Ketubot, Chapter 2, Lesson 19

[Rabbi Michael Abraham] The passage about one who admits to the document he wrote is connected to the previous passage in the following sense: in the Mishnah, after all, the case is that two witnesses come—the ones signed on the document—and testify that yes, they did sign, but they were disqualified. And on that the Talmud brings the dispute between Rabbi Meir and the Sages, the passage in Shevuot, and then the Talmud discusses what exactly the dispute between Rabbi Meir and the Sages is, rejects various possibilities, and in the end reaches the conclusion that their dispute is over the rule whether one who admits to the document he wrote must validate it or not. They bring only Rav Huna, who says it need not be validated, and say that on this very point the Tannaim disagreed. Rav Huna holds like Rabbi Meir. Rabbi Meir says it need not be validated, and the Rabbis say it must be validated. Why is that connected to the dispute between Rabbi Meir and the Sages? Because if the two witnesses come and say, “This is our handwriting, but we were disqualified, under duress, and so on,” then they basically have the mouth that prohibited, if there are no other witnesses validating the document. I’m talking about the first clause of the Mishnah. So they have the mouth that prohibited. And they have the mouth that prohibited only in a case where they are actually needed to validate the document. Because then they’re saying: we ourselves validated the document. If the lender needed to validate the document, then we played into his hands—we’re the ones who did that for him. So then we can also say that we were disqualified. Only if—

[Speaker B] the document has to be validated by the witnesses.

[Rabbi Michael Abraham] If—and only if—the document has to be validated, then the fact that the witnesses are the ones who validated the document gives them the power of the mouth that prohibited. Because if the document doesn’t require validation—for example, if someone else validates it, or if we’re in a situation where the document doesn’t require validation at all—then the fact that they validated the document doesn’t give them the power of the mouth that prohibited to say, yes, but we were disqualified. Their whole power to say, yes, but we were disqualified, is only because the force of the document is itself based on them. So you say: what do you want from me? You’re attacking me with the document to which I myself gave force, so I have the mouth that prohibited; believe me when I tell you that I was disqualified. But all of that is only when the force of the document really comes from me. When is that? When the document requires validation. Without validation it’s worth nothing. So when we came and validated the document, we’re the ones who gave it force. Therefore believe us also when we say that we were disqualified or under duress. But if the document doesn’t require validation in this particular situation, then the fact that we validated it—so what? Even without our validating it, it would still have been valid. So in that case we won’t be believed when we say that we were disqualified or under duress. So if we say that one who admits to the document he wrote must validate it, then basically that means the document is worth nothing unless it has validation. So if when the witnesses come they are the ones who validate it, then they are basically the ones who gave it force. Therefore they are also believed to say that they were disqualified. So one who says that one who admits to the document he wrote must validate it is basically saying that the witnesses are believed to say, “We were disqualified,” and that is the view of the Sages. Rabbi Meir, who says the witnesses are not believed and the document stands—the document is valid—he is basically saying that in such a case the document does not require validation. So the fact that you validated the document gave you no advantage.

[Speaker B] Or his admission is the validation, no? What?

[Rabbi Michael Abraham] Doesn’t matter—I’m not getting into right now why it doesn’t need validation, but when there’s an admission by the borrower, so that the document is validated, then the document doesn’t need validation. We’ll see later why that really is so. But the point is—that’s the dispute: whether such a document, one that the borrower admits to, does or does not require validation. The practical implication for our issue is the question whether the witnesses have the mouth that prohibited. Okay?

[Speaker C] Because if you don’t need witnesses—what?

[Rabbi Michael Abraham] No, whether witnesses are needed at all for the validation. But when the witnesses come and testify, “We were disqualified,” they’re not testifying about the validation. The question is why they are believed. So if validation was needed, and they are the ones who gave us that validation, then if they are the ones who gave us the validation, they are also believed to neutralize it, to say, “We were disqualified”—that’s the mouth that prohibited. But if in such a case a document doesn’t require validation—one who admits to the document he wrote need not validate it—then the fact that these witnesses validated the document gives them no advantage. That’s not why we should believe them when they say that they were disqualified. All right? Therefore the dispute between Rabbi Meir and the Sages is basically over Rav Huna’s rule: whether one who admits to the document he wrote must validate it or not. Of course, it’s not that this is just a matter of presentation. Rav Huna is ultimately just saying: I rule like Rabbi Meir and not like the Sages. Tannaim come before Amoraim.

[Speaker D] And that’s really what Rav Nachman challenges him on. Right.

[Rabbi Michael Abraham] We’ll say that in just a second.

[Speaker D] But the fact that Rav Huna doesn’t choose to present it as “I hold like Rabbi Meir”—maybe there’s some other practical difference to saying that this isn’t exactly the same thing. Isn’t there? Yes.

[Rabbi Michael Abraham] You said it. That’s exactly what Rav Nachman asks. We’ll get there in a second.

[Speaker D] Like, the very fact that Rav Huna says it the way he says it maybe means he doesn’t really hold like Rabbi Meir.

[Rabbi Michael Abraham] So that’s what Rav Nachman comments on. Rav Nachman himself says: if you say it in that way, then say according to whom—because apparently you’re not really ruling like Rabbi Meir, but saying something of your own. But why? After all, this is a dispute between Rabbi Meir and the Sages.

[Speaker B] So that’s—

[Speaker D] not—

[Rabbi Michael Abraham] So let’s see what Rav Huna would answer him. But I’m saying: that’s the discussion in the Talmud itself.

[Speaker B] But really the dispute is Rav’s, because Rav Huna says it in the name of Rav.

[Rabbi Michael Abraham] Yes, doesn’t matter. Rav Huna and Rav.

[Speaker B] He’s also a Tanna.

[Rabbi Michael Abraham] A Tanna may indeed disagree. Okay, but only in places where the Talmud says so. It’s true that in principle Rav can disagree with Tannaim. Rav lived in the transitional period, the first generation of Amoraim. He even sat in Rabbi’s court—Rabbi Yehuda HaNasi’s—in the Land of Israel, and then went down to Babylonia, right, “my sister’s son went down to Babylonia.” The Talmud in Sanhedrin says that Rav Chiya comes to Rabbi and says, “My sister’s son has gone down to Babylonia”—that’s Rav. “He may rule on prohibition and permission, he may judge, he may permit firstborns,” and so on.

[Speaker E] Yes—

[Rabbi Michael Abraham] Fine, but the assumption here is that here he is functioning as an Amora.

[Speaker E] And there’s a lot here… and there’s… not necessarily.

[Speaker C] Also for Rav—wait, we’ll get there, we’ll get there. There’s—

[Rabbi Michael Abraham] If you want, we can talk about it.

[Speaker B] Yes, we’ll talk. In a second.

[Rabbi Michael Abraham] So here first of all—that’s the background, the background that takes us from the passage, or from the Mishnah, to the dispute about whether one who admits to the document he wrote must validate it or not. And the conclusion of the passage so far is that this is basically a dispute among Tannaim. And if there’s a dispute among Tannaim, then in the straightforward view, the Jewish law follows the Sages,

[Speaker B] not—

[Rabbi Michael Abraham] not Rabbi Meir, because the Jewish law follows the majority. So that means that one who admits to the document he wrote must validate it, not that he need not validate it. And Rav Huna’s words fit Rabbi Meir, but if there is here a Tannaitic dispute, then it basically comes out that Rav Huna’s statement is not the halakhic ruling. Okay? Rav Huna rules like Rabbi Meir, but it basically comes out that his statement is not the halakhic ruling. But what?

[Speaker B] What, he’s kind of angry at him

[Rabbi Michael Abraham] for not saying that up front?

[Speaker B] Yes, no, he’s kind of coming down on him, taking a jab at him. He says against yourself, like you’re saying like—

[Speaker F] No, like you invented some kind of method.

[Rabbi Michael Abraham] No, like you invented some new idea. This is a dispute among Tannaim. Just say, “I rule like Rabbi Meir,” and that’s it.

[Speaker F] About what—

[Speaker E] You’re sort of presenting it as if you’re—ah, I get it.

[Rabbi Michael Abraham] As if you’re presenting it—

[Speaker E] as an individual against the majority. Yes, it’s like—

[Rabbi Michael Abraham] It’s like what the Talmud asks in many places: “Shall we say this is like a Tannaitic dispute?” When Amoraim argue with one another and the same dispute already exists among Tannaim, then the Talmud says: so what are you starting to argue here for as if you invented the issue? You say you rule like this Tanna, and you say you rule like that Tanna. What—this is ultimately just a dispute about how to rule. You’re formulating it as if you invented this issue and are now starting to discuss it. The Tannaim already discussed it. Just come and say whom you rule like. That’s the “shall we say this is like a Tannaitic dispute?” It’s a linguistic question. There’s no problem—an Amora is allowed to rule like this Tanna or that Tanna. But on the linguistic level it isn’t clear why you present it as some dispute that you’re inventing, when in fact it’s a dispute among Tannaim and you’re only ruling. So basically that same point is what Rav Nachman says here against Rav Huna.

[Speaker B] Maybe just a short preliminary discussion.

[Rabbi Michael Abraham] We know—I’ll go back for a second to what I already said—that basically the law of a document is that witnesses signed on the document are treated as though their testimony had been examined in court. In other words, the witnesses on the document are regarded like two witnesses testifying to the matter. That itself, I said simply, is a Torah-level law; Maimonides apparently holds that it’s only rabbinic. But that is called the basic law of a document. After that comes the enactment of document validation. And again, in the straightforward understanding, document validation is needed only on a rabbinic level—it’s a rabbinic enactment. That’s in the Talmud in Gittin and elsewhere, that it’s needed only rabbinically, which Tosafot also comments on, but we’ll get to that in a bit. So that means that basically on a Torah level, when someone brings out a document, he can collect with that document. He can collect with that document means you cannot claim against the document that it is forged, and seemingly you also cannot claim against it that it was paid. Neither forged nor paid. Why not forged? Because these are document witnesses. The law of documents says that the assumption is that documents are not forged, and therefore the witnesses signed on the document are like testimony examined in court. Why can’t one claim it was paid?

