketubah, because the discussion is understood as part of the laws of claims and counterclaims rather than as a specifically ketubah-related issue. It is established that the mouth that forbade works at least where the one in possession makes an uncertain claim, and that uncertainty stands in the background of the question how this fits with Rabbi Yehoshua’s position that ordinary migo does not help.
Page 16a: “After all, this is migo and that is migo” and the distinction of “there is no slaughtered ox before you”
The Talmud asks why, if the mouth that forbade is also defined as a kind of migo, Rabbi Yehoshua agrees there even though he does not accept ordinary migo, and answers: “Here there is no slaughtered ox before you; there, here is a slaughtered ox before you.” The example is explained through slaughtering an ox: when there is an openly visible “slaughtered ox,” the dispute is only about who is responsible, and therefore this is ordinary migo; but when there is no information at all about any slaughter until the claimant himself reveals it, his speech is the very source of the claim, and that is called the mouth that forbade. The distinction is presented as the foundation for why a migo of the type called the mouth that forbade is seen as stronger than an ordinary migo.
Rashi’s approach: “the mouth that forbade” as a migo of “he could have remained silent,” and Rabbi Yehoshua’s rejection of migo
Rashi explains that in the land case, “there is no slaughtered ox before you” means that if the possessor had remained silent, there would have been no challengers at all, and therefore the very statement “it belonged to your father” creates the basis for the claim. Rashi explains that in the virginity claim, there is a “slaughtered ox before you,” because the absence of virginity is the datum brought to court, and in such a case, even though there is a better alternative claim—“I am one whose hymen was ruptured by wood”—we do not say migo because perhaps “it did not occur to her,” or perhaps “she is being crafty.” From here a sharp reading is developed according to which Rabbi Yehoshua does not accept the logic of why would I lie that underlies migo at all, and only in the mouth that forbade is there no room for the problems of “she didn’t think of it” or “she is being crafty,” because the alternative is simple silence and then the whole case would never have arisen. Rashi on the Mishnah itself defines it as: “This one does not know that it belonged to his father except from this man’s own mouth, and the mouth that forbade is the mouth that permitted,” and therefore for Rashi the mouth that forbade exists specifically where the entire possibility of the claim is born from the defendant’s own statement, so that the parallel claimant to the husband on page 12 is by definition only making an uncertain claim.
Tosafot’s approach: “the mouth that forbade” even when there is a claimant, and a migo of “it never belonged to your father at all”
Tosafot understand from the commentary of the Kuntras that the mouth that forbade applies only when no one is claiming against him, and he is believed with a migo that he could have remained silent, but they reject this because the closing clause, “and if there are witnesses,” implies that specifically witnesses destroy the credibility, not the mere existence of a claimant. Tosafot establish that even when the other party comes and claims against him, the possessor is believed with a migo that he could have said: it never belonged to your father at all, and they also bring proof from the Talmud’s suggestion, “Then let it teach: this field was yours,” which shows that the discussion need not be limited to a case where the claimant had no prior knowledge at all of the connection. According to Tosafot, the distinction of “slaughtered ox before you” is explained this way: in virginity claims, the factual situation—“she has no virginity”—blocks the option of saying “I am a virgin,” so even alternative claims do not generate credibility; whereas in the land case, “there is no slaughtered ox before you” means that the court has no indication obligating recognition of the claimant’s connection until the possessor himself admits that it belonged to his father. The comparison is formulated so that, according to Rashi, the speech creates the claimant’s very right to sue, while according to Tosafot, the speech creates the connection in the eyes of the court even if the claimant himself already knew of it beforehand.
Why “the mouth that forbade” is stronger than migo: explanatory frameworks and implications
The mouth that forbade is presented as a mechanism stronger than ordinary migo because it functions as a more powerful form of “why would I lie,” and sometimes even as a situation in which “I could simply have remained silent” and there would have been no case at all. On the level of the force of a legal claim, it grants the status of possession more sharply than ordinary migo does. Possible implications are discussed for the practical halakhic view, in which the difference between migo and the mouth that forbade may be relevant mainly in situations of definite claim versus definite claim, where migo is a disputed case of migo for extraction, while the mouth that forbade may help even there. Two further directions are hinted at, presenting the mouth that forbade not as an upgraded migo but as an independent mechanism: one formulated as a power created by the defendant’s own speech that cannot be used against him, and one formulated as a kind of either way argument, that you cannot accept only half of his testimony solely to his detriment. The continuation of the analysis is postponed to the next lecture.
Full Transcript
[Rabbi Michael Abraham] Last time we began the topic at the beginning of chapter two,
[Speaker B] Yes,
[Rabbi Michael Abraham] basically it was background for the discussion of the mouth that forbade. We saw there—I’m summarizing where we stand—remind me of your name? Eyal, Eyal. We saw there the dispute between Rabban Gamliel and Rabbi Yehoshua in the Mishnah on page 12. When there’s litigation over the ketubah and the woman claims, “After you betrothed me, I was raped,” so really, “your field has been flooded,” and she wants the ketubah payment of two hundred, while the husband says that she in fact entered marriage already not a virgin and therefore she only gets one hundred, or that she committed consensual adultery. So Rabban Gamliel and Rabbi Yehoshua disagree. On the face of it, the dispute seems to be over the question whether we say that a definite claim against an uncertain claim can extract payment. The assumption there is that the husband is making an uncertain claim, because the husband doesn’t know what really happened with the woman; only she herself knows. She makes a definite claim, and the one in possession here is the husband. So since the woman is making a definite claim, Rabban Gamliel says she is believed to extract from the husband, and Rabbi Yehoshua says no, because you can’t extract from someone in possession on the basis of a claim. Even if the one in possession is making an uncertain claim, according to Rabbi Yehoshua you still can’t extract from him on the basis of a claim. After that we saw there’s another Mishnah that talks about a claim of “my hymen was ruptured by wood,” and in the end it became clear to us that in the situation of the first Mishnah on page 12 the woman has a migo. When she says, “After you betrothed me, I was raped,” she also could have said, “I am one whose hymen was ruptured by wood.” Why is that a better claim? “Ruptured by wood”? Because then she isn’t prohibited to a priest, whereas with the claim “After you betrothed me, I was raped,” she is prohibited to a priest. So because of that, she has a migo. Now that complicates things a bit, because now in the picture we have the woman’s definite claim against the husband’s uncertain claim, and the woman also has a migo.
[Speaker B] A definite claim plus a migo.
[Rabbi Michael Abraham] And the question of migo for extraction—we talked about this, that there’s a dispute between Tosafot and Nachmanides whether we say migo for extraction or not. The common view is that we do not say migo for extraction. Nachmanides may say that we do, at least in the situation of “two people holding a cloak,” and I said maybe that’s a special case, but on the basic level it’s a dispute among the medieval authorities. And now that brings us back to the discussion of the Mishnah on page 12, because the question is whether the dispute between Rabban Gamliel and Rabbi Yehoshua exists only where there is a migo, or whether the dispute is broader. Now this we saw in the Talmud on page 13 after the second Mishnah, where the Talmud says the following: basically Rabban Gamliel and Rabbi Yehoshua disagree from one extreme to the other. Rabban Gamliel says the woman is believed whether she has a migo or whether she does not have a migo. Why? Because a definite claim against an uncertain claim for extraction always works. Without migo, with migo—it doesn’t matter. Rabbi Yehoshua says that with no migo and with migo, the woman is not believed, because you cannot extract from one in possession, and one who makes an uncertain claim is still in possession. And the fact that she has a migo—whether it’s because this is migo for extraction, or—we’ll soon see—maybe because Rabbi Yehoshua doesn’t accept the whole idea of migo at all. We’ll still see that. In any case, the dispute between Rabbi Yehoshua and Rabban Gamliel runs from one extreme to the other, both when there is migo and when there is no migo. But the Talmud on the first Mishnah on page 12 begins with a difficulty. It asks: after all, there is a dispute among the amora’im whether in definite-versus-uncertain, the definite claim is stronger for extraction—obviously, whether the definite claim is stronger—or whether the definite claim is not stronger. Practically, we rule that the definite claim is not stronger. Definite versus uncertain—the definite claim is stronger when no one is in possession, but when someone is in possession, the definite claim can’t extract from the uncertain claim. So the Talmud asks about Rabban Gamliel: how can that be? About Rabban Gamliel—how can that be? Rabban Gamliel believes the woman even though this is definite versus uncertain for extraction, but practically that doesn’t work. The Talmud answers: here she has a migo. She could have said, “I am one whose hymen was ruptured by wood.” That’s why it works. We talked about the fact that, simply from the Talmud, if you connect the two sugyot on pages 13 and 12, it seems that this is not an argument within Rabban Gamliel’s own opinion. Rabban Gamliel himself disagrees and says the woman is believed even when she has no migo, because he really holds that definite versus uncertain does work for extraction. In that sense, he doesn’t hold like the practical halakhic ruling. He says definite versus uncertain works for extraction, so even without migo the woman is believed. We, who rule practically that definite versus uncertain does not work for extraction, and on the other hand rule like Rabban Gamliel that the woman is believed in the dispute over the ketubah—the Talmud says that the practical halakhic position can be reconciled because here there is a migo. So it comes out that there are three positions here. Rabban Gamliel holds that the woman is believed whether she has a migo or whether she doesn’t. Rabbi Yehoshua holds that the woman is not believed whether she has a migo or whether she doesn’t. Practically, we rule that the woman is believed when… she has a migo, and is not believed when she does not have a migo.
[Speaker B] That’s Rav Nachman.
[Rabbi Michael Abraham] Exactly, that’s Rav Nachman. And I noted that Rav Nachman is “like neither one”; basically he comes out as neither Rabbi Yehoshua nor Rabban Gamliel. And about that I wrote in the second-to-last column on my website—whoever happened to see it—I brought this as an example. Not the second-to-last—the column from today, the latest column.
[Speaker D] Just a question—maybe it’s not so important—you ignored Rabbi Yoḥanan ben Nuri. He has a position; he doesn’t go along with this whole system here.
[Rabbi Michael Abraham] Yoḥanan ben Nuri, yes,
[Speaker D] where you bring in majority, in the matter of the majority of virgins being married? Which majority? He talks about majority, about the issue of the majority of the town, two majorities—no, no, no, no,
[Rabbi Michael Abraham] Don’t drag me into all those passages about the two majorities.
[Speaker D] But those passages—that’s where you took the two sides.
[Rabbi Michael Abraham] Those are the two sides that remain in the end,
[Speaker D] or Rabbi Yehoshua, those are—
[Rabbi Michael Abraham] those are the two sides that remain in the conclusion. I’m not getting into two majorities now; that’s a separate topic. No two majorities and no nothing—nobody knows anything in town. We’re asking, in an isolated situation, what’s the law? So there are the three opinions I said here. Okay? Leave those side branches aside for the moment. Yes. This is only background for our topic; I’m not now going into learning chapter one. So those are the three positions. That is when the woman makes a definite claim and the husband makes an uncertain claim. More than that, I said that the woman also has a presumption based on her physical status. And for some reason it seems that people kind of ignore that point. We’ll come back to that issue—it does come up there in chapter one. Shlomo Asaf?
[Speaker B] What? Shlomo Asaf.
[Speaker D] Asaf, ah.
[Rabbi Michael Abraham] The presumption based on physical status will come up later, but for now I’m just saying it’s also here in the picture; for the moment I’m leaving it aside. Okay? So basically we have three positions regarding definite versus uncertain for extraction. What happens if here it were definite versus definite? Let’s work it out a bit. Suppose the husband also made a definite claim. In what situation does that happen? In the situation of our Mishnah, at the beginning of chapter two. What happens in our Mishnah? In the Mishnah on page 12 the dispute is over what happened to the woman—was she raped, was she ruptured by wood, before betrothal, after betrothal. The husband can’t know such a thing, so obviously he makes an uncertain claim, right? That’s why it’s definite versus uncertain. In our case, what’s the dispute in the Mishnah?
[Speaker B] What was written in the ketubah?
[Rabbi Michael Abraham] What was written in the ketubah? The husband knows what was written in the ketubah exactly as the woman does. In our Mishnah we’re dealing with definite versus definite, not definite versus uncertain. We’ll still get to this whole story, and then we’ll discuss how it fits with the Talmud there, but in our Mishnah it’s plainly definite versus definite. The husband says that in the ketubah it said one hundred, and he doesn’t know whether the woman was a virgin or not, of course—he can’t know—but that doesn’t matter. The woman told him whatever she told him, and that’s what was written in the ketubah—that he does know. He claims this was… after all, we no longer have the ketubah now; the dispute is what was written in the ketubah. Now on this matter, the status of the husband and the woman is identical. They both know the truth. So really, here it’s definite versus definite. So let’s just work it out in advance—we’ll still get to it in our topic, but let’s work it out ahead. What happens in definite versus definite according to all these positions? Up till now we’ve spoken only about definite versus uncertain, without migo and with migo, according to Rabban Gamliel—
[Speaker B] and according to Rabbi Yehoshua and according to the practical halakhic view.
[Rabbi Michael Abraham] What happens when you have definite versus definite?
[Speaker E] He’s in possession.
[Speaker B] So in definite versus—
[Rabbi Michael Abraham] definite, when someone is in possession, once there is no migo, there’s nothing to discuss, right?
[Speaker B] Nobody extracts from one in possession on the basis of a definite claim when the one in possession is also making a definite claim.
[Rabbi Michael Abraham] There is complete balance there.
[Speaker B] Right. “The burden of proof is on the one who seeks to extract from another”—that’s the rule, “the burden of proof is on the one who seeks to extract from another.”
[Rabbi Michael Abraham] Okay? So therefore in definite versus definite, when there’s no migo, obviously it doesn’t help—whether according to Rabbi Yehoshua or according to Rabban Gamliel, right? Everything Rabban Gamliel says is only in definite versus uncertain. What happens when there is migo? That also won’t help. Why? Because migo can upset the balance, but to extract? So what do you say? What is the Jewish law? One in possession against migo. We said migo for extraction—that there’s a dispute between Tosafot and Nachmanides over whether one says migo for extraction, right? If it’s definite versus definite and the woman has a migo, then basically she’s coming to extract from the husband by force of migo. Tosafot says we do not say migo for extraction, so according to Tosafot that won’t help. Nachmanides says migo for extraction does work, so according to Nachmanides it would help, right? Only in our sugya, in our Mishnah, where this is definite versus definite, there is no migo. Why is there no migo? Because in the Mishnah on page 12 the woman says, “After I became betrothed, I was raped.” She could have said, “I was ruptured by wood,” right? and remained permitted to a priest. Here the dispute is over what was written in the ketubah. What migo? What… what migo could she have? “Ruptured by wood”? What does ruptured by wood have to do with anything? We’re not talking about what she is; we’re talking about what was written in the ketubah. Okay? Therefore the point isn’t relevant. If it said one hundred in the ketubah, whether she was ruptured by wood or not ruptured by wood, she gets one hundred, right? So here there is no migo. Fine. There are two differences between our sugya at the beginning—here it’s definite versus definite, and there it’s definite versus uncertain. Second, here the woman has no migo. Okay? So there’s no problem. When the woman has no migo and we’re dealing with definite versus definite, whether according to Rabban Gamliel or Rabbi Yehoshua, certainly the woman is not believed. That’s the opening clause of our Mishnah. We’ll still get tangled up in it later, but on the face of it everything is simple. Okay? If there were migo in some other situation—it doesn’t matter—say the husband were making a definite claim that she was not raped after he betrothed her, never mind. He saw her the whole time. He makes a definite claim: she was not raped at all from the betrothal onward. Fine? Just hypothetically. Now the woman has a migo. She could have said, “I was ruptured by wood.” So what happens there? So in definite versus definite, when there is migo, that’s the dispute between Tosafot and Nachmanides whether one says migo for extraction or doesn’t say migo for extraction. Okay? That’s the picture so far. Again, this is the dispute between Tosafot and Nachmanides, of course, within the view of Rabban Gamliel. Because within Rabbi Yehoshua’s view, migo doesn’t help even to extract from someone making an uncertain claim. So if the one in possession makes a definite claim, obviously the migo won’t succeed in extracting from him. That does not depend on the dispute of Tosafot and Nachmanides. Tosafot and Nachmanides disagree only according to the practical halakhic position, where we rule like Rabban Gamliel—or like Rav Nachman—that migo helps to extract from an uncertain claimant. Okay? About that one can discuss, yes, but what if he says a definite claim? On that there is the dispute between Tosafot and Nachmanides whether migo helps for extraction. Okay? But obviously according to Rabbi Yehoshua the discussion doesn’t even begin. According to Rabbi Yehoshua, migo doesn’t help even when the one in possession says “I’m not sure,” so if the one in possession says a definite claim, certainly migo won’t help to extract from him. Okay? Fine, that’s the summary of the picture so far. Now, our Mishnah moves on to discuss a case of presumption of ownership over land, right? If he says, “This field belonged to your father, and I bought it from him,” and in that Rabbi Yehoshua agrees. And we saw in the previous lecture that according to the Talmud’s conclusion, Rabbi Yehoshua here is really conceding to Rabban Gamliel in their dispute from page 12—not in the dispute over the opening clause of our Mishnah. In the opening clause of our Mishnah there is no dispute; that is agreed. Because the opening clause of our Mishnah deals with definite versus definite without migo. In definite versus definite without migo, the woman is not believed—that is agreed. There is no dispute about that, not for Rabban Gamliel and not for Rabbi Yehoshua. The “Rabbi Yehoshua agrees” in the closing clause of our Mishnah refers to their dispute in the Mishnayot of the first chapter. If you look at the sequence of Mishnayot without the Talmud in between constantly interrupting the matter, it looks more natural. There is one Mishnah with a dispute between Rabban Gamliel and Rabbi Yehoshua, another Mishnah with a dispute between Rabban Gamliel and Rabbi Yehoshua, a note: in definite versus definite there is no dispute, and then Rabbi Yehoshua agrees with Rabban Gamliel in a case of the mouth that forbade. Okay? So as far as the sequence of Mishnayot goes, that’s fine. It’s only when you see it in the Gemara and they’re in different chapters—chapter one and chapter two—that it somehow seems: what does this have to do with anything? Why does the closing clause of this Mishnah go back to dealing with earlier Mishnayot? But that’s the sequence.
[Speaker B] He didn’t bring an example of ketubah for “the mouth that forbade” because he couldn’t find one.
[Rabbi Michael Abraham] Right? Why didn’t he bring an example from ketubah when he wanted to concede in a case of “the mouth that forbade”? Seemingly the whole litigation here is litigation over the ketubah, the whole dispute between Rabban Gamliel and Rabbi Yehoshua. So why don’t they bring a ketubah case where he concedes because of “the mouth that forbade”? He goes to fields. What?
[Speaker B] Because he couldn’t find one?
[Rabbi Michael Abraham] No, because there is no such case. Okay? There is no such case. Where would you have “the mouth that forbade” here? What, the woman is the one who gives the husband the power to sue? How does that happen? What, she admitted it? Only through her, only because she admits that the husband was married to her? Without her we don’t know that the husband was married? There is no such case. Right? So Rabbi Yehoshua really means to concede in a ketubah-type case where there is “the mouth that forbade.” It’s just that in the context of ketubah there is no such thing. So he states it with a different illustration. But that doesn’t matter, because the discussion is not about ketubah and not about land. The discussion is whether migo or “the mouth that forbade” helps to extract from one in possession who makes an uncertain claim. That’s the discussion. I don’t care whether it’s ketubah or land; this is the law of claimant and defendant. And in the law of claimant and defendant, I don’t care whether it’s ketubah or land. So the rule is basically that Rabbi Yehoshua concedes that “the mouth that forbade” does help. “The mouth that forbade” helps at least when the one in possession makes an uncertain claim. What happens with “the mouth that forbade” when the one in possession makes a definite claim—we’ll still see. Okay? But for now, when the one in possession makes an uncertain claim, and at least yes, when the one in possession makes an uncertain claim and the woman has “the mouth that forbade,” or the holder of the field has “the mouth that forbade,” then that certainly helps, and in that even Rabbi Yehoshua agrees.
[Speaker B] And is “the mouth that forbade” also migo? Maybe. That’s what we’ll discuss today. Is “the mouth that forbade” stronger than migo?
[Rabbi Michael Abraham] Simply yes. The proof is that Rabbi Yehoshua agrees, even though with ordinary migo he doesn’t agree. Why is it stronger? Is it a kind of migo? We’ll discuss it, we’ll discuss it. That’s our topic today. So that’s the summary of the matter. Now, if Rabbi Yehoshua really disputes ordinary migo—migo doesn’t help to extract from one in possession who makes an uncertain claim—but with “the mouth that forbade” he agrees, that means “the mouth that forbade” is stronger. Right? “The mouth that forbade” is stronger. Again, it could be that according to Rabban Gamliel, who also accepts ordinary migo, there won’t be a practical difference, because ordinary migo already works, so of course “the mouth that forbade” will work and there will be no difference. But at least in Rabbi Yehoshua we see that he holds ordinary migo doesn’t work, while “the mouth that forbade” does work. So we see that “the mouth that forbade” is stronger. Whether that has practical implications or not—it will have practical implications also according to halakhah and also according to Rabban Gamliel—but I’m saying that’s not important right now. It’s clear from the sugya that “the mouth that forbade” works; it is stronger than migo. And now the question is basically why. So our Talmud on page 16a says—it itself asks this: “After all, this is migo and that is migo; what is the difference between this migo and that migo?” If “the mouth that forbade” is a kind of migo, and this too is a kind of—he says, “This field belonged to your father and I bought it from him.” I could of course have denied that the field belonged to your father, and therefore this is basically a kind of migo. Right. So if Rabbi Yehoshua disagrees in ordinary migo, that it doesn’t help to extract from one making an uncertain claim, why in this migo does he not disagree? Why here does he agree? After all, this is migo and that is migo. So now, to your earlier questions, from the Talmud here it seems that “the mouth that forbade” is a kind of migo. Right? The Talmud itself says so. What?
[Speaker F] What is the claim of “the mouth that forbade”?
[Rabbi Michael Abraham] I didn’t understand—what—
[Speaker F] What exactly is “the mouth that forbade”?
[Rabbi Michael Abraham] “The mouth that forbade” is like “This field belonged to your father and I bought it from him.”
[Speaker F] Okay, how is that “the mouth that forbade”?
[Rabbi Michael Abraham] Because I’m basically the one who appointed you as having presumptive standing. Only through me do we know that your father was the original owner. So all your power to sue comes from me. But we’ll still discuss it; we’ll define it. Okay? So the Talmud’s formulation basically assumes that there is no difference between “the mouth that forbade”—or not that there is no difference, but that both are migo. And since that’s the case, someone who doesn’t accept the first migo—why should he accept the second migo? That’s what it asks. So the Talmud answers: “Here there is no slaughtered ox before you; there, here is a slaughtered ox before you.” A field. The difference is whether there is a slaughtered ox before you or not. What does that mean, a slaughtered ox before you? Yes, it’s a metaphorical expression. What does it mean? If there is a slaughtered ox before me, and now a dispute begins over who slaughtered the ox, that is migo; it is not “the mouth that forbade.” Why? I could have said that yes, I slaughtered it, but I did so justifiably, fine? Because it threatened my property, I don’t know—something like that. And I also could have said, “I didn’t slaughter it at all—what do you want from me?” There is a slaughtered ox here, everyone sees it, but nobody knows whether I slaughtered it. So I admit that I slaughtered it, only I say I did it justifiably because that ox threatened to gore, I don’t know, my lamb. Fine? So I had to defend myself; I slaughtered the ox. Fine? So here I have a migo: I could have said, “I didn’t slaughter it at all—what do you want from me?” But that is ordinary migo and not “the mouth that forbade.” Why? Because there is a slaughtered ox here. What happens if there is no slaughtered ox here at all? I come to a person and say to him: listen, your ox was slaughtered—you should know that. You don’t know it, but your ox was slaughtered. I slaughtered it. Why? Because it threatened my lamb. Right?
[Speaker B] That’s “the mouth that forbade.”
[Rabbi Michael Abraham] That’s “the mouth that forbade,” not migo. Why? Because here there isn’t any slaughtered ox before us at all. I am the source of the information that there was any slaughtered ox here in the first place. And if I hadn’t said anything, you wouldn’t have known the whole story at all, you wouldn’t have known to sue me, you wouldn’t have known anything. That is called “the mouth that forbade.” The Talmud says: a migo of this type, which we call “the mouth that forbade,” is stronger than ordinary migo. Even Rabbi Yehoshua, who with ordinary migo says it does not help to extract from one in possession who makes an uncertain claim, agrees that “the mouth that forbade” does help. That’s the explanation the Talmud offers. Now let’s go a little deeper into the meaning of this explanation.
[Speaker E] “The mouth that forbade” is—only if it’s—only from him did he know it.