[Speaker F] Because the document is with—

[Rabbi Michael Abraham] the lender, because the lender is holding the document in his hand. If you had paid, you would have taken the document from me. What is the document doing with me? And you don’t have a migo from forgery.

[Speaker F] Because you don’t say forgery.

[Rabbi Michael Abraham] Exactly, because on a Torah level, forgery doesn’t help. So you also don’t have a migo from forgery. When you say “paid,” we’re always used to saying that when you say “paid” you always have a migo, because you could have said “forged.” That’s not true—that’s only after the enactment of document validation. But under the basic law, when you don’t need to validate a document, you can’t claim against a document someone produces against you that it’s forged; and therefore when you claim “paid,” you also don’t have a migo that you could have claimed forgery, because you couldn’t have. Okay? Therefore, under the basic law you can’t claim against a document either “paid” or “forged.” The document says—one second, let me sharpen this further—the document says: you can’t claim forgery because there are witnesses against you. The two witnesses on the document say that there was a loan; you can’t say the document is forged. In reality, yes, halakhically there’s also such a thing as two witnesses lying. And still, when two witnesses come we accept them, because the law says we don’t worry about that possibility. So on the halakhic level this is a certainty, like two witnesses. Okay? We treat the document—even though of course it’s weaker than two ordinary witnesses—but because we discussed why we need this enactment of documents or this law of documents, because of those considerations, we see the document as two witnesses. But what do those witnesses testify to? They testify that there was a loan. They say nothing about repayment. Yes. In other words, my inability to claim forgery against the document is because there are two witnesses against me. The two document witnesses say the document is not forged—there was a loan. My inability to claim payment against the document is not because there are witnesses against me,

[Speaker G] but because the document is with him.

[Rabbi Michael Abraham] Exactly, that’s a presumption.

[Speaker G] A presumption.

[Rabbi Michael Abraham] A presumption that one who pays the debt takes the document in exchange. And if you didn’t take the document, there is a presumption against you. Therefore you cannot claim payment against a document standing opposite you. But notice: here your inability to make that claim is not because there are witnesses against you, but because there is a presumption against you. The witnesses on the document testify that there was a loan; they do not testify that there was no repayment. Two different things.

[Speaker B] And therefore—

[Rabbi Michael Abraham] if I had a migo—if I said “paid” with a migo that I could have said “forged”—then there would be room to wonder what the law would be. Because I have a migo in my favor when I say “paid,” and what stands against me is not witnesses. If it were witnesses, migo against witnesses is worth nothing. But what stands against me is a presumption, not witnesses. Once it’s migo against presumption, there’s room to wonder; that’s the Tosafot on page 19a at the top that we saw, right? About migo against presumption—who prevails. So here it’s already not a simple question. But of course under the basic law before the enactment of document validation, there’s no migo anyway. Therefore there’s no problem: when I couldn’t claim forgery because you couldn’t claim forgery against a document, then when I say “paid” I also don’t have in my favor the migo that I could have claimed forgery—I couldn’t have. Okay? Therefore—but this is a very important point that will accompany us later too, and we shouldn’t get confused—the document constitutes two witnesses to the existence of a loan; it is not two witnesses that there was no repayment. Therefore the inability to claim forgery and the inability to claim payment are two completely different things, and both are true: you can claim neither forgery nor payment against a document. But you can’t claim forgery because there are two witnesses against you; you can’t claim payment because “what is your document doing in my hand?” All right? Those are two different things.

[Speaker C] Rashi points out that he also could have said that the document might have been conditional and the lender didn’t fulfill the condition, didn’t fulfill the condition. Yes. Where? Here in our passage? Rashi inside Tosafot? No, no, not inside Tosafot.

[Rabbi Michael Abraham] Where? Which Rashi are you talking about?

[Speaker C] Wait, wait, wait—here, the lender has to validate.

[Rabbi Michael Abraham] A document of trust later in the passage, but that’s a different discussion. Before the document of trust. I don’t know what you mean.

[Speaker F] He brought here an example of a case where the document is valid but he really isn’t liable because it was conditional and the lender didn’t fulfill the condition.

[Speaker C] What was conditional? The repayment, the repayment.

[Speaker F] I didn’t understand—

[Rabbi Michael Abraham] Where are you? Which Rashi are you talking about?

[Speaker E] I think it was in Tosafot.

[Speaker F] I also don’t think it was in Tosafot.

[Rabbi Michael Abraham] No, Tosafot—let’s leave that for now.

[Speaker F] Not Tosafot, not Tosafot. Rashi somewhere else.

[Rabbi Michael Abraham] I don’t know, I don’t know what you’re talking about.

[Speaker H] A question for the moment: how does such a situation happen, where the lender doesn’t get the document back? Like, isn’t that the standard procedure? Because he didn’t pay. No—or maybe he did, say I trust him.

[Rabbi Michael Abraham] Right, and that’s exactly why you don’t believe him, because that can’t happen.

[Speaker H] But there is a possibility of it. No, there isn’t. There is—look, he gives an example, or it was stolen from him—

[Rabbi Michael Abraham] back, or I don’t know what. I give a check. And he isn’t believed. What do you mean there’s such a possibility? He isn’t believed precisely because of that: if you had paid, then what is the document doing with him? A person takes the document.

[Speaker D] So what is the whole discussion about then?

[Rabbi Michael Abraham] There is no discussion—he isn’t believed. That’s all.

[Speaker D] He isn’t believed not because he’s actually not credible—no, but because it’s not plausible.

[Rabbi Michael Abraham] Right, so that’s called not credible.

[Speaker H] It doesn’t happen.

[Speaker D] Because it isn’t plausible.

[Rabbi Michael Abraham] Plausibly, he’s lying. Because if he had paid, then he would have taken the document back. There’s a presumption against him. A document of trust?

[Speaker H] That’s a different possibility, it’s sort of—

[Rabbi Michael Abraham] a kind of Torah-level issue—we’ve been talking only about the Torah-level side so far. In a moment we’ll get to the rabbinic side; for now I’ve been talking only about the Torah-level side. Now let’s go one step further. So far this is the Torah-level situation. It’s very important to put things in order so we don’t get tangled later. So—that’s stage one. Now comes the enactment of document validation. The Sages say: you cannot collect with the document unless you validate it. Validate the witnesses, the signatures of the witnesses. I explained why: because a person is only a person—he can forge—and the enormous power given to witnesses on a document is a power that can be abused. Therefore the Sages say: validate the document, write a certification, go to court and have them validate the document, and then everything is fine. But you have to validate the document. What happens now after validation? Here’s the picture. To claim that the document is forged—someone produces a document against me after the enactment of document validation. Until now we were talking on a Torah level, where there is no enactment of document validation. Now there is an enactment of document validation. Someone produces a document against me—can I claim against the document that it is forged? No, if it was validated. Of course I can. That’s the whole enactment of document validation. The enactment of document validation says that if I claim forgery, you will have to validate the document.

[Speaker F] The burden of proof—

[Speaker E] is on you.

[Rabbi Michael Abraham] Exactly. In other words, the enactment of document validation basically means that the borrower is allowed to claim forgery against a document produced against him. That is basically the meaning of the enactment, right? If I claim forgery, that’s exactly what will force you to validate it. After you validate it, of course I’m finished, because I can no longer claim forgery—there are two witnesses against me that it isn’t forged. Okay.

[Speaker D] If the borrower doesn’t claim forgery, then is it as if he admits that he wrote the document?

[Rabbi Michael Abraham] And that’s our discussion. That’s our discussion—we’ll get to it in a minute.

[Speaker D] What you just said—

[Rabbi Michael Abraham] I assumed something here, and if you brought up Even HaEzri we’ll get to that later. Okay. For the moment I assumed something. You’re right that it’s not necessary. So basically what I want to claim is only that we need to notice the other side of the coin. When we say that the Sages enacted that a document must be validated, what does that really mean? It basically means: you, the borrower, can claim forgery, right? On a Torah level you could not claim forgery because the document is like two witnesses. Now you can claim forgery. Right? That’s basically the point. Good. So forgery I can claim, and as long as you haven’t validated it, you won’t be able to collect with this document. If you validate the document, we return to the Torah-level situation: here there are two document witnesses, and I can’t claim anything against two witnesses. Fine? Now if I claim “paid” against the document. You produced a document after the enactment of document validation; the document still hasn’t been validated, okay? And I claim “paid.”

[Speaker F] If the document is in my hand, I win.

[Rabbi Michael Abraham] The document is in the lender’s hand, so the presumption is on my side. That’s the discussion. The document is in the lender’s hand and I claim “paid.”

[Speaker F] So then I can’t, because the document is with him. No, the document isn’t validated. The borrower says “paid”—he validated the document; when he says “paid,” he validated the document.

[Rabbi Michael Abraham] No, it needs to—

[Speaker C] be—

[Speaker E] validated.

[Rabbi Michael Abraham] Okay, that’s what this is talking about.

[Speaker F] The borrower validated the document.

[Rabbi Michael Abraham] This situation—that is the dispute about one who admits to the document he wrote.

[Speaker D] Right.

[Rabbi Michael Abraham] There are two views. One view says it must be validated, and one says it need not be validated. That’s the dispute, that’s the case. Okay.