[Rabbi Michael Abraham] But if, for example—let’s read Rashi and Tosafot, in a moment we’ll see—
[Speaker E] that someone else who isn’t connected to him comes and tells him afterward—
[Rabbi Michael Abraham] that the ox was slaughtered, but doesn’t tell him who slaughtered it—so that’s a dispute between Rashi and Tosafot; we’ll see it in a moment. So the Talmud explained here the difference between migo and “the mouth that forbade.” Simply speaking, it assumes that this too is migo; it’s just a stronger migo. Yes, intuition says it’s a stronger migo: if your whole claim against me is based on me, only because of me can you sue me. Your entire claim is based on me. So that’s a much stronger migo. I want to look for a moment at Rashi. Look at Rashi on the words “Here.” So Rashi says: “Here, regarding a field, there is no slaughtered ox before you that would cause the owner to think to sue over who slaughtered it.” Meaning, if this man had kept quiet, there would have been no challengers. If I had kept quiet, you the claimant would not even have known to sue me. “Therefore, were it not absolutely clear to him that he bought it from him, he would not have said to him, ‘It belonged to your father.’ Therefore we say migo.” So that kind of migo we really do say, because it is a very strong migo, since your whole ability to sue me is based on me. Only because of me can you sue me; your whole claim is based on me. So it’s a much stronger migo. What? Where’s Rashi?
[Speaker B] On the words “Here,” below, almost the second from the bottom.
[Rabbi Michael Abraham] “But regarding the case where he did not find virginity in her”—that’s about the field, right? In the case of land, you would not even know to sue if I had not said that the field belonged to your father. But regarding virginity, where this is ordinary migo, not “the mouth that forbade”—why is it only ordinary migo and not “the mouth that forbade”? Because in the matter of virginity, there is a slaughtered ox before you. “The fact that he did not find virginity in her is what led him to come to court. And although she has the ability to answer with a better claim”—she could say, “I am one whose hymen was ruptured by wood”—“we do not say migo, because perhaps it did not occur to her, or alternatively she is being crafty.” Rashi says: in a situation where there is a slaughtered ox before me, there is migo, but it is not “the mouth that forbade.” A migo like that Rabbi Yehoshua does not accept at all. It is a weak migo. Why? Because perhaps she simply did not think of the better claim, or perhaps she is being crafty and actually says the weaker claim in order to be believed on the basis of migo. Exactly the two difficulties we already encountered when we learned migo, right? The first difficulty is the one raised by the Netivot, who asked: how can unlearned people have migo? An unlearned person does not know that there is another, better claim. So how can you believe him in the weaker claim on the ground that if he had wanted to lie he would have made that other claim? He didn’t make it because he didn’t know about it. Right? So we said there is no unlearned person standing before a court, because people clarify things. They go and consult before they come to court, right? That’s what we answered there. Rashi says: according to Rabbi Yehoshua, why does Rabbi Yehoshua disagree with Rabban Gamliel and say that migo does not help to extract? Because of the Netivot’s argument. Maybe he didn’t think of the better claim. How do you know—maybe yes, maybe no? You can’t prove anything from that. Another argument is the difficulty we dealt with at the end of the second lecture on migo, where I said that migo really undercuts the claim on which it sits. Because once you grant a person credibility on the weaker claim by virtue of the migo he has, it may be that then that claim is no longer weak. Because people believe it on the basis of migo. So now when the person says, “Look, why did I choose this claim? After all, it’s weaker. If I had wanted to lie, I would have chosen that one,” maybe you chose this claim precisely because you knew it had migo, and then this claim is no longer weak.
[Speaker E] But that still doesn’t help him. It’s like he doesn’t gain more than from the better claim.
[Rabbi Michael Abraham] He also doesn’t lose. Right. Fine, so what? Then there is no migo. The two claims are equal. So what do you want to say—that because you made this one and not that one, therefore you’re believed? The two claims are equal. We explained that there, but I’m saying that was the second difficulty we asked, the Ayelet HaShachar asks it too, and others. So Rashi says that this itself is what troubles Rabbi Yehoshua, and therefore Rabbi Yehoshua says that migo does not help to extract—either because the person didn’t think of the alternative claim, or because the person is being crafty and makes the weaker claim so that they’ll believe him through migo. Two difficulties in the logic of migo. That’s what Rashi writes here. And notice that this is a major novelty. If I had to explain where Rabbi Yehoshua disagrees with Rabban Gamliel—why he claims that a definite claim does not help to extract, via migo, from one in possession who makes an uncertain claim—I would have said maybe he holds that we do not say migo for extraction. He says that even extracting from someone in possession who makes an uncertain claim is considered extraction, so migo for extraction we do not say. Rashi goes much further. Rashi claims that Rabbi Yehoshua does not accept the logic of migo.
[Speaker D] You’ve knocked down all of migo now.
[Rabbi Michael Abraham] Right. According to Rashi, Rabbi Yehoshua doesn’t recognize the existence of migo. In the whole Torah? That’s how it seems. He says—the questions he brings here are questions about the very idea of migo. It’s not a specific question here because this is extraction, because that one is in possession—it has nothing to do with that. He says the whole idea of migo is not accepted by Rabbi Yehoshua, because migo doesn’t make sense.
[Speaker D] No, but “the mouth that forbade” is his strongest migo.
[Rabbi Michael Abraham] Wait, wait. Migo—I’m talking about migo, not “the mouth that forbade.” So Rashi says that according to Rabbi Yehoshua there is no migo at all. Okay? But what does he have, yes? Why does he agree with “the mouth that forbade”? Because in “the mouth that forbade” he has it. Why does he have it?
[Speaker B] Because there’s no slaughtered ox before you.
[Rabbi Michael Abraham] Yes, but what’s the idea? What’s it based on? You can say several things about what the idea is. You could say that it’s a stronger migo. Right. You ask me: with that other migo, maybe I wouldn’t have thought of an alternative claim at all. To think simply to keep my mouth shut—of course I thought of that; no sophistication is needed for that. Not to come and say that this field belonged to his father—that anybody understands. To make some other legal claim that would be stronger, you need to be a lawyer, you need to understand. But here, simply not to keep talking and not to shoot yourself in the foot—there is no question here of “maybe I didn’t think of the alternative claim.” And that is the reasoning. And then maybe even as for craftiness—it doesn’t pay here. What, to scheme and get yourself tangled up? Just don’t say anything and no problem would arise at all. So the argument of craftiness also doesn’t arise here. So from Rashi here one could say that Rashi basically sees “the mouth that forbade” as a migo. “The mouth that forbade” is migo. It’s just that the difficulties Rabbi Yehoshua finds in the logic of migo in the ordinary situation, where there is a slaughtered ox before you, do not exist when there is no slaughtered ox before you—in “the mouth that forbade.”
[Speaker B] So basically according to Rashi, “the mouth that forbade” is the power of silence. What?
[Rabbi Michael Abraham] According to Rashi it’s not the right to remain silent; it’s the power of silence. The power of silence. No, the right to remain silent is something else entirely. The power of silence. Yes. The power to remain silent gives me the power, basically, to be believed.
[Speaker B] Basically all of “the mouth that forbade.”
[Rabbi Michael Abraham] Yes. So now what basically—
[Speaker B] That’s a strong claim. What basically—this isn’t even a claim at all; the claim of silence is a claim.
[Rabbi Michael Abraham] Yes, it’s not a claim. The discussion would never arise at all. I wouldn’t have had to claim anything. So Rashi’s claim is very far-reaching. Meaning, first of all he says migo is “why would I lie.” That’s his first point, right? Because against the idea of force-of-claim, Rashi’s two difficulties with the mechanism of migo don’t exist, right? “Maybe he didn’t think of an alternative claim”—that’s not relevant. Force-of-claim is formal. It has nothing to do with the idea of “why would I lie,” that if I wanted to lie, I would have lied better, right? Rashi’s objections assume that migo means “why would I lie.” Second, Rashi says Rabbi Yehoshua does not accept the idea of “why would I lie.” According to Rabbi Yehoshua there is no migo at all anywhere in the Talmud, anywhere in Jewish law. Not specifically here, not because of extraction or anything like that. There is no such thing. That’s what Rashi says. Third point: why does Rabbi Yehoshua accept “the mouth that forbade”? What is the relative advantage of “the mouth that forbade” over migo? Because when the “why would I lie” logic appears in “the mouth that forbade,” the two objections that apply to ordinary migo don’t apply. In other words, Rashi sees “the mouth that forbade” too as a kind of “why would I lie.” It’s just a kind of “why would I lie” to which the two objections against migo do not apply. Notice—we’ve learned a lot from this Rashi. It looks innocent, but there are a lot of things here, and every one of them can be disputed. You could dispute that migo is “why would I lie”—there is also force-of-claim—and in Rashi it seems not, or at least you have to arrive at “why would I lie” as well. It’s not entirely clear what exactly Rashi says. That’s the first assumption. Second assumption: Rabbi Yehoshua completely disagrees with the very idea of migo. He has no “why would I lie,” because migo is illogical—maybe the person is being crafty, maybe he didn’t think of it. He has objections to the logic of migo, of “why would I lie.” That too can be disputed. It could be that Rabbi Yehoshua only says specifically here that migo does not help to extract from one in possession who makes an uncertain claim. He does not deny the logic of migo in general; he simply says migo doesn’t help in this situation because it is migo for extraction, for example. According to Tosafot at least, you could say that. According to Nachmanides it’s actually harder, because according to Nachmanides, migo for extraction does work. So if Rabbi Yehoshua accepted the idea of migo, I would expect it to work here for extraction, right? So according to Nachmanides you can indeed understand why Rashi needed to say that according to Rabbi Yehoshua there is no law of migo at all. But according to Tosafot, who say we do not say migo for extraction, one could have said that Rabbi Yehoshua disagrees with Rabban Gamliel only because this is coming to extract. He does not disagree in principle with the idea of migo. But Rashi doesn’t go that way.
[Speaker F] Could you explain that Nachmanides kind of defines migo only as “the mouth that forbade”? Because you said that according to Nachmanides you’d have to explain Rabbi Yehoshua as though… that this is the definition of migo.
[Rabbi Michael Abraham] That he disagrees with the whole idea of migo altogether. That this isn’t migo at all, that there is no… there is no such thing as migo according to Rabbi Yehoshua. Migo doesn’t make sense. He has objections to the logic of migo. “The mouth that forbade” there is. Why? “The mouth that forbade” is the only migo that exists.
[Speaker F] So when Nachmanides says that migo is for extraction, he’s talking about “the mouth that forbade.”
[Rabbi Michael Abraham] No, but that’s in Rabbi Yehoshua. Nachmanides is talking about the Jewish law according to Rabban Gamliel, and we rule in practice like Rabban Gamliel. Here the whole discussion is about Rabbi Yehoshua. Because Rabbi Yehoshua concedes—the Mishnah says that Rabbi Yehoshua concedes. We’re dealing only with Rabbi Yehoshua’s view; you have to be careful here not to mix things up. All the discussions we said earlier all remain correct; that’s unrelated, that’s for practical Jewish law. But here, in Rabbi Yehoshua’s view, where migo doesn’t help, “the mouth that prohibited is the mouth that permitted” does help. That’s Rashi’s third novelty: that “the mouth that prohibited” is also a kind of migo, but it’s a kind of migo to which the two objections to the logic of migo don’t apply. Okay? And therefore Rabbi Yehoshua accepts it. Or in other words, for Rabbi Yehoshua the only migo that exists is just “the mouth that prohibited.” There’s no difference between “the mouth that prohibited” and migo according to Rabbi Yehoshua. In the world there is only “the mouth that prohibited”; there’s no such thing as migo. Meaning, it doesn’t work according to Rabbi Yehoshua. That’s what comes out in Rashi’s approach. You also see in Rashi that Rashi’s understanding of “the mouth that prohibited” is this: it’s a situation where, if I hadn’t spoken, you couldn’t have come to claim against me at all. The power of silence. Right? In other words, this is a migo of “if he wanted, he could have remained silent.” A migo that I could have stayed silent—“if he wanted, he could have remained silent”—that’s what is called “the mouth that prohibited” according to Rashi. All right? In a moment we’ll see that Tosafot disagrees with Rashi on this point.
[Speaker D] It’s like—I just removed all the confusion here. My speaking cut through the whole tangle here. Yes.
[Rabbi Michael Abraham] Without me, you wouldn’t have known that this field had belonged to your father. They make some kind of forced interpretation here. The forced interpretation is that the person himself doesn’t know that the field had belonged to his father; only because I told him does he know it, and now he comes and claims against me. Okay? A forced reading. In principle, you could have understood it differently. He knows it was his father’s. True, I could have denied it and said, “Nothing like that ever happened,” and I would have won—no problem. But you can’t say that his claim is based on my statement. Rashi is giving a forced reading here.
[Speaker D] It’s hard to say that in this case, because then he could have brought witnesses.
[Rabbi Michael Abraham] He can’t bring witnesses; he has no witnesses. And if there are no witnesses, then we haven’t done anything. The Mishnah says at the end: if there were witnesses that it had belonged to his father, then there is no “mouth that prohibited.” Fine, but we’re talking about a case where there are no witnesses.