[Speaker D] Why doesn’t it need to be validated? But wait—in the case where he claims “paid”—

[Rabbi Michael Abraham] She has good intuition—go on. No, you’re asking a good question. But I’ll ask the question myself. What Noa said earlier—I’ll ask that question. The moment a person says “paid,” he is basically saying the document is valid. Right? So then he himself validated the—

[Speaker D] document. There’s a litigant’s admission.

[Rabbi Michael Abraham] Why does the document need validation? How can it be that one who admits to the document he wrote must validate it? After all, there’s the borrower’s own admission that the document is validated. There’s no dispute from the borrower—how can there be anyone who says that one who admits to the document he wrote must validate it? What an absurd thing. Okay. More than that: it’s like just one more pointless stage the lender has to go through. The lender comes to the borrower and asks for the money, and he says, “I paid,” and now in order to extract from him—

[Speaker F] the money, he has to—

[Rabbi Michael Abraham] to make an effort—so first of all, according to the dispute here, if we go according to the Sages, he first has to validate the document, and in any case afterward he has to find a way to prove, in order to extract the money, that the other person didn’t repay. Why? Because if he validated the document, then that’s it. What? Then the other person has to pay because of the document—obviously. You can’t claim “it was repaid” against a validated document. If the document is validated, no claim helps against it—not “it was repaid” and not “it’s forged.” Right. So in other words, automatically, the moment he validates the document he’ll get the money. Right. So what do we have here, really—a presumption against a migo slash—no, wait, wait, exactly, I want to build this step by step. So look—once again, we’re after the enactment requiring validation of documents, okay? After that enactment, if I want—I, the borrower, claim “forged”: someone produces a document against me and I claim it’s forged, I can make that claim, and he’ll have to validate it. If he validates it, he has shown that the document is not forged, and he’ll get the money, right? If I claim “it was repaid” after the enactment requiring validation of documents, I’ll claim “it was repaid.” In that situation, apparently, when I say “it was repaid”—you know, “whoever says ‘I never borrowed’ is like saying ‘I never repaid’”—we saw that once, right? If implication A implies B, that’s equivalent to implication not-B implies not-A, right? In other words, “whoever says ‘I never borrowed’ is like saying ‘I never repaid’” is the same as “whoever says ‘I repaid’ is like saying ‘I borrowed.’” Right? It’s a bit… If you repaid, then you borrowed. Or: whoever says “forged” can’t claim “repaid.” Right. So therefore, in effect, when I say “it was repaid,” by that I’ve said that the document is validated, that I borrowed, and that the document is genuine. What? Wait a second. So in principle, I validated the document, right? Right. So since I validated the document, the question arises: then what’s the problem if now there’s a validated document against me? I can’t claim “repaid” against a validated document. Right? But this is where the migo comes in. After all, I validated it; “the mouth that prohibited is the mouth that permits”—we’ll see in a moment. After all, I validated the document; without me, the document wouldn’t have been validated. Therefore, even though I’m claiming “repaid” and a validated document stands against me—since in principle I could not have claimed “repaid” against a validated document, for example if two other witnesses had come and validated it—but since here I am the one validating it, I have “the mouth that prohibited,” or I have a migo, because after all I could have refrained from validating the document. So here begins the dispute whether one who admits, “yes, I wrote this document,” still requires validation or does not require validation. That’s the discussion. Okay? And once validating witnesses come, then there’s no question. Then there’s no question—obviously.

Now notice: this produces an absurdity, but we already got stuck with this absurdity. Suppose witnesses come and validate the document—what did they add to the discussion? After all, everyone agrees that the document is validated. The borrower agrees, and I also admit that the document is validated. So two witnesses come and validate the document—why is that relevant? It’s very relevant. Because now he has no migo. He has no migo. Once the witnesses validated the document, he can no longer choose not to validate the document; he has no “mouth that prohibited,” he has no migo. Therefore, validation of the document is not required for its own sake at all. When you validate the document, it isn’t required in order to inform the court that this document is a genuine document. Everyone knows that—both the borrower and the lender. In effect, what validating the document does is not make the document validated, but rather strip the borrower of his migo. It’s a kind of legal tactic. In other words, you don’t have to validate it so that the document will be validated. You have to validate it so that the validator won’t be you, but them. And then you won’t have a migo. It’s a little strange, this kind of legal twisting. In other words, we’re essentially demanding witnesses for something everyone agrees about. So what good does it do to bring witnesses if everyone agrees? Yes, it’s a strange thing, but that’s how it is. The moment the witnesses come, the borrower has no migo, and we return to the situation of a validated document, against which nothing can be claimed. You can claim neither “it was repaid” nor “it’s forged.” The big question is what happens if I am the one who validates it. I validated the document. Does that situation count as my claiming “repaid” against a validated document—in which case of course I can’t make that claim—or not?

And notice, once again: since this is a case where I am the one making the claim, I have a migo, “the mouth that prohibited,” or something like that. What stands against me? That the document is validated. No—it’s not the document itself. What does the document itself show? That there was a loan. I too agree that there was a loan. What stands against me is only the presumption, “If your document is in my hand, what is it doing there?” And therefore there is definitely room here for discussion. I have a migo, and what stands against me is not two witnesses but only a presumption. Migo against a presumption—we have to discuss which is stronger, and that is the dispute. Okay? The validating witnesses testify only that there was a loan; they do not testify that it was not repaid. Exactly. Therefore, when I say the loan was repaid, I’m not contradicting the witnesses. No—he admits that he borrowed, and they testify as well. Exactly. So he no longer has a migo. Right, exactly. But they don’t testify—right. I claim I repaid, and we move on. What stands against my claim that I repaid is not the signatures on the document; the signatures on the document do not say that I didn’t repay. What stands against me is the very existence of the document in the lender’s possession. What is your document doing in the lender’s hand if you repaid? So that is only a presumption. The validating witnesses disqualify my migo, and then only the presumption remains, and he wins. Exactly. Okay? And if I did have a migo, it still wouldn’t be clear that I win, because there is a presumption against me, and now there’s room to hesitate, and that is the dispute over whether one who admits to having written the document must validate it or need not validate it. Okay?

So that is really the picture; you have to keep it in your head all the time. That’s really the point. Who says it must be validated and who says it need not be validated? Rav Huna and Rav Nachman, and Rabbi Meir and the Rabbis. One says it must be validated: Rav Huna says it need not be validated, and that is Rabbi Meir. And the Jewish law follows Rav Nachman, who says it must be validated, and the Sages are also like Rav Nachman, while Rabbi Meir is like Rav Huna. So basically, the one who says it need not be validated says he has a migo? And the one who says it must be validated says… No, there is always a migo. The question is whether the migo overcomes the presumption or doesn’t overcome the presumption. That’s what I was about to ask—if we’re talking about a case where he himself validated the document, “one who admits the document was written.” There is no other validation of the document. If there were another validation of the document, there’d be no dispute; you can’t claim “repaid” against a validated document. But if I don’t have a migo then I—then I have no claim at all. What do you mean? I’m the borrower, I claim I repaid, I claim I repaid—but if I don’t have a migo, then why do I need a migo? “The burden of proof is on the one seeking to extract money from another.” The one who thinks it need not be validated says he has a migo. The opposite, no? He says the presumption is stronger. In any case the borrower has a migo. Again: the one who thinks it must be validated says the question is whether the migo is effective. In any case the borrower has a migo. That’s not—the facts aren’t in dispute. In reality he has a migo. He could have claimed “forged.” But it doesn’t work. So the migo doesn’t help him. The question is whether the migo is effective—exactly. Because against him there stands the presumption. They’re saying that if you take this migo as something that prevails, then it requires validation. Does the migo overcome the presumption or not overcome the presumption? To say the document is forged. Right.

Okay, now if the migo overcomes it, apparently—we’ll see—Tosafot brings three possibilities. But if the migo overcomes it, then validation is required. What? If the migo wins, then validation is required. Right. If the presumption wins—equal to the presumption, it doesn’t matter—“overcomes” means the one with the migo has the upper hand. If the presumption wins, I don’t need validation because it makes validation unnecessary. Now the migo—and again, notice the absurdity—if the migo wins, then validation is required even though validation itself actually undercuts the migo. It doesn’t address the migo. The migo only proves that I repaid. The validation shows that there was a loan. Am I claiming there was no loan? I also agree that there was a loan. Right, but if they validate it, that strips away my migo, and then I’m no longer believed to say “repaid,” because “What is your document doing in my hand?” And the fact that validation is required is not because we’re unsure whether the document is forged or not forged. Validation is required because only that way can you overcome the borrower’s migo. You, the lender, have to overcome the borrower’s migo. That’s all. And that is the root of the dispute over validation—at least that’s how I’m presenting it for now. Tosafot himself rejects this, but we’ll see in a moment. That’s how I’m presenting it for now. No, but what are you presenting? That migo is like—let’s check whether migo is equal to a presumption or weaker than a presumption? Which wins—the migo or the presumption? And again, this is not witnesses, because against witnesses there’s no question; migo doesn’t beat witnesses. No—or whether there even is a migo here. What? No, that’s not the question of which wins. There is a migo here. He can say—he could have said “forged.” Obviously he has a migo. What’s the question? It’s a fact that he has a migo. Yes, but as a force of “the mouth that prohibited.” No, fine—but you’re talking there, but on the principled level he has a migo, and the question is whether it overcomes the presumption or not.