[Speaker C] If it really means that the defendant admits that he didn’t know it was his father’s—that the plaintiff admits that he didn’t know it was his father’s—
[Rabbi Michael Abraham] He admits it; he didn’t know. It’s simply a fact that he didn’t know.
[Speaker C] And if he claims, “Yes, I knew, yes—”
[Rabbi Michael Abraham] “I knew”? On what basis is he coming to claim? He only comes to claim after I said, “This belonged to your father.”
[Speaker C] And who says that he knew it beforehand?
[Rabbi Michael Abraham] I don’t know how significant that will be. If you didn’t claim on your own, but only after I came and said, “This belonged to your father,” then the assumption is apparently that you didn’t know. Otherwise you would have claimed before I came and tripped myself up or shot myself in the foot.
[Speaker C] Anyone could come and admit before the other one—
[Rabbi Michael Abraham] Fine, maybe. Usually a person has witnesses, so he doesn’t need your admissions—
[Speaker D] —or a document. Suppose he came to religious court and a rumor had spread somewhere that it had belonged to his father, a rumor had spread, but there still aren’t witnesses.
[Rabbi Michael Abraham] Then he knows because of the rumor, so again, according to Rashi that isn’t “the mouth that prohibited.” Because the person can claim even without my statement. According to Rashi, the definition of “the mouth that prohibited” is—
[Speaker D] —that—
[Rabbi Michael Abraham] —that your whole ability to make a claim comes from me. You have to understand—let me jump ahead a bit—Tosafot’s view is not like that. Tosafot’s view is that “the mouth that prohibited” applies even when you know that it belonged to your father, and you come and claim against me and say, “This belonged to my father, and now it’s mine, so what are you doing on this land?” And I say, “It belonged to your father, and I bought it from him.” According to Tosafot, that is “the mouth that prohibited,” even though the person knew how to claim even without me. We’ll define in a moment why that is “the mouth that prohibited,” but according to Tosafot that too is “the mouth that prohibited.” According to Rashi, such a case is regular migo, not “the mouth that prohibited.” Because what happens in that case? In that case, do I have the option of being silent? No—where? In Tosafot’s case. A person comes who knows it was his father’s and says, “What are you doing on the land? It belongs to my father.”
[Speaker B] He has to tell him, “Nothing like that ever happened.”
[Rabbi Michael Abraham] He has to say either “Nothing like that ever happened” or “It belonged to your father and I bought it from him”—you have to respond. As we saw in Maimonides, Laws of Claims and Responses, that when someone claims against me, the religious court doesn’t accept “He’s a liar” and I go home. Say it—spell out your claim, say exactly what happened here. “It belonged to your father but I bought it from him”—you have to answer. Therefore according to Tosafot, “the mouth that prohibited” is not a migo of “if he wanted, he could have remained silent,” because this is a situation where you don’t have the option of remaining silent. According to Rashi, we’re talking about a much stronger situation: I really could have remained silent and no lawsuit would have taken place. According to Tosafot, the case proceeds anyway; I just could have waved you away. All right? That’s called “the mouth that prohibited.” According to Rashi, “the mouth that prohibited” is only in a place where it’s very strong. Tosafot’s scenario, according to Rashi, is migo, not “the mouth that prohibited.” All right? Fine. So now I’m going back to Rashi’s approach; I just jumped ahead in order to sharpen Rashi’s view. I’m going back to Rashi. So according to Rashi, “the mouth that prohibited” is “if he wanted, he could have remained silent”; without me there is no claim at all. And Rabbi Yehoshua accepts it—the only migo Rabbi Yehoshua accepts is “the mouth that prohibited,” because the objections Rashi has against migo don’t apply to it. And indeed, Rashi on the Mishnah—look at Rashi on the Mishnah at the end of the Mishnah, “the mouth that prohibited” at the beginning of the page: “This one does not know that it belonged to his father except from this man’s statement, and the one who prohibited is the one who permitted.” Fine? Meaning, everything you know—that it belonged to your father—is only thanks to me. Tosafot disagrees with that, but Rashi is consistent, as we saw in the previous Rashi; also in Rashi on the Mishnah he says the same thing. Rashi’s view—and that’s also how other medieval authorities (Rishonim) cite him—is that “the mouth that prohibited” exists only when your ability to claim is based on what I said. But if I had remained silent, there would have been no claim here at all—not that I would have come out innocent, that’s Tosafot—but there would have been no claim at all if I had remained silent. Fine? That’s “if he wanted, he could have remained silent.” That is “the mouth that prohibited” according to Rashi.
Now why—now we need to understand one more point. According to Rashi on the Mishnah, when Rabbi Yehoshua concedes and says, “This field belonged to your father, and I bought it from him”—
[Speaker B] he—
[Rabbi Michael Abraham] —is referring to the Mishnah on page 12, right? The dispute between Rabbi Yehoshua and Rabban Gamliel in the Mishnah on page 12, which is about migo. In “the mouth that prohibited,” Rabbi Yehoshua concedes that it works. What kind of case is this? Does the plaintiff claim out of uncertainty, or claim… the original holder, right? In this case, by the way, notice: the one in possession is the plaintiff. Do you see that? That’s the pathology of real estate. Right, because possession regarding land goes by the original holder, not by whoever is physically sitting on the land. Therefore, in land law, unlike ordinary monetary law, it can happen that the plaintiff is the one in possession. If I’m sitting on land and he sues me, “Get off my land,” the plaintiff is the one in possession, not the defendant. Usually with movable property, the one in possession is the defendant. Here it’s not like that. The plaintiff is the one in possession—the original holder. Okay? So now—how do I know that he is making a claim of uncertainty? Maybe he knew it was his father’s, and then he is making a definite claim. So then what is the similarity to the Mishnah on page 12, where you say that Rabbi Yehoshua concedes?
[Speaker D] So the plaintiff is the one in possession, the plaintiff is in possession and he wants to wave off the other one who’s claiming from him.
[Rabbi Michael Abraham] No, no—what do you mean, “the other one who’s claiming”?
[Speaker D] He comes to claim the field from him.
[Rabbi Michael Abraham] You’re sitting on the land, and I come and say, “What are you doing on my land? It belonged to my father.” Then you answer me, “True, it belonged to your father, but I bought it from him,” okay? Now I’m claiming against you. The question is whether I knew that it had belonged to my father or not. Rashi says no. My whole claim against you exists only because you said that the field had belonged to my father. Oh, it belonged to my father? Then what are you doing here? When you say you bought it, prove that you bought it. Fine? I’m now attacking you based on what you yourself said. That’s Rashi’s view. Now I’m asking: how does the Gemara know—after all, the Mishnah says Rabbi Yehoshua concedes in this scenario, meaning that this scenario is like the one on page 12 except that here it is “the mouth that prohibited” and not migo. Right? But that’s not true. In the scenario on page 12, the husband claims uncertainty. Here the one in possession, who parallels the husband there—the one in possession is the original holder—does he claim uncertainty? Who told you? Maybe he claims definitely. Who told you we’re talking about a claim of uncertainty? Why assume it’s the same case?
[Speaker C] According to Rashi, only if he claims uncertainty is this “the mouth”—
[Rabbi Michael Abraham] Right. According to Rashi, that makes sense, because according to Rashi otherwise it would not be “the mouth that prohibited.” We are talking here about a situation where the person who is claiming doesn’t himself know that it belonged to his father.
[Speaker B] So by definition he’s uncertain.
[Rabbi Michael Abraham] So by definition he is making a claim of uncertainty. He becomes definite only because I revealed to him that it belonged to his father—but that is not considered a definite claim; it is considered a claim of uncertainty. Okay? According to Rashi, even more than that: “the mouth that prohibited” essentially always operates against uncertainty. There is no such thing as “the mouth that prohibited” against a definite claim. Because if it’s against a definite claim, then it is not “the mouth that prohibited.” “The mouth that prohibited” always works against a claim of uncertainty. Okay?
[Speaker F] If he knows, then what is “definite”? Again. Meaning, Rashi assumes that we are talking here about “the mouth that prohibited”—the Mishnah says that.
[Rabbi Michael Abraham] The Mishnah says we are talking about “the mouth that prohibited.”
[Speaker F] No, but Rashi defines “the mouth that prohibited” in a certain way, and then he says—and then you ask, who told you that’s the case? Because otherwise it wouldn’t be “the mouth that prohibited.”
[Rabbi Michael Abraham] So maybe we shouldn’t explain it as “the mouth that prohibited”? Let me present it the other way around and it’ll sound less funny. Rashi is basically saying this: I read the Mishnah straightforwardly. Let’s read it like Tosafot, fine? But then no—he came on his own initiative. Since he came on his own initiative, what room is there to compare it to the Mishnah on page 12?
[Speaker B] That he’s definite. That’s a difficulty on Tosafot—
[Rabbi Michael Abraham] I’m now asking, in Rashi’s name, a question on Tosafot. Tosafot—according to your view, how do you read the Mishnah? How does the Mishnah know that here the one in possession is claiming uncertainty, which is the case on page 12? Rabbi Yehoshua is supposed to concede in the same case, except that instead of migo there is “the mouth that prohibited,” but it’s supposed to be the same case. And here it’s definite against definite—who told you this is definite and uncertainty? Rashi says: here is the proof that I’m right. It must be that the Mishnah understands that if we are dealing with “the mouth that prohibited,” then obviously he apparently doesn’t know; he’s claiming uncertainty. And then indeed it makes sense to compare this to the Mishnah on page 12. That is Rashi’s proof that the definition of “the mouth that prohibited” is always a situation where you don’t know how to claim without me. Because if it were otherwise, you couldn’t understand how the Mishnah speaks about the same kind of case.
[Speaker F] If you were uncertain… but if Tosafot still manages to answer that, then we go back again to Rashi.
[Rabbi Michael Abraham] That’s always the question. But I’m saying: I don’t yet know how Tosafot answers it, but first of all, Rashi. Rashi says that according to Tosafot, you can’t read the Mishnah.
[Speaker F] But Rashi’s argument depends on the certainty that Tosafot has no answer, because if Tosafot has an answer, then Rashi is interpreting in a random way specifically like this. No, no, no.
[Rabbi Michael Abraham] No, no, no. So I’ll explain, and I’ll say it again: no. According to what you’re saying, there could never be any disagreement among the medieval authorities (Rishonim). Because what do you mean—after all, you assume the other side has an answer, but if he has an answer, then why are you challenging him? Why do you choose your own position? After all, according to his position too there is an answer. The point is that I don’t accept his answer. It seems implausible to me. When Tosafot gives his answer, then of course Tosafot will say that the answer seems reasonable to him, but Rashi apparently thinks that answer is not reasonable. Therefore one must say that the Mishnah is dealing with a case where the plaintiff does not know that it belonged to his father. Ah—apparently that is the definition of “the mouth that prohibited.” Fine, that’s how the issue has to unfold according to Rashi. And according to Tosafot we’ll try to understand how he reads the Mishnah—that will be the difficulty in Tosafot’s approach. Fine? By the way, Tosafot’s approach is the view of most of the medieval authorities (Rishonim). Rashi’s approach is the minority view.
But now in the Mishnah itself, look at the wording of the Mishnah. What does the wording of the Mishnah say? It doesn’t say at all that the person sued him.
[Speaker E] Right, “one who says to another.”
[Rabbi Michael Abraham] “One who says to another: ‘This field belonged to your father, and I bought it from him.’” It sounds like I’m the one opening the discussion, not him. I say, “This field belonged to your father, and I bought it from him.” Now you suddenly remember? Wait, wait, wait—then prove that you bought it. Who says so? Right? Meaning, from the wording of the Mishnah too, it sounds like Rashi. The plain sense of the Mishnah sounds like Rashi. Okay? Tosafot will apparently have to say that the Mishnah is abbreviated. The intention is obvious—that he sued him and so on; we don’t need to describe the whole chain of events. They only come to explain what “the mouth that prohibited” means. “The mouth that prohibited” is when I admit that it belonged to your father and that I bought it from him. Without telling the whole introduction—that he sued him and he came to religious court and he said—all that is there, but they shortened the route. That’s according to Tosafot. According to Rashi, the Mishnah’s wording is precise. The Mishnah is exacting: it says that you—I opened the discussion, he did not open the discussion; he doesn’t know how to open the discussion without me. Okay?
[Speaker E] No, but you can read it like Tosafot. Huh? You can read it as if it’s cut off.
[Rabbi Michael Abraham] Just introductory material.
[Speaker E] No, it’s like from the beginning of that. “A woman who became widowed or divorced”—she says, “I became widowed,” and he says no—
[Rabbi Michael Abraham] And then—
[Speaker E] There’s like a distinction whether—
[Rabbi Michael Abraham] —if there are witnesses then she is believed, and if—
[Speaker E] No, and then: “Rabbi Yehoshua concedes in the case of one who says to another”—what, he said it after the other one sued him?