Now understand: the wording “one who admits to the document he wrote must validate it” is very confusing wording, which is why I gave this whole introduction. Because if I admit that I wrote the document, then why is validation needed? It sounds as though the one admitting is the one validating. After all, through a litigant’s own admission, I admitted that the document is validated. So how can you say “one who admits to the document he wrote must validate it”? He must validate it—who? The lender. But why does he have to validate it? I admitted that the document is validated. So why? What did I admit? What is the dispute about at all, if I admit the document is validated and he also says the document is validated? So what is the dispute? We’re talking about a case where I claim “repaid,” of course, right? Always. If I simply say the document is validated and everything is fine, there is no discussion. Very good—now pay. Validated document, before the court, pay. Obviously the discussion whether one who admits to the document he wrote must or need not validate it exists only when I—how do I admit that the document is validated? I say “repaid.” As part of my statement saying “repaid,” there is also an admission that the document is validated.

I have another question about the order of the steps. When the lender comes to court with a document and says, “Shimon owes me money; here is the document in my hand.” Now the court says—what do they say? Do they say, “Fine, go validate the document and then we’ll go to Shimon”? Or do they first call Shimon and say, “Come pay,” and then he can make a claim? Obviously they first call Shimon, because if Shimon admits, fine, let him pay. And then he says, “That’s my document.” No, but there’s a case where he admits and a case where he denies, right? If he denies and says “forged,” then it has to be validated. If he admits, then of course it doesn’t have to be validated. If he admits, let him pay. There’s no discussion; you don’t need to get to court. But there’s a difference if he says “repaid.” And if he first admits and then says “repaid”? Then it’s a different discussion. That becomes a question of retroactive migo or retroactive “the mouth that prohibited.” That’s “the mouth that prohibited.” And then it’s “he can’t retract his statement,” right? “He can’t retract his statement”; you can’t say that. I didn’t understand. Not “forged”—he can’t. I—the lender came with the document, and now they ask Shimon, “What about the document?” Right, the document is valid, and then I say “I repaid.” Even when I say “I repaid” I have a retroactive migo. I had a migo in that I could have said—not admitted that the document was valid, but said it was forged. Only that’s what’s called a retroactive migo. It’s a migo I had some time ago. Now I no longer have it, because I tied my own hands. But at that time, after all, if I wanted to lie I would already then have said “none of this ever happened.” So believe me. Now, the medieval authorities (Rishonim) say there’s no such thing as retroactive migo, but retroactive “the mouth that prohibited”—that’s a dispute. There are medieval authorities (Rishonim) who say there is retroactive “the mouth that prohibited.” Machaneh Ephraim, for example—yes? We talked about it there. So why with “the mouth that prohibited” is there retroactively? Because “the mouth that prohibited” basically means: I gave you the power, don’t use it against me. So what difference does it make whether I gave you the power yesterday? Power that you got from me cannot be used against me. That’s not the logic of “why would I lie.”

Okay, so once again: the dispute is that if I claim “forged” against the document, then certainly you’ll have to validate it. Right? If I admit that the document is validated, we simply never get to court, so I have to pay and that’s all. If I admit that the document is validated in the following way—I basically say “repaid,” but included in that is also an admission that the document is validated—about that there is the dispute. Does one who admits to the document he wrote require validation? And why? After all, I admitted that the document is validated, so what’s the problem? What’s the discussion here? More than that: why is validation needed, and what does validation help? You’re bringing me witnesses on something both sides agree is true—that the document is validated. The answer is that there is a migo here against a presumption, and validation is the only way to strip away the migo. And that way the lender can win because of the presumption in his favor. Okay? That’s really the general summary.

Now in the Gemara it says—and according to this, Rav Nachman brings some kind of technical tool that is actually problematic, according to this understanding. What do you mean? He gives power to the lender, whereas earlier we wanted to give power—Hazal wanted to give power also to the borrower so that the lender wouldn’t be able to forge, right? So now, according to this line of thinking of Rav Nachman against Rav Huna, he’s basically returning the power to the lender. Not true—on the contrary, Rav Nachman says it must be validated. But the moment you validate it—if you validate it, then that isn’t power. He cancels the borrower’s migo. Obviously, but if you validate the document that isn’t called taking away any power. Once the document is validated, the document isn’t forged—that’s the whole idea of a document. The whole idea of a document is that someone who presents a document that we know is valid cannot be defended against— that’s the whole point of a document. We only had a concern that maybe the person forged it, but if he validated the document then apparently he didn’t forge it, so we’ve returned to the basic situation.

So the Gemara says: “Returning to the text itself: Rav Huna said in the name of Rav: One who admits to the document he wrote need not validate it. Rav Nachman said to him: ‘Thief, thief—why do you need this? If you hold like Rabbi Meir, say: the Jewish law follows Rabbi Meir.’” Meaning, “You thief, why do you need this?” “If you hold like Rabbi Meir, say: the Jewish law follows Rabbi Meir.” He said to him: “And how else could the Master hold?” How could one say otherwise? It’s obvious that I hold like Rabbi Meir. He said to him: “When they come before us for judgment, we say to them: Go validate your documents and then come down to judgment.” Meaning, he says to him: one who admits to the document he wrote indeed must validate it. The give-and-take here really isn’t entirely clear. What does “And how else could the Master hold?” mean? So why indeed does Rav Huna answer that question? Right. Why doesn’t he just say plainly: “the Jewish law follows Rabbi Meir”? He answers with a question. He dodges it, yes, he dodges it. He doesn’t answer, basically, right? There’s no answer here. “And Master, what do you think?” I think it is an answer. It’s an answer because he’s basically saying what I wanted to say. Look—sometimes you can rule like Rabbi Meir against the Rabbis because of various rules of decision, “the Jewish law follows Rabbi Meir against a colleague,” I don’t know, there are all kinds of such rules, and here I rule like Rabbi Meir because it is impossible to say otherwise. The words of the Rabbis are astonishing exegesis. Yes. Come on—“one who admits to the document he wrote need not validate it”—how can one say otherwise? I’m not ruling this because of Rabbi Meir’s authority, or because there is one rule of decision or another, but because it cannot be otherwise; the other opinion is baffling. Even if you tell me that it is the Sages’ opinion—and by the way, it could be that Rav Huna said in the name of Rav—he perhaps learns the dispute of Rabbi Meir and the Sages like one of the options that were rejected in the previous part of the passage, and not as though they disagree about this case. Because how could anyone disagree about such a thing at all? It seems so logical to him.

But Rav Nachman, who learns the dispute as in the conclusion of the previous sugya, and says that Rabbi Meir and the Rabbis disagreed precisely on this question, says to Rav Huna: then why don’t you simply say “the Jewish law follows Rabbi Meir”? He didn’t understand. Rav Huna was saying: this can’t even be the tannaic dispute. It is so obvious that one who admits to the document he wrote does not need to validate it. “One who admits to the document he wrote must validate it”—he says—that’s utterly absurd. What does “one who admits to the document he wrote must validate it” mean? You, the borrower, agree that… When the borrower says “forged,” he does not agree, so I understand why it has to be validated. When the borrower… he himself also admits that the document is validated exactly like I do, so it has to be validated? There’s no logic in that whatsoever. Of course, there is support—but we’ll talk about it in a moment—but that is basically what Rav Huna is claiming. Rav Huna says: it can’t be; there is no other opinion; there cannot be any other opinion. I think—I didn’t check too much in the commentators here—I’d even be inclined to say that Rav Huna does not accept that on this point the Sages disagree. Rav Huna says this is everyone’s opinion. That’s why this is what he answered Rav Nachman. “And what do you think? Is there someone who disagrees with this at all? What do you think?” So Rav Nachman says to him: no, I think differently. Then why doesn’t Rav Nachman himself say: no, I rule like the Sages? He said: we are accustomed otherwise. Yes, but what did he say? Why didn’t he say: “we rule like the Sages”? The Jewish law follows the Sages, because they are the majority. Right. And he didn’t say that either. Why not?

No, no, no—he tells of what actually happened in court. And that’s a ruling on this question. And that’s a ruling on this question. Why doesn’t he say—so Rav Nachman, you yourself attacked Rav Huna, right? Fine, so why don’t you yourself say “the Jewish law follows the Rabbis”? Why do you go back and say, “No, no, it must be validated,” which is basically what he says. No, no—if we tell him, if we tell him to validate. What do you mean “tell him”? Say “the Jewish law follows the Sages.” Why are you telling me “it must be validated”? The same question he asked Rav Huna—what does he want? Because if Rav Huna answered him with a substantive answer, then Rav Huna is saying: I do not even accept that this is a dispute among the Tannaim. There can’t be anyone who says otherwise. Obviously one who admits to the document he wrote need not validate it, because if everyone agrees that the document is validated, then who needs to validate it? Rav Nachman says to him: absolutely not. Not everyone agrees; there is room for the opinion that one who admits to the document he wrote still must validate it. Consequently, the dispute of the Tannaim can indeed revolve around this. The Sages say one thing and Rabbi Meir says another. And now of course I’ll also tell you that I rule like the Sages—but in order to tell you that, I first have to explain to you that such a dispute is possible at all. And therefore what Rav Nachman is saying here is not simply “I say the Jewish law follows the Sages,” because Rav Huna denies that there is even such a thing as “the Sages” in this sugya. He says everyone agrees. So Rav Nachman says to him: what are you talking about? Not everyone agrees; there is reasoning to say not like you. There is reasoning to say not like you, and the Sages disagree with Rabbi Meir exactly on this point, just as the conclusion of the previous sugya indeed concluded. And then of course Rav Nachman says, and I rule like the Sages. That could perhaps be said in one shot. But that is only a consequence. Therefore Rav Nachman does not simply say “I rule like the Sages.” First he says: this is reasonable; and from there you can roll the whole carpet forward—then obviously the Sages disagree with Rabbi Meir on whether validation is or is not required, and then obviously the Jewish law follows the Sages. There’s no need to say it. If there is a dispute between Rabbi Meir and the Sages, the Jewish law follows the majority; the Jewish law follows the Sages. What Rav Nachman had to justify to Rav Huna was not that the Jewish law follows Rabbi—because Rav Huna does not accept that there even are such rabbis here. Rav Nachman had to explain to him the very possibility of such an opinion. “What do you want from me? This is an everyday occurrence; this is what we actually do.” Not only is such an opinion possible; we also actually rule that way in Jewish law.

Now the question that Tosafot asks is: why, really? Could it be that Rabbi Meir sees here migo as “why would he lie,” whereas the Sages relate to it as argumentative force? Because he seems to be saying: this is the most logical, the most plausible thing; I don’t need any mechanisms in order to understand what really happened here, what he claimed. He agrees, he admits the document—so I don’t need these formalistic games. Why does that relate to argumentative force and “why would he lie”? No, I agree that this is probably Rav Huna’s reasoning, but why does that relate to argumentative force and “why would he lie”? Because the approach that says it needs validation takes what the borrower says as some kind of migo in the borrower’s favor, and therefore if he validates it the borrower is believed. Fine, but whether that migo is argumentative force or “why would he lie,” what difference does it make? Migo, however it works, works in the borrower’s favor, and therefore the lender has to validate it. We’ll see in a moment, we’ll see in a moment. But I’m saying that this is the meaning of the exchange between Rav Huna and Rav Nachman. Basically, in the subtext—even though the sugya doesn’t state it explicitly—in the subtext they reopen the question: what exactly are Rabbi Meir and the Sages disagreeing about? That is how I understand it, at least. Rav Huna does not accept that the dispute is about this; he returns perhaps to the option of life-threatening danger that was rejected in the previous sugya. He says: that can’t be. The clear reasoning is that one who admits to the document he wrote need not validate it. The case Rav Nachman brings is a different case, because he says: before you even come to say anything—before I hear the borrower—I ask the lender to go and validate the document. It doesn’t matter whether the borrower admitted or not admitted; you always have to validate. In other words, one who admits to the document he wrote still must validate it. Before you even get into the question whether the borrower admitted or didn’t admit, there is an enactment requiring validation of documents, and you have to validate. That’s all. But really that is just another way of saying that one who admits to the document he wrote must validate it. No, he isn’t escaping it, because he says one who admits to the document he wrote must validate it. Otherwise, if he didn’t say that, he couldn’t have said what he does say either. Right. So there you go.

So I think that what lies behind this debate between Rav Huna and Rav Nachman is the question whether the dispute of Rabbi Meir and the Sages really is on this question. Rav Huna would claim not, and therefore there is no question how he rules like a solitary opinion against the majority. No—he thinks everyone agrees with him. It can’t be otherwise. So what is their dispute then? Maybe life-threatening danger, what we discussed. Rav Nachman says: what are you talking about? There is also logic on the other side. You can also say that one who admits to the document he wrote must validate it, even though it really does look strange to require the other party to validate the document when both sides admit that the document is valid. Yes, it’s sort of a strange thing. They say to him: no, it’s not strange, because there is a migo and everything we discussed. And therefore such an opinion exists. Okay? And once such an opinion exists, then that is the dispute of Rabbi Meir and the Sages. And once it is the dispute of Rabbi Meir and the Sages, we rule like the Sages because they are the majority, and therefore the Jewish law is that one who admits to the document he wrote must validate it. That is basically what lies behind this discussion.

Maybe, though, he wants to say that this is something formal, that no matter what the logical claims are, we have an enactment of the Sages that a document must be validated; no matter in what situation, the document must be validated. That’s why he gives this case. Wait—but why? Why? If I admit it, then why validate? That’s how the Sages enacted it—it’s the order of judicial procedure. Since when do the Sages enact something so foolish? What? What kind of procedure is that? You have to explain it somehow. I don’t want to hear at all—I don’t even want to hear “why, why, why?” There is no logic in it whatsoever. There is no logic in it whatsoever. After all, if I admit, why should he have to validate? Would the Sages enact that even though I don’t owe you one hundred shekels, I should pay you one hundred shekels? What? Why? What is this example he gives? It’s not an example; it’s a manner of speaking. He means that you really don’t have to examine at all whether the borrower admits or does not admit. The lender has to validate the document. But I claim that this is a result of what he says; it’s not the reason. You’re saying that this is his rationale, and I’m saying no—that’s the result. He is basically saying: one who admits to the document he wrote must validate it. That’s what he’s saying. The result is that I don’t care whether the borrower admitted or didn’t admit; validation is required. Okay? That’s the point.

Now the claim is that in the end we rule according to the conclusion of the previous sugya and like Rav Nachman here. The Jewish law follows Rav Nachman in monetary law, and therefore we rule that one who admits to the document he wrote must validate it. Therefore, first, clearly there is logic to it—it is even ruled that way in Jewish law. Second, that is apparently the opinion of the Sages, and on this Rabbi Meir and the Sages disagreed. Okay? And that is how we rule in Jewish law.

Now about that we’re still going to return a bit to Rav Nachman’s wording. Maybe I’ll already introduce it here. Those of you who saw the Avi Ezri—so I’ll say it here already. There is room to hesitate about the nature of this enactment of validation of documents. Did the Sages give the borrower permission to claim “forged,” and therefore documents require validation? Or in other words, only if the borrower demands validation will the lender have to validate. But if the borrower does not demand validation, then there is no need to validate? Or must one validate a document—without that it is not a valid document—independent of the borrower’s demands? Although of course if the borrower admits, and doesn’t say “repaid” but simply admits that the document is valid, then that itself will count as the validation. A litigant’s own admission is like one hundred witnesses; it’s like validating witnesses. I have no problem. Okay? So where would the difference be, apparently? There would seemingly be no difference. Because in any case, in any case—it’s true that the borrower, say, a borrower who claims “repaid,” is really not saying “forged.” Right? He says “repaid.” According to the second formulation, it comes out that here the document is valid not because the borrower validated it, but because here the enactment requiring validation of documents was never triggered, because the borrower is not demanding validation. The borrower isn’t saying “forged.” When did we obligate the lender to validate? When the borrower demands of him, “validate the document,” or says that the document is forged. Right? If the borrower does not demand that of him, then the basic Torah law remains in place, namely that a document appearing before me does not require validation. So when the borrower says “repaid,” in effect he is admitting that the document is valid. So the document does not need validation. Why, then, is the document valid in this situation? Is it because the borrower—wait—is it because the borrower validated it, through a litigant’s own admission, the borrower validated it? Or does the borrower merely agree that it is? Or no—rather, because when the borrower doesn’t say “forged,” the enactment of the Sages obligating the lender to validate was never stated. So we return to Torah law, according to which a document presented before us is considered valid; we do not suspect forgery. Only if the borrower demands “validate the document” or claims the document is forged did the Sages enact that the lender would have to validate it. Do you understand the difference?

So in any case, it comes out that when the borrower claims “repaid,” in principle the document is fine. Only he has a migo, and therefore perhaps he can contend with the document. But in principle the document is a valid document. The question, though, is why it is valid. Here there are two possibilities. And that depends on how we understand the enactment requiring validation of documents. If we understand the enactment as saying, in effect: no, the document is not a document until you validate it, no matter what the borrower says—right? Although in this case too, if the borrower knows the document is a valid document, there’s no problem—fine, he admits, so there is no conflict. But if he admits and says “repaid,” then it’s no longer like that. And if he admits and says “repaid,” then this basically means: you do not need to validate the document, so now we have a validated document and I claim “repaid” against it. Now we have to discuss what wins. Okay? By contrast, if I understand that the enactment requiring validation of documents exists only… Well, he doesn’t remember for a moment what the first option was that you said. Only the second one, only the second one, only… Only when he claims “forged,” then… Only when—no, that’s what I said earlier. The first option is that they gave the borrower permission to claim “forged.” Exactly. Okay. And the second was that it was added as part of the process, depending on the borrower’s demand. A third option is… No, no, no, no, no. Two. The first and second options are the same thing. Yes. The first: they gave the borrower permission to claim “forged.” That’s the same as the rule that one always validates the document, no matter what the borrower says or doesn’t say, one always validates the document. You don’t exact payment from Shimon until the document is validated. It’s part of הדין—the legal procedure. Or do we validate the document as a result of what the borrower… If the borrower demands and says “in my opinion the document is forged; I claim the document is forged,” he has the right to demand validation from the lender. You mentioned another option, that this basically enables the borrower… That’s the same one. That’s the same one. It enables the borrower to claim forged—that’s the same one.

According to this, he is essentially demanding that there be proof. What? So I’m saying: apparently there is no difference between these two options. Why? But you didn’t say the second half. Yes, the second half: that if it’s a demand as part of the legal process, then when the borrower… so when the borrower claims “repaid,” then the document is a valid document not because the borrower admitted and validated it with his admission. The document is a valid document because no validation is needed for such a document. As long as there is no demand from the borrower to validate the document, then it need not be validated. So the law of documents says that this document is a valid document—not because the borrower validated it, but because such a document is valid. Did you understand? Okay? Why did the enactment of the Sages begin at all? Exactly! So then it never needs to reach the point where there is a litigant’s admission here. Yes. Therefore, for example, in such a situation, when the borrower claims “repaid,” he has no “mouth that prohibited,” because he did not validate the document. The document stands as valid; he merely did not demand that it be validated, but he is not the one who validated the document. Right? That is not called “the mouth that prohibited.” Right? But if I say that the borrower validated the document by his admission, then if he says, “yes, but I say repaid,” then I have “the mouth that prohibited.” I validated the document; I want to claim “repaid.” So I have “the mouth that prohibited.” That is the Even HaEzel; that is what the Even HaEzel says. So that is the difference.