[Rabbi Michael Abraham] Yes, but that’s not that same claim—it’s a different case, so it’s even stranger. Because if it had been a continuation of the previous case, I’d understand. If the woman had said, “This field…” then “Rabbi Yehoshua concedes.” But you’re not talking about the first clause at all; you’re talking about land, not a marriage settlement. So at the very least I would have expected you to sketch the case. After all, it’s a new case, a case that the previous Mishnayot also don’t discuss. So it’s a completely different case.
[Speaker E] Yes, but still it’s possible, still possible.
[Rabbi Michael Abraham] Yes, I’m saying—and I did say that—according to Tosafot you can say it, but it’s strained. The plain sense of the Mishnah, I think, is definitely more like Rashi. That’s how it seems to me. The medieval authorities (Rishonim), most of the medieval authorities… Ah, in the latter clause.
[Speaker D] Yes, that’s the move. He connected it to the latter clause.
[Rabbi Michael Abraham] There’s nothing to connect; these are two different cases. No, from—
[Speaker E] —that. Meaning, from the first clause you can understand the latter clause.
[Rabbi Michael Abraham] Yes, but in the first clause it’s a different case, so that’s strange. You could say it’s abbreviated not because of the first clause, but simply abbreviated—there was legal give-and-take, I don’t need to spell out all the legal give-and-take for you. I also didn’t tell you what the plaintiff’s name was and what the defendant’s name was. I’m just explaining the point where you see what “the mouth that prohibited” is, where Rabbi Yehoshua concedes. It’s okay, it’s okay. I’m saying, the simplest straightforward reading is like Rashi, but it’s really not such a big deal. Meaning, Tosafot’s approach can also be read into it.
So that is basically Rashi’s approach to what “the mouth that prohibited” is and to explaining Rabbi Yehoshua’s position. Fine? Maybe one more comment. According to Rashi, if this migo is “if he wanted, he could have remained silent,” then it isn’t even entirely migo in the ordinary sense. Because migo means: I could have made a different claim and won. Here I could not have made a different claim—the lawsuit would never have opened.
[Speaker D] No, your claim isn’t a claim at all.
[Rabbi Michael Abraham] If I had remained silent, according to Rashi there would have been no claim at all; we would never have reached religious court. So it’s not that I would have made some other claim. The entire chain of this legal proceeding is because I opened my mouth. So this isn’t migo in the ordinary sense that if I wanted to lie, I would have lied better. But it is still true that the logic of “why would I lie?” is present here. Meaning, if I had wanted to lie, I would have stayed silent. In other words, the logic of migo exists here too. But it isn’t migo in the ordinary sense where the alternative claim could have won for me and I chose the weaker claim. Here the alternative “claim” is not a claim at all; I simply could have remained silent, there would have been no trial, and I wouldn’t have had to claim anything. It’s not that I’m transferring force from a weaker claim to a stronger claim—weak claim and all the rest of that discussion, that’s unrelated. I’m not transferring force from anything to anything. There, I had no force; there simply was no discussion. Fine? Wait, with Tosafot we’ll get there in a moment. So that’s according to Rashi—that’s what I’m discussing, okay?
Now then, that is basically Rashi’s approach. In Tosafot’s approach, look at Tosafot, s.v. “And Rabbi Yehoshua concedes,” on the Mishnah at the end of page a. “And Rabbi Yehoshua concedes in the case of one who says, ‘This field…,’ that he is believed—from the explanation of the commentary it seems”—fine?
[Speaker B] Where is the opening phrase?
[Rabbi Michael Abraham] “And Rabbi Yehoshua concedes,” on the Mishnah.
[Speaker B] At the end of the page.
[Rabbi Michael Abraham] The end of the previous page? Yes, the end of page b, sorry, page b, the end of page b, the first page of the sugya. “From the explanation of the commentary it seems that specifically when no one is claiming against him is he believed, on the basis of a migo that if he wanted he could have remained silent. But if someone is claiming against him, he is not believed.” Right—we saw in Rashi that “the mouth that prohibited” is basically a migo of “if he wanted, he could have remained silent”; that is the definition of “the mouth that prohibited.” And I’ll translate again: “if he wanted, he could have remained silent” means that I could have remained silent. When can you remain silent? Only when there is no claim. There is no way to remain silent when there is a claim, no matter how weak it may be. So that is Rashi’s approach.
But Tosafot says: “And this does not seem correct, for the latter clause teaches: ‘And if there are witnesses,’ etc., which implies that specifically if there are witnesses that it was his father’s, he is not believed. But if there are no witnesses, even though the other party is claiming against him, he is believed, because if he wanted he could have said: ‘It was never your father’s at all.’ Since it did not teach: ‘If the other party claims against him, he is not believed.’” What is the proof? Migo?
[Speaker B] What? It implies migo? Migo is something different from another migo.
[Rabbi Michael Abraham] Wait—what is Tosafot’s proof against Rashi? Witnesses—if—
[Speaker B] If there are witnesses. Now what?
[Rabbi Michael Abraham] What is the proof?
[Speaker E] That if there are witnesses, then there really was a claim, and in general there was a claim from the start. So what? If—
[Rabbi Michael Abraham] If there are witnesses, then indeed there is no “mouth that prohibited.” The Mishnah says at the end that if there are witnesses that the field belonged to his father, then he is not believed, right? He has no “mouth that prohibited.” What is Tosafot’s proof from that section of the Mishnah for his dispute with Rashi?
[Speaker D] That it remains migo even if there are no witnesses. If there are no witnesses, then that too remains migo.
[Rabbi Michael Abraham] Not “even if”—only if there are no witnesses is it migo.
[Speaker D] So what’s the proof?
[Rabbi Michael Abraham] Right, so what?
[Speaker D] That’s the question.
[Rabbi Michael Abraham] What proof—what is Tosafot asking against Rashi from there? Tosafot claims that according to Rashi, the latter clause of the Mishnah is difficult, right? He challenges Rashi; he proves against Rashi from the latter clause of the Mishnah. What is the proof? According to Rashi, if you want to bring a case where there is no “mouth that prohibited,” okay—what case do you need to bring? That he is silent.
[Speaker B] That there is no “mouth that prohibited”—
[Speaker E] That the other party is claiming.
[Rabbi Michael Abraham] That the other party is claiming! Not that there are witnesses! You don’t need to go so far as witnesses. It’s enough that the person claimed on his own initiative, even if he brought no witnesses; even then it would be migo and not “the mouth that prohibited,” and Rabbi Yehoshua would not concede. So why does the Mishnah need to go all the way to such an extreme case in order to illustrate a case where there is no “mouth that prohibited”—that if there are witnesses that it was his father’s, then there is no “mouth that prohibited”? Only if there are witnesses? It would be enough if he claimed on his own initiative for it not to be “the mouth that prohibited.” You don’t need to go to such an extreme case.
[Speaker E] Basically Tosafot is saying that he is believed in every case, even if the other party is claiming.
[Rabbi Michael Abraham] Therefore, says Tosafot—exactly—“the mouth that prohibited” applies even if the other party is claiming. Therefore the Mishnah says: when is it not “the mouth that prohibited”? Only when there are witnesses, because then indeed you don’t have “the mouth that prohibited,” since I could not have said, “Nothing like that ever happened”—there are witnesses. Fine? But according to Rashi, the very fact that the other party is claiming already makes it no longer “the mouth that prohibited.” Only if the other party could not have claimed at all without me is it “the mouth that prohibited.” So according to Rashi, it’s difficult why the Mishnah at the end had to bring the third, most extreme case in order to illustrate a case without “the mouth that prohibited.” It could have brought a case where the person claimed on his own initiative—that too is not “the mouth that prohibited.” Okay? That is Tosafot’s approach. I still haven’t explained why, according to Tosafot, this is “the mouth that prohibited.”
[Speaker D] But why do you say it’s “the mouth that prohibited”? It’s regular migo.
[Rabbi Michael Abraham] Wait, I said I’d explain. You asked that, and I said I’d explain—in just a moment. “And the Gemara too asks”—he brings another proof against Rashi from the Gemara. “And the Gemara too asks: ‘Then let it teach: This field was yours’—which implies that here too we are dealing with a case where the other party is claiming against him.” Right? The Gemara asks: after all, he could have said—it doesn’t matter, that’s later on—he could have said, “This field was yours,” not “your father’s.” If it was his, then it implies that the person is claiming on his own initiative, because after all, he knows that the field is his. Maybe he didn’t know that the field was his father’s except through me, but if I can raise the claim that the field was his, then clearly we are talking about a situation where the person is indeed claiming on his own. Because the fact that the field is his—he knows that. So that’s definite against—yes, that’s another proof against Rashi. Clearly we are talking about a case where the person does know that the field was his father’s. Fine? “But if no one is claiming against him, it doesn’t make sense to say ‘it was yours,’ because presumably he himself knows that.” Yes, that’s obvious.
So Tosafot says he has two proofs against Rashi. Truthfully, Tosafot’s proof against Rashi is a strong proof. Meaning, why does the Mishnah really have to go all the way to witnesses in order to illustrate a case without “the mouth that prohibited”?
The Beit HaLevi wants to claim—and in doing so he greatly narrows the dispute—that everything Rashi said here is only in Rabbi Yehoshua’s view: that “the mouth that prohibited” is only where there is no claim. But in practical Jewish law, where we rule like Rabban Gamliel, then “the mouth that prohibited” is like Tosafot, even where there is a claim. And when the Mishnah brought the case of “if there are witnesses,” it meant to state a law agreed upon by everyone, and that is why it said it also according to Rabban Gamliel. But truly, according to Rabbi Yehoshua, one could have said: if the other party claims against him, Rabbi Yehoshua disagrees—but that is only Rabbi Yehoshua. When the Mishnah wants to say something that applies in practice, “Rabbi Yehoshua concedes in the case of one who says, ‘This field belonged to your father, and I bought it from him’” is a statement about Rabbi Yehoshua. But “if there were witnesses,” that is already a statement according to everyone, both Rabbi Yehoshua and Rabban Gamliel. And here Rashi would agree with Tosafot that “the mouth that prohibited” applies even when the other party is claiming, not only when he isn’t. Maybe. I don’t know. It’s a bit strained in Rashi, but indeed the proof from the Mishnah is not a simple one. I don’t know how to answer Rashi from that proof. On the other hand, I think the usual assumption in Rashi is that this is really his position even in practical law too: that “the mouth that prohibited” exists only where there is no claim without him. How does he answer the proof from the Mishnah? I don’t know.
[Speaker F] According to Rabbi Yehoshua?
[Rabbi Michael Abraham] That’s what Rashi rules. The Beit HaLevi claims that everything Rashi says here is only in Rabbi Yehoshua’s opinion. The accepted understanding in Rashi is that this is how he understands “the mouth that prohibited” regardless of Rabbi Yehoshua—even according to Rabban Gamliel. And then indeed it becomes a question: so why did the Mishnah need to go to an extreme case, as Tosafot objects? I don’t know a good answer to that. Okay. Maybe the Mishnah wanted to state an unmistakable case, a clear case—I don’t know. You can force it, but it’s a good proof.
Still, you know, there are proofs in Rashi’s favor. The wording of the Mishnah—“one who says: this field belonged to your father, and I bought it from him”—there is no claim at all from the other party, right? Another proof in Rashi’s favor, what I said earlier: when the Mishnah compares this case to the dispute of Rabban Gamliel and Rabbi Yehoshua on page 12, it assumes that the original holder is making a claim of uncertainty. How does it know that? According to Tosafot, if the person himself is claiming because he knows, then that is a definite claim. So why is it an uncertain claim? It’s a definite claim! So if it’s a definite claim, then according to Tosafot it’s not clear what Rabbi Yehoshua is conceding relative to the dispute there—it’s a different case. The dispute there deals with definite and uncertainty, and there Rabbi Yehoshua says that migo doesn’t help to extract from someone making a claim of uncertainty. He should have said instead that “the mouth that prohibited” helps to extract from someone making a claim of uncertainty, right? But here we’re not talking about someone making a claim of uncertainty; we’re talking about someone making a definite claim, if that’s so—according to Tosafot.
[Speaker B] I—
[Rabbi Michael Abraham] I’m saying it’s not so terrible. Why? Because even if here we are talking about someone making a definite claim, then it’s all the more so. If “the mouth that prohibited” helps to extract from someone making a definite claim, then certainly it helps against someone making a claim of uncertainty. Therefore when we say, “Rabbi Yehoshua concedes in the case of one who says, ‘This field belonged to your father, and I bought it from him’”—that it is “the mouth that prohibited,” and therefore he concedes—it doesn’t bother me that here the claim is definite. Because he concedes that even when the one in possession makes a definite claim, if there is “the mouth that prohibited” against him, it works. Then certainly, certainly in the case on page 12, where the one in possession says “uncertain,” if there were “the mouth that prohibited” against him, it would certainly work. So it’s not terrible. Maybe one could have remarked on it because still it isn’t the exact same case, but I’m saying that is not a strong difficulty on Tosafot. Fine?