In principle there is no difference between the two possibilities—in principle. Why? Because according to both possibilities, the same laws come out. Meaning: if the borrower claims “forged,” certainly the document must be validated according to both possibilities, right? If the borrower claims the document is valid and says nothing about repayment, then of course he’ll have to pay according to all possibilities, because he admits and there is no dispute. If he claims “I admit the document but say repaid,” then according to all possibilities the document is a valid document; this is a claim of “repaid” against a valid document. Why? Here there will be a difference in the explanation of why the document is valid, but still according to both it is valid. Either the document is valid because there is validation here, namely a litigant’s admission, or the document is valid because it doesn’t require validation, since if he didn’t claim the document was forged, it doesn’t require validation. So where will there nevertheless be a difference? The difference will be in the question whether this migo is… no, whether this migo is “the mouth that prohibited” or an ordinary migo. In other words, if we understand that the obligation to validate the document exists only at the borrower’s demand, but if the borrower says “repaid” then he did not demand validation of the document, then the document basically stands valid not because the borrower admitted, but because the borrower did not demand that it be validated. Suppose the borrower were silent entirely. The borrower is silent; he does not admit that the document is valid. According to the second possibility there is no problem at all, because as long as he did not say “the document is forged,” there is no need to validate the document; the document is valid. By contrast, if I understand that his admission is what validated the document, then when he is silent, he did not admit, he did not validate the document. Okay? That is a point, that is a practical difference. Okay?

If he is silent, then what do we do? If he is silent, then it depends. If I say that you need to validate the document in any case… you validate it and collect on the document. Exactly, so you validate. But if I say that as long as the borrower didn’t say “forged” you don’t need to validate the document… then what does the lender do? Then he can collect without validating. So being silent doesn’t help the borrower; he gains nothing. Yes, I’m saying—but never mind, I’m not talking about tactics right now, I’m talking about what happens in practice. He was silent—what does that mean? The question is whether validation is required or not required; that is the practical difference. Okay? Could you please go over the silent case again? If the borrower is silent. He doesn’t say “I repaid”; he is silent. He doesn’t say “I never borrowed,” he doesn’t say “I repaid,” he says nothing, he’s mute. Okay? He is silent. I don’t know, he isn’t here. It doesn’t matter right now. I’m saying this: if the conception is that only a claim by the borrower—or when the borrower says “forged”—obligates the lender to validate, then here there was no such claim; he was silent; he didn’t say “forged,” so no validation is needed, and one can collect with the document, okay? Even without validation. But if I say no, no, no—validation is required in any case. Then if the borrower admits, his admission is the validation. Here he didn’t admit; he was silent; he didn’t validate the document. Okay? That is a practical difference. So here without validating you won’t be able to collect. You won’t be able to collect. And if the borrower was silent—is that “the mouth that prohibited”? What I’m saying is: before “the mouth that prohibited,” when the borrower is silent, it has nothing to do with “the mouth that prohibited.” When the borrower is silent, that will be a real practical difference in Jewish law. The question is whether the lender will have to validate or won’t have to validate if the borrower is silent. If the borrower says “repaid,” which is another way of admitting that the document is valid, he says “repaid,” here there may not be a legal difference—we’ll see in a moment—but there will be a difference in how we view the borrower’s migo. Is the borrower’s migo an ordinary migo, or is it “the mouth that prohibited”? Because if he himself is the one validating the document, then he has “the mouth that prohibited”: all the force of the document comes from me, so I’m saying I repaid. So I have “the mouth that prohibited.” But if the document need not be validated because I did not attack the document, I didn’t say it was forged, then I have a migo: I could have said the document was forged. But that is not “the mouth that prohibited.” It’s just a migo. Okay?

Okay, but do we still have “What is your document doing in my hand?” There is a problem here of “What is your document doing in my hand?” We’ll see in a moment. Wait, sorry, I’m just a few sentences behind every time. Regarding the migo and “the mouth that prohibited,” could you say it again? Again. If the borrower claims “repaid,” right? Then in principle he could have said “forged.” So he has a migo. Right? But after the enactment requiring validation of documents. He can say “forged,” and therefore obviously it requires validation. And according to the enactment, the one who says that if he needs to validate the document, the one who admits isn’t related… What? That’s on the side of the one who says one who admits to the document must validate it. Right. Right. So I’m saying this: if after the enactment the borrower says “repaid,” then basically the borrower is not attacking the document. He isn’t saying the document is forged. Right. So if the obligation to validate documents exists only because of an attack by the borrower, then here you don’t need to validate the document at all, right? Because the borrower didn’t attack the document; the borrower says “repaid.” Ah, right. So the document doesn’t need to be validated. Right. But then it comes out that when the borrower says “repaid,” he has no “mouth that prohibited”; he has only a migo. Because the force of the document doesn’t come from his admission. The force of the document stands on its own. You had the ability to attack it. As long as you didn’t attack it, the document stands; you did not validate the document. The document stands on its own. You have a migo that you could have said “forged,” in which case you would have attacked the document. But that is an ordinary migo; it is not “the mouth that prohibited.” Yes. But if the claim is that in any case you have to validate the document, and when the borrower admits, the admission constitutes validation of the document—“a litigant’s own admission is like one hundred witnesses,” okay? Then here, when I say “repaid,” I have “the mouth that prohibited,” not merely a migo. Because after all, all the force of the document derives from the fact that I validated it, and I’m also saying that I repaid; “the mouth that prohibited is the mouth that permits.” So the difference between these two conceptions comes to expression in two cases. If the borrower is silent, it’s an actual legal difference: whether you need to validate or don’t need to validate. That’s when the borrower is silent. When the borrower says “repaid,” the difference is in the question whether what stands in the borrower’s favor is “the mouth that prohibited” or simply migo. We’ll see in a moment whether that also makes a legal difference. But for now it’s just a difference in how I define the borrower’s migo—whether it’s an ordinary migo or “the mouth that prohibited.” Okay? Are you with me? Yes, yes. If—wait, wait—if the borrower is silent and in any case the document must be… validated. If the borrower is silent, then the practical difference between the two possibilities is a legal difference: whether the document must be validated in order to collect, or whether one can collect without validation. But if the borrower says “repaid,” not silent, then in principle the borrower has a migo, but the question is whether that migo is just migo or “the mouth that prohibited.” It is not certain that there is a legal difference here, but there is a difference in how I define the migo. And afterward we’ll see whether there is a legal difference or not, but for now it’s just a difference in the question of what kind of migo stands in the borrower’s favor.

Okay. Now we come to Tosafot. Tosafot says—Tosafot on the words “one who admits”—and he challenges Rav Huna as follows: “One who admits to the document he wrote need not validate it. And if you say: what is the reason that he is not believed through a migo, since if he wanted he could say ‘forged’?” In other words, when I asked you which opinion seemed to Tosafot the more understandable one—what opinion is he attacking? He is attacking Rav Huna. The understandable one is Rav Nachman. Notice—that’s a little strange. Rav Nachman, who says it must be validated, is the obvious one; that one is clear. Why is he clear? Because he has a migo. Tosafot says why he is clear. And that’s what he asks against Rav Huna: you, Rav Huna, who said that validation is unnecessary, how do you ignore the fact that the borrower has a migo? In other words, from this I understand how Tosafot understood Rav Nachman. Rav Nachman, who says it must be validated, says so because of the migo. And therefore Tosafot says: wait, you, Rav Huna, how do you ignore the fact that the borrower has a migo? In other words, according to Tosafot the self-evident thing is the migo. Whoever has a migo—that’s obvious. Notice that when we read the Gemara, we read it the opposite way. Rav Huna said—why didn’t Rav Huna say “I rule like Rabbi Meir,” but rather “one who admits to the document he wrote need not validate it”? Because Rav Huna wanted to say: obviously it need not be validated. No one can disagree with that; even the Rabbis don’t disagree with it. Right? And Rav Nachman adds: no, that’s not obvious; there’s also another opinion; there’s room for another opinion. Tosafot turns the whole thing upside down. Tosafot says the opposite: Rav Nachman is the obvious one; Rav Huna, I don’t understand at all how such an opinion can exist. That’s really the reverse of how we read the Gemara.

Right, exactly—that’s what Rav Huna doesn’t present as the opinion in the Gemara, meaning the opinion of Rabbi Meir, while Rav Nachman is the Sages? Yes. It’s hard to know who is the obvious one and who needs explanations. Okay. So I’m saying that in the Gemara it seems that Rav Huna is the obvious one, and Rav Nachman offers an explanation why his opinion is still possible. Yes. Right? Right. But Rav Huna is basically claiming that his position—what do you mean?—what I’m saying is self-evident. After all, Rav Nachman also does not claim that Rabbi Meir agrees with him. Rav Nachman at most says that there is a dispute among Tannaim, which means Rav Nachman certainly does not say that what he thinks is self-evident. Right? Rav Nachman only says that there is a tannaic dispute about it, and I rule like the Sages. Rav Huna claims there is no tannaic dispute about it; it is self-evident. So if there is anything here that is self-evident, it is specifically Rav Huna’s opinion—at least from the Gemara. Rav Nachman’s opinion is also possible, but it certainly isn’t self-evident. Tosafot says: what are you talking about? It’s all the reverse. Rav Nachman’s opinion is the only one that could make sense—that is self-evident. How can Rav Huna possibly say what he says? Because Tosafot says the following: since there is a migo here—and I remind you again, according to Tosafot, “the mouth that prohibited” is migo. Tosafot constantly calls “the mouth that prohibited” migo; we’ve seen this all along. In other words, Tosafot means “the mouth that prohibited.” Since the borrower has “the mouth that prohibited,” “the mouth that prohibited” overcomes everything. If there were witnesses, maybe not—but notice, the borrower says “repaid.” Against the claim “repaid,” there are no witnesses. The witnesses do not testify that he didn’t repay; the witnesses testify that there was a loan. What stands against the claim of repayment? The document. Right? “If your document is in my hand, what is it doing there?” Against that there is “the mouth that prohibited” of the borrower. Tosafot says that “the mouth that prohibited” certainly overcomes such a presumption. “The mouth that prohibited” is almost the strongest principle there is. We saw that there are even opinions saying it overcomes witnesses. “The mouth that prohibited” is the strongest principle there is. Therefore Tosafot says: wait, then how can anyone disagree with Rav Nachman? Obviously one who admits to the document he wrote must validate it—I have “the mouth that prohibited.” The fact that there is a document—fine, I respect the document, the document exists, everything is fine, it isn’t forged—but I repaid. What? If they validate the document, then it’s as though there are two witnesses against “the mouth that prohibited,” and then that can overcome it. No—then there is no “mouth that prohibited.” If they validate the document, then there is no “mouth that prohibited.” Yes. The two witnesses do not contend with “the mouth that prohibited”; that’s what I said earlier. “The mouth that prohibited” says I repaid; the witnesses do not say I didn’t repay. The witnesses only validate the document. Once I have witnesses who validate the document, then I have no “mouth that prohibited,” because I am not the one who validated the document; and therefore I am also not believed to disqualify it. Okay? Or to say “repaid,” it doesn’t matter.

So Tosafot really turns the whole picture upside down and says: wait, there is “the mouth that prohibited” here. And “the mouth that prohibited” overcomes any presumption whatsoever. Therefore Tosafot says that Rav Nachman’s opinion is self-evident. Rav Huna’s opinion is not clear to me. Okay? So that really is a kind of reversal of the picture. And that brings us into the question whether this really is “the mouth that prohibited” or whether it is migo. But for Tosafot that makes no difference. So I’m saying more than that: according to Tosafot, not only is there such a thing, Tosafot defines this case itself as “the mouth that prohibited.” Because Tosafot says “migo, since if he wished he could have said none of this ever happened”—that is “the mouth that prohibited.” Right? If I could have said “none of this ever happened, there was no loan at all, this is a forged document.” That is basically saying “none of this ever happened.” So a migo of “forged” is a migo of “none of this ever happened.” Okay, so “none of this ever happened” is “the mouth that prohibited,” and according to Tosafot this migo really is “the mouth that prohibited.” Tosafot, consistently with his view, is clearly talking here about “the mouth that prohibited,” and therefore it is clear why he reverses the picture. Because when the borrower has “the mouth that prohibited,” how can it be that he does not overcome the lender? How can there be an opinion like Rav Huna, that the lender need not validate the document, when the borrower has “the mouth that prohibited”? That is Tosafot.

But according to Rashi, after all, we saw that in Rashi only a migo of “if he wished he could have remained silent” counts as “the mouth that prohibited.” Here he can’t remain silent, because they’re producing a document against him. What do you mean, he can’t be silent here? He can say “the document is forged,” he can say something—but to say “none of this ever happened” he can’t. According to Rashi, if it isn’t a migo of “if he wished he could have remained silent,” then it isn’t “the mouth that prohibited.” Right? Therefore according to Rashi, what this person has here is only a migo; it is not “the mouth that prohibited.” Therefore Rashi is not bothered by Tosafot’s question. From Rashi’s perspective, it is not self-evident that Rav Nachman is right. Right? Because according to Rashi this is migo, migo against the presumption of “What is your document doing in my hand?” Migo against a presumption—there is room for dispute among Amoraim, among Tannaim; that is not self-evident. Tosafot sees this as “the mouth that prohibited.” “The mouth that prohibited”—he cannot understand how there can be another opinion. Rashi does not see it that way. And by the way, you’ll see that Rashi continues here consistently all the way through with his own view. After all, in Tosafot’s third explanation—which he rejects—what does he bring there? “What is your document doing in my hand?”, right? That is Rav Huna’s explanation. He says that cannot be the explanation. Tosafot says it cannot be that this is the explanation. Why can’t it be? He proves it from the Gemara later. But what is the idea—why can’t it be? Because this is “the mouth that prohibited.” Such a presumption cannot stand against “the mouth that prohibited.” But didn’t I tell you that Rashi, here in the sugya explicitly, explains exactly that way? Tosafot says this cannot be; that’s exactly what Rashi says. Why? Because according to Rashi, what the borrower has is not “the mouth that prohibited.” So if what stands against him is “What is your document doing in my hand?” then—what? Rashi says explicitly: “and we do not say ‘the mouth that prohibited.’” Again? Rashi says explicitly that the witnesses signed on the document, and still the borrower is believed to say “I repaid,” and we do not say “the mouth that prohibited.” At the beginning of Rashi, when he explains Rav Huna? No: “and we do not say here, ‘the mouth that prohibited is the mouth that permits,’ but here ‘the mouth that prohibited is the mouth…’” We can read it. “The mouth that prohibited is the mouth that permits” is not effective. But not because it isn’t “the mouth that prohibited”; rather because there is a document against him. Ah, okay. You can explain it either way. Right, I agree. I agree. But in light of what I said, that Rashi too has to be read that way. I’m saying only that this Rashi by itself doesn’t yet say what… But I’m saying that this whole analysis—throughout, we see that it is according to their respective methods; they go according to their methods. This really threads through the whole sugya here, through all the parts we’ve seen until now.

So really Rashi, consistent with his view, isn’t bothered at all by… He brings Tosafot’s third explanation; Tosafot says it can’t be; he has proof from the Gemara. With the proof from the Gemara, Rashi will manage in a moment—I’ll explain how. But Tosafot says it can’t be, not because of the proof from the Gemara. Tosafot says it can’t be because “the mouth that prohibited” overcomes everything. “The mouth that prohibited” eats everything. Therefore it can’t be. The proof from the Gemara is just supporting evidence. Rashi isn’t bothered by that. Rashi really gives this very explanation, not only that it can be, but that it is the explanation. Rav Huna really says that it need not be validated—why? Because of “What is your document doing in my hand?” Ah, but there is “the mouth that prohibited” against it? No, not so. There is migo against it, not “the mouth that prohibited.” And migo is not enough; in Rav Huna’s opinion, migo is not enough to overcome. In Rav Nachman’s opinion, yes. That is the dispute between them. Okay? So all the way through, it’s according to their methods.

I’ll just remind you of one more thing. We once saw that Beit HaLevi claims that even according to Rashi, “the mouth that prohibited” is like Tosafot. Yes, Rashi also does not disagree with Tosafot. Everything Rashi said—that “the mouth that prohibited” is only a migo of “if he wished he could have remained silent” and not a migo of a stronger alternative claim—that is only according to Rabbi Yehoshua’s view. Ah right, we saw that. But for Jewish law we do not rule like Rabbi Yehoshua. For Jewish law, so Beit HaLevi claims, even Rashi agrees that a stronger alternative claim is “the mouth that prohibited.” Okay, that’s Beit HaLevi’s claim. Not all the later authorities (Acharonim) learned that way, or at least they don’t write that way. I don’t know, I don’t remember whether anyone said it explicitly, but the simple assumption of the later authorities (Acharonim) is that Rashi disagrees with Tosafot, that Rashi defines “the mouth that prohibited” differently. What? That a stronger alternative claim is… that a stronger alternative claim is not “the mouth that prohibited” according to Rashi. But Beit HaLevi says it is “the mouth that prohibited,” exactly as Tosafot says. And everything Rashi said—that a stronger alternative claim is not “the mouth that prohibited”—was only according to Rabbi Yehoshua, but for practical Jewish law he agrees that it is “the mouth that prohibited.” In the sugya here, in my opinion, there is proof against Beit HaLevi. What I just said. Because here Rashi says that the presumption “What is your document doing in my hand?” is effective. That is what causes Rav Huna to say that the document need not be validated. But after all, opposite it there is “the mouth that prohibited.” No—opposite it there isn’t “the mouth that prohibited.” You have to say that there isn’t “the mouth that prohibited” opposite it, and here we are talking about practical Jewish law; this is not according to Rabbi Yehoshua, this is practical Jewish law. So you see that according to Rashi, such a case is not “the mouth that prohibited” even for practical Jewish law. He didn’t say it only according to Rabbi Yehoshua. Okay? You have to keep your head a little, but I’m saying that these sugyot really sit on the same string; the positions here truly thread through the whole sugya.