Now I’m coming to the question you ran away from; I’m answering your question now.
[Speaker B] Now—
[Rabbi Michael Abraham] I’m getting to the question of why, according to Tosafot, this thing is in fact stronger than ordinary migo. According to Rashi we understand, right? We explained it earlier. According to Rashi, where your claim could not even have stood without my words, that is much stronger than “I could have lied with a better claim.” But according to Tosafot I could not have remained silent here. According to Tosafot this is not a migo of “if he wanted, he could have remained silent,” but if I put it in one phrase, it’s a migo of “nothing like that ever happened.”
[Speaker B] “Nothing like that ever happened.”
[Rabbi Michael Abraham] A migo of “nothing like that ever happened,” right. According to Tosafot you can’t remain silent because he is claiming against you, saying, “This belonged to my father and this land is mine.” You can’t remain silent. You can only say, “What are you talking about? It never belonged to your father. It’s mine,” and that’s all. Now once I say that, you are no longer the original holder, and you will have to bring proof to take the field from me, right? I would have won. But I would have won with a claim of “nothing like that ever happened,” not by silence, according to Tosafot. So if I have to define the dispute between Rashi and Tosafot about what “the mouth that prohibited” is: according to Rashi, “the mouth that prohibited” is a migo of “if he wanted, he could have remained silent”; according to Tosafot, “the mouth that prohibited” is a migo of “nothing like that ever happened.”
Now the big question: according to Rashi, I understand what advantage “the mouth that prohibited” has over migo.
[Speaker E] A migo of “nothing like that ever happened”? Yes. What does that mean?
[Rabbi Michael Abraham] He says, “This field belonged to your father, and I bought it from him.” I could have said, “It never belonged to your father at all.”
[Speaker E] And then there’s no original holder.
[Rabbi Michael Abraham] Yes, right, exactly. Now Tosafot says this is a stronger migo than ordinary migo, because this is “the mouth that prohibited.” The question is why, as you asked earlier. So here let’s look at Tosafot. Page b—no, not on page b, on page a, the second page. Yes. The opening phrase “There, the slaughtered ox is before you.” And this is really the question, right? The Gemara explains the difference between “the mouth that prohibited” and migo: “There, the slaughtered ox is before you; here, the slaughtered ox is not before you.” The question is how Tosafot understands the Gemara here. Right—that’s really the question. I’m translating your question, David. You asked: according to Tosafot, why is this not just ordinary migo? Why is it “the mouth that prohibited”? The Gemara itself explains: “There, the slaughtered ox is before you; here, the slaughtered ox is not before you.” How does Tosafot read that? That’s really the question, right? Because seemingly it’s the same thing. So let’s see Tosafot.
“There, the slaughtered ox is before you. The commentary explained that she claims: ‘I was violated before you betrothed me.’ And here, in the case of land, the slaughtered ox is not before you, because the other party is not claiming against him.” Right—that’s Rashi’s approach that we saw, where the other party isn’t claiming at all. That is “the slaughtered ox is not before you” according to Rashi. It’s completely clear what “the slaughtered ox is not before you” means, what “the mouth that prohibited” means.
“And Rabbenu Yitzchak explains that here too we are dealing with a case where the other party is claiming against him, as I explained,” like he explained in the previous Tosafot that we saw—that this too is “the mouth that prohibited.” He is claiming against him. “And this is the explanation: There, the slaughtered ox is before you, for she lacks virginity and cannot say, ‘I am a virgin,’ just as, in the case of a slaughtered ox, one cannot say, ‘It is alive.’ You can’t say the ox is alive. The ox is dead. It is before us. And therefore, whether she says, ‘I was violated after you betrothed me,’ or whether she says, ‘I was injured by wood while under your authority,’ she is not believed. Here, the slaughtered ox is not before you, and he is believed with a migo, because if he wanted he could have said, ‘It was never your father’s at all.’”
What is the explanation?
[Speaker F] Maybe because there’s no bodily presumption? What? Like, there’s a missing presumption of bodily status or something—
[Rabbi Michael Abraham] It’s not a question of presumption, but rather that the present situation is clear: she is no longer a virgin.
[Speaker F] Yes, so that’s—
[Rabbi Michael Abraham] So it’s not so much a question of presumption; rather, the current state is that there is a slaughtered ox before us. Meaning, it is clear and known to everyone that she is no longer a virgin. Not in the sense of what the previous presumption was. But how does Tosafot explain the other side—the land case? That part is clear. But that is the “there is a slaughtered ox before you.” How does he explain the case of “the slaughtered ox is not before you,” which is “the mouth that prohibited”? After all, it’s not like Rashi. Here there is a claim. So why isn’t it just ordinary migo? I could have said an alternative claim by which I would have won. And that’s just ordinary migo.
The answer, it seems to me, is this. I’ll formulate it this way because I’ll use it later. According to Rashi, “the mouth that prohibited” is a situation where you had no claim unless I spoke. We wouldn’t even be convening here at all. Okay? According to Tosafot, we would convene even without me, because he is claiming definitely, and I too would have to answer. I just could have answered, “Nothing like that ever happened.” What would happen if I answered, “Nothing like that ever happened”? The religious court would shut down the case right there.
[Speaker B] Because I’m the one in possession.
[Rabbi Michael Abraham] I’m the one in possession; you are not the original holder, right? You have no proof. “Nothing like that ever happened.” So the court convenes—not that it doesn’t convene, unlike Rashi. The court convenes because there is a claim here. But after it hears the defendant, it closes the door. That’s not the same as migo, because in migo the court convenes and has to issue a ruling. It’s just that if I make such-and-such a claim, I could have made another claim that would have persuaded the court, and it would rule in my favor. Here the court does not rule. Here the court closes the door and leaves, and leaves me there. According to Tosafot, that is “the mouth that prohibited.” In other words, what happens according to Rashi to the plaintiff happens according to Tosafot to the court. I’ll phrase it differently: the court has no indication at all that you have any connection to this land. No indication. According to Tosafot, you yourself know that even without me—you know that this field belonged to your father. You have that information. But we, as judges, do not have that information. I don’t know whose field this is. What do I have before me? Who are you anyway? Two litigants. What—what are you doing here? Do you have any connection to this land? “Sure, it belonged to my father.” Yes, and it also belonged to my grandmother. What connection do you have to the matter? You have no demonstrated monetary tie—to use the Gemara’s phrase at the beginning of tractate Bava Metzia. You have no proven connection to the property. You are making a claim. It’s like grabbing somebody on the street and saying, “Wait a second, the shirt you’re wearing is mine.” There is no indication. If you brought proof that it once belonged to you, then now a discussion could begin: did he buy it from you, did he steal it from you, or whatever. But if nobody knows that this shirt was ever yours—even though in fact, yes, you know it. But we, as judges, have no proven connection between you and the object under discussion.
[Speaker D] Why? I don’t understand why. The other one, the defendant, comes and says, “It belonged to your father.”
[Rabbi Michael Abraham] No, wait. By the defendant’s claim, he creates your connection to the property in the eyes of the court. Right. According to Rashi, what the defendant’s claim did was give you the information that enabled you to claim at all. According to Tosafot, you already had that information. But according to Tosafot, what happens to the plaintiff according to Rashi happens, in effect, to the court according to Tosafot. Because for the court there is no connection at all between this person and the land until the defendant comes and admits: “Right, the field belonged to your father and I bought it.” So I myself created your connection to the land that allows the court to sit in the first place. Right? Therefore this is “the mouth that prohibited.”
In ordinary migo—say if I said, I don’t know, “I repaid within the time limit,” with a migo that I could have said, “I repaid after the time limit.” Fine? There the court sits, and it is clear that you are the lender and I am the borrower, and the whole question is whether I repaid or didn’t repay. I could have said that I repaid after the time limit and I would have won, but it’s not that your connection to the money was created by what I said. Your connection to the money was created because you have a loan document or witnesses that you lent it. The court knows that there is money here that once belonged to you. The question is whether it was repaid or not repaid—that’s our dispute. Therefore there it is ordinary migo. Here the court doesn’t even know what you are doing in this case at all. What connection does he have to you? “This field belonged to my father from time immemorial.” What are you saying? Who said that? Do you have even the slightest shred of proof of that? Nothing. Only that the defendant admits it. Meaning, the defendant created your connection to the land in the eyes of the court—not from your perspective. In Rashi, what the defendant did was create the connection from your own perspective: you yourself didn’t know you had any connection to the land. According to Tosafot, you do know you have a connection to the land. But so what? You know it—what difference does that make? On the legal level, the question is what the court knows. After all, the court has to decide. And the court knows absolutely nothing about any connection between you and the land until the defendant admits that this land belonged to your father.
[Speaker D] When does it know? Maybe you can bring some proof.
[Rabbi Michael Abraham] Maybe—then bring it. Then bring it. What do you mean, “it knows”?
[Speaker D] I don’t know, bring it.
[Rabbi Michael Abraham] What do you mean, maybe you’ll bring proof? Maybe—bring it. If you bring it, we’ll sit and hear the case, no problem. But as long as you haven’t brought it, right now there is no proof. As long as you haven’t brought it, there is no proof whatsoever that you have any connection to the matter. I’m not even talking about proof that you’re right—that the land is actually yours now. There isn’t even the slightest shred of proof that it was ever yours, that there is any connection at all between you and the land, that you have standing here at all. Who says you have standing? Do you understand? That is “the mouth that prohibited” according to Tosafot.
That is why it’s not ordinary migo. In the case of someone who claims a debt from me, and I say, “I repaid within the time limit,” with a migo that I could have said, “I repaid after the time limit”—his standing is clear. He brought two witnesses that there was a loan here. There was a debt; he lent it; nobody can wave him away from here. He has a proven connection to the money. Now the question is whether I can show that I repaid or can’t show that I repaid, and then whether I pay or don’t pay. But there is no possibility on the table of waving him down all the stairs and closing the discussion. Here is a person with a proven connection to the money. Okay?
[Speaker D] So that is migo—
[Rabbi Michael Abraham] Therefore that is migo.
[Speaker D] Right, but then that’s unrelated.
[Rabbi Michael Abraham] But I said: if I paid, then I borrowed. That’s what I’m saying. So that’s the answer to the question you asked earlier. Therefore there it’s migo, and here according to Tosafot it’s “the mouth that prohibited is the mouth that permitted,” also according to Tosafot, not only according to Rashi. Okay? But I want to sharpen the comparison I’m making between Rashi and Tosafot, because it’ll be important for what follows. What Tosafot says, what Rashi explains regarding the claimant, Tosafot explains regarding the judges. Meaning, according to Rashi, the claimant himself has no connection at all to the money; he doesn’t even know that this money is connected to him until the defendant comes. Connected to him—not that it’s his; the defendant says it’s his. But the very connection, the fact that he even has anything to do with this money, that he can even make a claim, comes from the defendant. According to Tosafot, no—the information exists by you; you can make the claim even without me. But that’s you. The judges have no clue whatsoever about any connection between you and this money until the defendant says a word. Only thanks to the defendant can you even stand here. Not stand here to make a claim, but stand here without the court closing the case and going home. The court would have to close the case. If I hadn’t spoken, the court would close the case, it would say to the person, that’s it. It wouldn’t begin the case at all, right, exactly. He would sit down—you can’t stay silent—but he would sit, hear both sides, say: I have nothing to judge here, and I’m going home. Okay? That’s “the mouth that prohibited” according to Tosafot. Okay? That the court knows there’s a connection between you and the money—not that the person himself knows of the connection between himself and the money. The idea is the same idea: you are basically the father of the very possibility of conducting the case at all. You shot yourself in the foot; you created the possibility of attacking yourself. Okay? That’s called “the mouth that prohibited.” In migo that doesn’t exist. In migo I didn’t create the possibility of attacking me. I could have escaped, but I didn’t create the possibility of attacking me. I could have escaped the attack better. Okay? Therefore it’s migo and not “the mouth that prohibited.” That’s the difference. Fine.
Now another comment before I continue. Even according to Rabban Gamliel, in Jewish law, “the mouth that prohibited” is preferable to migo. In our context it doesn’t matter, because migo works to extract money in a case of certainty against uncertainty—migo works to extract, right? And therefore “the mouth that prohibited” certainly works to extract, so it makes no practical difference. Only according to Rabbi Yehoshua, who says that migo does not work, is there a practical difference in the fact that “the mouth that prohibited” is stronger, and in the case of “the mouth that prohibited” he agrees that it does work. But in Jewish law we do not rule like Rabbi Yehoshua. So the question is whether in Jewish law there is significance to the difference between “the mouth that prohibited” and migo. The answer is yes. First of all, in the introduction I spoke about certainty against certainty. What happens, for example, in our passage, in our Mishnah, in a case of certainty against certainty, where the dispute is over what was written in the ketubah? So I said that this is not a dispute between certainty and uncertainty, but between certainty and certainty, right? What happens if the woman has migo in such a case? In our case she has no migo, but if she did have migo in such a case…
[Speaker B] As it says in Ketubot, she didn’t have one.
[Rabbi Michael Abraham] Why? What dispute? Migo to extract. Right, there’s a dispute regarding migo used to extract, right? If it were “the mouth that prohibited,” it would apparently help. And that is already a practical consequence according to the halakhic ruling, not just according to Rabbi Yehoshua. In certainty versus uncertainty there is no consequence, according to Rabban Gamliel, to the difference between migo and “the mouth that prohibited,” because migo also works, so “the mouth that prohibited” certainly works, fine; the fact that “the mouth that prohibited” is stronger has no significance. But in certainty versus certainty, migo does not work because it is migo used to extract; according to Tosafot at least, it is migo used to extract, and migo does not work.
[Speaker B] “The mouth…”
[Rabbi Michael Abraham] …that prohibited, which is more than ordinary migo, “the mouth that prohibited,” which is stronger than migo, might help even in certainty against certainty. So that is the advantage of “the mouth that prohibited” over migo even according to the halakhic ruling, not only according to Rabbi Yehoshua. Okay, that’s what I want to say. And indeed several medieval authorities (Rishonim) and later authorities (Acharonim) say that “the mouth that prohibited” works to extract from someone in possession even with a claim of certainty. Of course according to Rashi there is no such thing as “the mouth that prohibited” against a claim of certainty, because by definition “the mouth that prohibited” is always against a claim of uncertainty, because without me you wouldn’t know, so you claim uncertainty. But according to Tosafot there is “the mouth that prohibited” against a claim of certainty. And “the mouth that prohibited” works against a claim of certainty. Okay? More than that—”the mouth that prohibited” may even work against witnesses. That’s what several medieval authorities (Rishonim) and several later authorities (Acharonim) write. No, but… no no no, “the mouth that prohibited” sometimes works even against witnesses.
[Speaker E] Why? But if there are witnesses…
[Rabbi Michael Abraham] If there are witnesses, then I don’t have “the mouth that prohibited”…
[Speaker B] No, if the doubt has fallen away…
[Speaker E] Witnesses to what?
[Rabbi Michael Abraham] If there are witnesses that two hundred was written in the ketubah. Fine. No, sorry, one hundred was written in the ketubah.
[Speaker E] No, but how is that connected?
[Rabbi Michael Abraham] There are witnesses that one hundred was written in the ketubah. Okay? Now I, the woman, have “the mouth that prohibited.”
[Speaker D] No,
[Speaker E] but what,
[Rabbi Michael Abraham] There’s no such situation, so we move to land cases, but in principle… In land cases, okay, in land cases there are witnesses that this land belongs to so-and-so, not that it belonged to his ancestors. They do not knock out my “the mouth that prohibited,” but they testify that he is right that it is his. Okay? And I have “the mouth that prohibited” against them. There are some medieval authorities (Rishonim) who claim that “the mouth that prohibited” works against witnesses. Strange. Yes. Okay. There is Tosafot in Bava Kamma 72, for example, and elsewhere, so that is of course an extraordinary advantage of “the mouth that prohibited” over migo. Okay? Migo does not work even against someone in possession according to Tosafot, certainly not against witnesses, but “the mouth that prohibited” sometimes works even against witnesses. We’ll encounter such a situation on page 18, I hope we’ll get there someday, about witnesses who say, “This is our handwriting, but we were coerced,” or “we were minors”—there we’ll encounter this issue. Okay?
[Speaker D] But here he wrote her ketubah as two hundred, and they bring witnesses that her ketubah was two hundred.
[Rabbi Michael Abraham] Well, that’s unrelated. There is no “the mouth that prohibited” there. “The mouth that prohibited” is in land cases; in ketubah there is no case of “the mouth that prohibited.”
[Speaker D] But why did he bring up this whole issue—just to prove something about “the mouth that prohibited,” that there’s some implication…
[Rabbi Michael Abraham] Not in the latter clause; in the first clause we are not talking about “the mouth that prohibited.” In the first clause we are talking about a litigation of certainty against certainty; there isn’t even migo—not only is there no “the mouth that prohibited,” there’s nothing. It’s just plain certainty against certainty, so much so that one could ask: so what’s the novelty? Obviously in certainty against certainty the woman should not be believed. We’ll see—the Talmud itself deals with this.
[Speaker D] And there’s another question.
[Rabbi Michael Abraham] What Rabbi…
[Speaker D] Yehoshua was doing by bringing land here in this situation.
[Rabbi Michael Abraham] I understand—that’s another question; it’s the same question. Because in ketubah there is no case of “the mouth that prohibited.” So if you want to say that he agrees that “the mouth that prohibited” works to extract from someone in possession, then you need to bring a case where that applies. The case is land; in ketubah there is no such case. That’s all. But it doesn’t matter; theoretically, even in ketubah, if there were a case of “the mouth that prohibited,” there too she would extract with “the mouth that prohibited.”
[Speaker D] I don’t think so. Is there some kind of situation, like… if he married her and she was injured by a blow and she didn’t tell him? The Talmud speaks about that earlier, from…
[Rabbi Michael Abraham] Presumably she didn’t tell him, so what… he claims… he says there was a ketubah, there is a ketubah, and it said two hundred there; it said one hundred there—that’s what I’m saying. Where is “the mouth that prohibited” here?
[Speaker B] What “the mouth that prohibited”?
[Rabbi Michael Abraham] Okay.
[Speaker C] In Nachmanides there’s the idea that someone in possession—migo turns him into the one in possession. So how does that help in land? Because someone in possession against the former owner is not… not the former owner.
[Rabbi Michael Abraham] No, it turns him into the former owner. Meaning, the force of the former owner becomes… the one considered in possession regarding land is the former owner. Now when I have migo, then the one in possession will not be the former owner but me.
[Speaker C] So I’ll be considered the former owner?
[Rabbi Michael Abraham] I’ll be considered the one in possession. In land cases, the former owner is considered the one in possession; he has the force of… the concept of possession is a concept in the laws of claims and counterclaims. In land, the one who receives the status of being in possession is the one who is the former owner. Okay? And if I have migo, then I receive the status of being in possession, not the former owner. It’s not true that I become the former owner—that’s irrelevant—but I become the one in possession. Fine. Okay, now we’re entering the question that is really the main subject, and that is: what exactly is the superiority, what is the reasoning for the superiority of “the mouth that prohibited” over migo? Everybody senses that it is stronger, but let’s try to break it down. What is really the difference? So here I want to suggest four explanations. The first two explanations will view “the mouth that prohibited” as a stronger migo, but still the idea is a migo idea, just stronger. The second two explanations see “the mouth that prohibited” as an alternative mechanism, not migo. Okay? Let’s begin with the migo explanations.
[Speaker D] We said earlier the possibilities—it just got stuck in my head. The ketubah was lost. The ketubah was lost, and she comes and says: I was injured by a blow. And he comes and says: no, you had relations. So by the fact that she says she was injured by a blow, and there isn’t—no—then at least she comes and says that one hundred…
[Rabbi Michael Abraham] And does it matter whether she was injured by a blow or not? The husband says that one hundred was written in the ketubah. As far as I’m concerned, she can still be a virgin to this day.
[Speaker D] He wants one hundred; she wants two hundred.
[Rabbi Michael Abraham] She wants two hundred, yes, she wants two hundred, and he says: one hundred was written in the ketubah. Do I care whether she was injured by a blow or whether she was some bizarre thing? What do I care? The ketubah says one hundred; she won’t get more than one hundred.
[Speaker D] Here, her ketubah was lost.
[Rabbi Michael Abraham] But I claim that one hundred was written in the ketubah, and she claims that two hundred was written in the ketubah. Right? So if one hundred was written in the ketubah—that’s my position—then as far as I’m concerned she can be a flying elephant, not injured by a blow; she won’t get more than one hundred. It doesn’t depend on her condition at all; one hundred was written in the ketubah. If two hundred was written in the ketubah, now a discussion begins. If she had relations, then she deceived me, so really I should pay her one hundred even though the ketubah says two hundred. So she says: no, I was injured by a blow, I didn’t deceive you, so therefore I deserve two hundred. Fine, one can discuss that. But if I claim that one hundred was written in the ketubah, then I’m not interested in what she was or wasn’t.
[Speaker E] But how can it be that one hundred was written and she was injured by a blow?
[Rabbi Michael Abraham] What do you mean? She claims she was injured by a blow. I claim not. It’s unrelated. I claim that one hundred is written in the ketubah.
[Speaker F] Right, but if I want to clarify what is plausible here, in the end I need to investigate what the situation is here?
[Rabbi Michael Abraham] No problem. If you’ll have clear proof whether she had relations or had been injured by a blow earlier, from that you can also derive what was written in the ketubah. Ah, sure. So go look. But there isn’t any—you won’t succeed, you won’t find it. The husband himself claims that one hundred was written in the ketubah, so I’m not interested in what the woman says she was or wasn’t.
[Speaker F] Especially when she claims that, he also claims that apparently she was.
[Rabbi Michael Abraham] Of course. If she brings evidence—not if she claims, if she brings evidence that she was a virgin—that would be evidence against him. Of course. And therefore if there are wedding-procession witnesses, that is evidence against him. The advantages of “the mouth that prohibited” over migo. I’ll start first with the view that “the mouth that prohibited” is regular migo, just stronger. The same idea of “why would I lie?” Now here we need the two aspects of migo that we discussed in the first classes. We saw that there is “why would I lie?” and there is force of the claim. In both of those aspects, “the mouth that prohibited” is stronger.
[Speaker E] Because it’s not even “why would I lie?” It’s “why would I speak?”
[Rabbi Michael Abraham] Exactly. Because “why would I lie?” means: either way I’m lying, but that lie would have brought me better results. Here I’m saying: I could have even refrained from lying. That is a thousand times stronger. That logical consideration of “why would I lie?” is much… wait, no no…
[Speaker E] Yes, because exactly, I could have stayed silent.
[Rabbi Michael Abraham] Yes, yes, of course. What could I have—here I wouldn’t even have had to lie, according to Rashi. Exactly. Right. So certainly this is a much stronger “why would I lie?” The idea of “why would I lie?” appears here in a much stronger form. Okay. According to Tosafot it really is not so, because according to Tosafot I would have had to lie with a lie of “it never happened,” but I could not have remained silent. Therefore the advantage in terms of “why would I lie?” of “the mouth that prohibited” over migo is weaker according to Tosafot. Although one has to remember that according to Tosafot, Rashi’s case is also “the mouth that prohibited”; Tosafot just claims that not only Rashi’s case. After all, if he knows nothing at all without my speaking, that is certainly “the mouth that prohibited” according to Tosafot, right? Tosafot only claims that even in a case where he knew, there are situations of “the mouth that prohibited.” Right? So in Rashi’s case Tosafot too agrees that there is an advantage of “why would I lie?” Only in Tosafot’s unique case, where he knew the facts without me—in that case this “the mouth that prohibited” does not have the advantage of “why would I lie.” Okay. You could still say there is some advantage of “why would I lie,” because still, denying the whole thing is easier than saying some lie like, I don’t know, “the cow was plastered after the fact” or something. Saying “there was never any person” is dismissing you on the spot. It’s perhaps an easier lie. On the other hand, it’s more brazen, and that’s a disadvantage. So I’m saying: according to Tosafot it’s not clear; according to Rashi it’s very clear that there is a stronger “why would I lie” here. What about force of the claim? According to Rashi it’s obvious, obvious that it’s stronger. Because we explained there what force of the claim is. Force of the claim means that it turns me into the one in possession, right? More in possession than him. Right. I could have prevailed with an alternative claim, therefore I am considered in possession, because I could have prevailed even without the court, so I’m considered in possession. That is the idea of force of the claim, right? Now here, not only am I in possession, not only could I have been in possession—you wouldn’t have been here at all; only I would have been on the scene. Without this there wouldn’t even have been a claimant here, not only would I have been considered the one in possession between the two of us. Okay? So this is the father of all possession. Meaning, I’m saying: if in migo I had to expand—wait, slowly—if in migo I had to expand the concept of possession in order to say that migo gives me the force to be considered in possession, force of the claim, in “the mouth that prohibited” I do not need to expand the concept of possession. I am classic possession. I’m just in possession. This is not an expansion of the concept of possession; I am the one in possession. And as long as I didn’t open my mouth, I’m sitting on the land and there is no other former owner; I’m the one in possession. So you do not need to expand the concept of possession in order to say that I am believed; the concept of possession itself says that I am believed. Okay? Therefore, therefore “the mouth that prohibited,” also in the dimension of force of the claim, is stronger than ordinary migo.
What happens according to Tosafot? It’s somewhat similar to the previous story, but here I think it’s better. Because obviously in the case of a person there is more room to view me as in possession than in the case of some bizarre claim after the fact. In that bizarre claim after the fact I could have won in court, but I couldn’t have brushed you off without any hearing at all. In the case of the person, I could have brought about the closing of the court’s doors; the case would never have begun. So this is a very small expansion of the concept of possession. Here it is very natural to see such a person as in possession; it’s a very compelling expansion. Okay? Therefore this is an advantage of “the mouth that prohibited” over migo also in the dimension of the force of the claim within migo. Meaning, it is a better migo both in the dimension of “why would I lie?” and in the dimension of force of the claim. Those are the first two explanations of why “the mouth that prohibited” has an advantage over migo.
Remember what Rashi said. Rashi said that the advantage of “the mouth that prohibited” over migo is that in migo there are objections to the migo: perhaps he is being crafty; perhaps he didn’t think of the alternative claim. Right? These are objections to the logic of migo. In “the mouth that prohibited,” there are no objections to the logic of migo, so the logic of migo remains intact, right? But all that is said only in the view of Rabbi Yehoshua, because Rabbi Yehoshua relates to those two difficulties as objections that really undermine the idea of migo. So they ask: then why does he accept “the mouth that prohibited”? Because the logic of migo exists in “the mouth that prohibited” without the objections that exist against it. But all these are explanations only within Rabbi Yehoshua’s view. But Rashi himself, when he explains Rabban Gamliel—the halakhic position—after all, according to the halakhic position there is migo, right? Ordinary migo too, not only “the mouth that prohibited.” So according to the halakhic position, these objections—perhaps he is being crafty, perhaps he didn’t think of the alternative claim—do not trouble us even in ordinary migo. So you cannot explain that the superiority of “the mouth that prohibited” over migo is because in “the mouth that prohibited” there are no such objections; in ordinary migo too there are no such objections according to the halakhic position. Only Rabbi Yehoshua thinks that these are problems for migo.
[Speaker D] So according to Rabban Gamliel, Rashi explains it like Tosafot?
[Rabbi Michael Abraham] Not like Tosafot—like the two explanations I gave earlier, that it is simply a stronger migo. Okay? According to Rabbi Yehoshua, “the mouth that prohibited” is not a stronger migo; it is the only migo that exists. Exactly. Ordinary migo does not exist because there are difficulties with its logic. Only in “the mouth that prohibited” does the logic of migo hold up. Therefore that’s another explanation, but it’s an explanation that is true only according to Rashi in Rabbi Yehoshua. Therefore—and I’m now speaking according to the halakhic ruling—why is “the mouth that prohibited” stronger than migo? So according to the halakhic ruling I said the previous two explanations, because migo also exists and Rashi’s objections are not difficult for it, since according to the halakhic ruling we accept the idea of migo. So why is “the mouth that prohibited” stronger? Either because it is a stronger “why would I lie,” or because it turns me into the one in possession in a more pronounced way—force of the claim.
By the way, Maimonides’ explanation, the third idea in migo—Maimonides, who says: why do I give migo? In order to allow a person to tell the truth. Remember? Maimonides in the laws of claims and counterclaims says that the whole reason I give migo is to allow a person to tell the truth, not to force him to lie. Okay? So in “the mouth that prohibited” that is certainly true. I want to allow him—I’ll say to him: listen, you’ll be believed even if you say that it was his father’s and that you bought it from him, and you won’t have to lie and say “it never happened” or say nothing at all. Fine? We have an interest in the truth being revealed to the court, so we have an interest in giving him “the mouth that prohibited.”
[Speaker E] But that seems to me the same strength.
[Rabbi Michael Abraham] Exactly. But then the difference in migo does not exist. The difference between “the mouth that prohibited” and migo according to Maimonides will not exist. Because according to Maimonides, migo has no independent force. According to Maimonides we want to give you migo in order to allow you to tell the truth, but not because the migo actually makes you more believable; rather, it simply doesn’t interfere, and if we give you migo then the truth will also come to light, so what do we care? We’ll give you migo. So in “the mouth that prohibited” that consideration obviously also exists. But that does not make your status stronger.
[Speaker F] He seemingly explained that according to Rabbi Yehoshua. What? Seemingly he explained that according to Rabbi Yehoshua.
[Rabbi Michael Abraham] It could be that Maimonides would indeed say that besides this idea of migo, that it allows you not to lie in court, there are also the regular explanations of migo. And from their perspective, “the mouth that prohibited” is stronger than migo.
[Speaker D] Maimonides is not coming to explain Rabbi Yehoshua; he goes according to the halakhic ruling.
[Rabbi Michael Abraham] Fine, but how did he learn the Talmud according to Rabbi Yehoshua? One can ask that. The question now is how he understood Rabbi Yehoshua in the Talmud. Okay, so those are the first two explanations regarding the superiority of “the mouth that prohibited” over migo.
The other two require a bit more length from me. I’ll say them briefly, and I’ll expand on them more in the next class. The other two explanations assume that this is a completely different mechanism. It’s not an upgraded migo. “The mouth that prohibited” is something else. The first explanation is one that perhaps could be called a moral explanation. What do I mean? After all, you received your status—or the power to claim, or your status as the one in possession—only from my mouth, from me. So how can it be that you make use of that against me? You received that power from me. Now this has to be understood. If the consideration of possession were an evidentiary consideration, there would be no place for such a claim. Suppose you received evidence from me and on that basis you prevail. Why does it matter that you received it from me? Bottom line, there is evidence here and it became clear that this is the truth. If that’s the truth, then you prevail; what difference does it make from whom we received the evidence? But if you receive from me the power to prevail as the one in possession—when I said, “This field belonged to your father,” I didn’t say that it’s yours; after all, I’m saying it’s not yours, it’s mine. But I gave you the power to prevail because you are the former owner; you become the one in possession. That is a victory not by force of evidence, but because of power. You have the power to prevail because it belonged to your father. Right? You received that power from me. So it is impossible for us to treat that power as your power. We give you the power to prevail not because you are right, but because the power is in your hands. Why? And he received that power from me. If we are already discussing whose power it is, that power is mine. Again: if this were evidentiary, then it doesn’t matter where the evidence came from. Evidence is evidence; if it proves that he is right, then he is right, what difference does it make where it came from. But if the basis of prevailing is possession, as here, when I say, “This field belonged to your father”—by virtue of what do you prevail? Not because the field is yours, but because you are now the one in possession, you are the former owner, and now the burden of proof is on me. If I fail to bring proof, the land remains yours not because you are right, but because you are the one in possession. Possession is a consideration of power. Right? But power—you received that power from me. So why on earth should we give you the privilege of saying that this power is yours and allow you to prevail because of that power? You received that power from me; that power is mine.
[Speaker D] Yes, but if the court already hears something, some report has already gone out that you said…
[Rabbi Michael Abraham] Not a report, leave me alone with reports, there is no report here.
[Speaker D] No, he said that it belonged to your father. So suddenly he sees there are grounds for the matter.
[Rabbi Michael Abraham] No, there are no grounds for the matter, that’s what I’m saying. Why?
[Speaker D] You yourself said there were.
[Rabbi Michael Abraham] No, I said he is in possession, not that there are grounds to think he is the owner. There are no grounds to think he is the owner. I bought it from him.
[Speaker D] You said it belonged to his father.
[Rabbi Michael Abraham] Right, it belonged to his father, and now I bought it. Who says I didn’t buy it? Maybe you didn’t buy it. Maybe not, maybe yes. But now the question is maybe not and maybe yes—so who prevails? The one in possession, right? But by virtue of what does he prevail? Not because there is evidence in his favor, but because the power is with him. And I’m saying: what do you mean the power is with him? I gave him that power. How can he prevail because of the power? Again, if it were evidence, then it wouldn’t matter where it came from. But if you say he prevails because the power is his, I say: what do you mean the power is his? I gave it to him. I could have stayed silent; I could have refrained from giving him that power.
[Speaker D] Fine, but the fact is…
[Rabbi Michael Abraham] …that you already gave it to him, so what is there to clarify? No, no—think. If I now give you a rifle, okay?
[Speaker D] If I come to… I didn’t give him one hundred shekels.
[Rabbi Michael Abraham] No, again, listen, you’re making bad analogies. If I had given him evidence, you’d be right. If I give him power, you’re not right. Because power is not something objective. The court lets you prevail by virtue of being in possession. So I say to the court: why are you letting him prevail? Let me prevail. The fact that he is in possession—I created that state of his being in possession. After all, there isn’t really any substantive reason to let the one in possession prevail. It’s not that he is really more correct.
[Speaker D] He created a situation where maybe there will be a public report, it starts in court—doesn’t the Talmud say that in the first chapter? A report starts in court.
[Rabbi Michael Abraham] So it starts in court—from what report? The person comes and says: this field belonged to your father. That’s the report? Some kind of report? There is no report here at all. I said: it’s your father’s field, that’s all. Now what? So what if it’s your father’s field? But I bought it, so what if it’s your father’s field? Rather, if we knew that it was his father’s and nobody brought proof, we would leave it with him—he is the one in possession. And we don’t know that, except because I said it. So you want to give him victory not because he is right, but by virtue of the power he has, which I gave him. Suppose the court announces a prize. It gives a prize to anyone holding a certain book, okay? Now I gave the person that book—does he deserve the prize? The prize belongs to me. If the prize belonged to him by the rules of the prize, then it doesn’t matter. Whoever holds the book gets the cover that fits that book, so if he holds the book he gets the cover—what would I do with that cover if he is holding the book? Okay, that’s not relevant. But if you say: no no, I have some privilege to win because the book is in my hand—look what a special person, the book is in your hand because the other guy gave it to you. So if someone deserves the prize, it should be given to him. You understand? It’s a kind of prize—of course it’s a somewhat distant parable—but it’s a kind of prize; it’s not a substantive consideration. Prizes? Why are you giving him prizes for something he got from me? Does that entitle him to prizes? The prizes belong to me. That’s the advantage of “the mouth that prohibited.” But of course this is in a place where “the mouth that prohibited” turns you into the one in possession; it doesn’t give you evidence. If “the mouth that prohibited” turns you into the one in possession or the former owner, you won’t get the privileges that status gives, because those privileges are a legal decision. And that legal decision—why give it to you? After all, I created this situation. Give it to me. It belongs to me. That is a very logical consideration. I said it’s like a moral consideration—I don’t mean it’s really a moral consideration, of course. Not moral—don’t use that. It’s not immoral to use power you got from me against me. That’s not the point. It’s a legal consideration. It means that power you got from me is not power—it won’t entitle you to power in court; it’s not relevant. That’s what I mean to say. It’s not a question of “it’s not fair,” “it’s not moral,” okay? I’m only using that as a description, as a parable, but it’s not really a moral argument; it’s a legal argument. You do not deserve privileges on the basis of power you received from me, that’s all. If power gives privileges, that power is mine, so give me the privilege as the possessor of the power. Okay? If that were evidence, that would be something else, but the evidentiary dimension is something else. That’s one consideration.
The second consideration—I’ll just say it briefly and then I’ll return to it next time in greater detail—is basically a consideration of either way. I am telling you two things: “This field belonged to your father, and I bought it from him.” And now look what you are doing to me—you are treating my testimony as trustworthy only where it hurts me. You take half of my testimony, the half that is bad for me, and the half that is good for me you say, no, on that you are not believed. Make up your minds. Am I believed in what I say? Then believe me about everything. You don’t believe me? Fine—but then don’t believe that it belonged to his father either. What, you’re now taking the empty half of the cup and leaving me the full half with poison? Meaning, either you take the cup from me or don’t take the cup from me, but you can’t take the half that’s bad for me and not take the half that’s good for me.
[Speaker D] A person doesn’t make his words meaningless. Why did you say it belonged to his father in the first place?
[Rabbi Michael Abraham] Because it really did belong to his father. What?
[Speaker D] Because I said, because it really did belong to his father. Fine, okay, so we agree that it belonged to his father.
[Rabbi Michael Abraham] Now let’s check whether it’s mine or his. Why? But if you believe me that it is his field, then believe me also that I bought it from him.
[Speaker F] That could also answer Tosafot, no? What? That could also answer Tosafot—that that is the reason, the main difference.
[Rabbi Michael Abraham] Ah, yes,
[Speaker B] we’ll get to that in a moment.
[Rabbi Michael Abraham] Regarding Rashi, I already said some explanations. In Tosafot, the first two explanations are a bit weaker. The second two explanations—we’ll still have to see what happens with them in Rashi and in Tosafot
[Speaker B] in the next
[Rabbi Michael Abraham] class.