Okay, maybe I didn’t understand… What? Maybe I didn’t understand the thread. You mean the entire approach of Rashi—that “the mouth that prohibited” applies only to something that comes through a claim—that is only according to Rabbi Yehoshua? That’s what Beit HaLevi says. Ah, according to Beit HaLevi. But everyone else generally learns Rashi not that way, that he has a fundamental disagreement with Tosafot even for practical Jewish law. And here it seems to me there is good proof of that—that is, against Beit HaLevi. Because here we are not dealing with Rabbi Yehoshua’s position; we are dealing with practical Jewish law. And for practical Jewish law Rashi seems to say that such a thing is not called “the mouth that prohibited.” Because if it were “the mouth that prohibited,” then you couldn’t say “What is your document doing in my hand?” No, but maybe you could also say that it isn’t retroactive. What? That it isn’t retroactive. Once he said “I repaid,” he already admitted that the document is valid. That’s basically… No. But in Rashi we saw that “the mouth that prohibited” is really “the mouth that prohibited.” We even say it retroactively. Because “the mouth that prohibited” means: don’t make use against me of power you got from me. Tosafot says “the mouth that prohibited” is migo. But Rashi says “the mouth that prohibited” is one of the last two explanations I brought—the third and fourth. Don’t use against me power you got from me, and then it makes no difference whether it is retroactive or not. That’s Machaneh Ephraim that we saw, and others. Okay? I understand, but check, because in that Rashi… So, uh… We need to go deeper into that Rashi of “the validators do not validate it.” What? We need to look more deeply, like you read it earlier. Until Rashi says that we don’t say “this is the mouth that prohibited and the mouth that permits” because it’s not “if he wished he could have remained silent.” And then he explains something else, basically, because here he says no—because he already said it was valid, so the document is validated. That basically does say that it’s a retroactive migo. No, it’s not a retroactive migo. He said it’s valid, therefore the document is validated. That’s obviously true. Only now he has “the mouth that prohibited” against that. But “the mouth that prohibited” doesn’t help against the force of the document. Why not? Because this is not “the mouth that prohibited”; it’s migo. The validation of the document is validation. And here too it’s not retroactive migo, because retroactive migo is only when there is a time gap between the statements. If he had validated the document and a day later said “repaid,” that would be retroactive migo. But if he says “repaid,” he says it in the same utterance; he did not validate the document separately. When he said “repaid,” included in that was also the validation of the document. Such a thing is not retroactive migo. Rashi here does not mean retroactive migo. He only means: his validation made the document into a valid document. You want us to believe him that he repaid because he has a migo? Fine—but there is the presumption of “What is your document doing in my hand?” Validation is superfluous, so to speak. Either superfluous, or it’s what we discussed earlier. Either superfluous or it was done. Right. And also Rashi—“why don’t we say ‘this is the mouth that prohibited and the mouth that permits’ because it’s not a migo of ‘if he wished he could have remained silent’?” Rather he explains that it’s because it’s not—he doesn’t explain at all, really. No, he doesn’t explain at all. He says it’s not “the mouth that prohibited,” period. But still there is a migo. Why doesn’t the migo help? Because of “What is your document doing in my hand?” Here too, by the way, he doesn’t bring “What is your document doing in my hand”; that appears in another comment. He said “I repaid,” and he is not believed because the document is in the lender’s hand. Ah yes, that Rashi, sorry, right. Because that Rashi was on the previous sugya, not the Rashi on our sugya. Yes, so here it says: “and we do not say here ‘the mouth that prohibited is the mouth that permits,’ for once he said it was valid, the document was already established; and when he says ‘I repaid,’ he is not believed, because it is in the lender’s hand.” What does that mean? You don’t say here “the mouth that prohibited is the mouth that permits” because this is not a migo of “if he wished he could have remained silent.” But there is still a migo, and it is not “the mouth that prohibited.” Right—but there is a presumption against it, “What is your document doing in my hand?”

So, returning to Tosafot: Tosafot asked, in short, what is Rav Huna’s opinion? In short, according to Rashi the picture is very clear. The dispute between Rav Nachman and Rav Huna—between Rav Huna and Rav Nachman—is over which prevails: the presumption “What is your document doing in my hand?” or migo. This is not “the mouth that prohibited”; it’s migo, and the dispute is which is stronger. Like Tosafot on 19a, the upper Tosafot beginning “There is a presumption that a person…” where it says there too that apparently we do not say migo in the face of a presumption. Again, it’s a dispute of migo against a presumption—when we say it and when we don’t. That is, according to Rashi, the dispute between Rav Nachman and Rav Huna. But Tosafot, who says there is “the mouth that prohibited” here, has a problem. Since if there is “the mouth that prohibited,” it should have overcome the presumption of “What is your document doing in my hand?” Therefore he says: how can it be that Rav Huna says validation is unnecessary? And then he brings three explanations. He rejects the third one—the third is Rashi’s, which he rejects. And there are two earlier explanations.

The first explanation: “One can say that perhaps the borrower is afraid to say ‘forged,’ lest they contradict him, and therefore there is no migo.” What does that mean? A migo of brazenness? “The borrower is afraid to say ‘forged,’ lest they contradict him, and therefore there is no migo.” Is that a migo of brazenness? There is some connection. There is a connection. But it is not the same thing as a migo of brazenness. Notice why not. Because he is not afraid of the lender. A migo of brazenness is a good migo. Say, for example, a lender comes to me and claims money from me and I say “repaid,” and I have a migo because I could have said “none of this ever happened,” not against a document—I could have said “none of this ever happened.” Okay? Why is that a problematic migo? Because he did me a favor; I’m embarrassed to say “none of this ever happened.” But obviously if I said “none of this ever happened,” that would be an excellent claim; it’s just uncomfortable for me to say it, and therefore it’s not clear that it’s a better claim than the one I’m making now. Right? Here too, if I were to say “forged,” it’s not clear that that would be an excellent claim; I might be contradicted. My fear is a real fear; it’s not embarrassment. That claim is simply a weaker claim, less legally effective—not a claim that is merely less pleasant for me to make. No, but I’d be naive not to be worried. What? No, but the concern is well-founded—the concern that someone will prove it, that they’ll validate his document and then it will turn out I did something foolish when I said “forged.” If I had claimed “repaid,” maybe they would have believed me; now I claimed “forged,” and I turned out to be a liar. In other words, this is a migo of argumentative force. No, wait—we’ll get to argumentative force in a moment, but I’m saying that Tosafot is basically saying that in the earlier Tosafot too—the language is different, but there too he could object that witnesses might come… what, the lender… No, but in brazenness, witnesses won’t come and say “you did not repay.” You can’t bring witnesses to say “he did not repay.” No, on “none of this ever happened,” “none of this ever happened.” When he says… But they don’t say that. It’s not a migo of brazenness; that would mean it isn’t a migo at all. But there they call it a migo of brazenness. To say “migo of brazenness” and to say this are not the same thing. This migo is simply not a migo. The claim is not actually a stronger claim, so why are you making it into a migo? A migo of brazenness is a good migo, except that I’m uncomfortable using it. But if I had said it, I definitely would have come out better. There’s a practical difference—for example, with a migo of brazenness, if you remember, we saw that I have argumentative force even though there isn’t the “why would I lie” rationale. Right? In the end I had the ability to win. Here it may be that there is no argumentative force either. Yes. Yes, because in truth there is no migo here. Who says I would have won? If I had said “forged,” he might have brought witnesses and validated it, and then I really would not have won. “Migo as argumentative force” means, after all, that if I had made the other claim I would have won, so I have an advantage in this claim too; I am considered the possessor. But here Tosafot says: absolutely not. If I had said “forged,” he might have brought witnesses and validated it, and then I would not have won. So in effect I am not the possessor, I have no argumentative force. Do you understand? That is exactly the difference. If this were a migo of brazenness, then a migo of brazenness would give me argumentative force. The only problem there is with “why would I lie.” But this migo is not a migo at all. Therefore it may be that it gives me no argumentative force either. That is what Tosafot says. That’s why I asked you whether here there is argumentative force or not, and I meant: think whether this is a migo of brazenness or not. And I claim: it is not a migo of brazenness. Certainly not. It is simply a bad migo, says Tosafot. A migo of brazenness is a good migo, except that it’s uncomfortable for me to use. “And what is the reason that he is not believed through a migo”—and this is the answer to why he is not believed—because it isn’t a migo. Right, because it isn’t a migo. Not because it is a migo of brazenness. If it were a migo of brazenness, then it would tell me why he isn’t believed: because he lacks the “why would I lie”; he only has argumentative force, and for some reason perhaps you specifically need the “why would I lie.” But that is not what Tosafot says here. Tosafot doesn’t say this is a migo of brazenness. Tosafot says this is not a good migo. So there is no migo here. Yes, and that is Rav Huna’s claim. Therefore Rav Huna says: why should I care that the borrower has a migo? The lender does not have to validate the document; this migo is worth nothing. Maybe if he had something—but he doesn’t. Okay?

And notice: the lender need not… this migo is worth nothing, right? But I can still ask why the borrower doesn’t have to validate the document—sorry, the lender. There is an enactment requiring validation of documents. Wait—you’re saying that if the claim of “forged” would mean he needs to validate the document, his claim here is that he has no migo. Now he isn’t believed about “repaid,” but what about validation? Because the Rabbis enacted on… no, sorry. Wait, wait—“repaid.” So what? But he still has to validate it. That’s what she’s asking. Why does it have to be validated? Because he answers that the one who admits, by doing so, constitutes the validation. Or alternatively, the second possibility: if I don’t demand validation, then it need not be validated. The same two possibilities we said earlier, right? And Rav Huna son of Rav Yehoshua makes use of the two possibilities we said earlier, but first of all you have to get rid of the migo. Once the migo is gone, now the question remains: okay, and why doesn’t it need validation? Two possibilities: either because the borrower validated it through his own admission, or because it need not be validated as long as the borrower doesn’t demand validation, doesn’t say “forged.” The same two possibilities we said earlier. Okay? That’s Tosafot’s first answer.

But what was Tosafot’s question in the first place? I thought we were here in the question. No, we’re in the answer. What was the question? Tosafot’s question was: how can Rav Huna son of Rav Yehoshua say that validation is unnecessary? After all, the borrower has a migo. “And what is the reason he is not believed through that migo—because if he wished he could have said ‘forged’?” Why is the borrower not believed through a migo that he could have said “forged”? What does “believed” mean? “Believed” here means that you cannot collect with the document as long as you haven’t validated it. Why don’t we require the lender to validate the document, since the borrower has a migo that he could have said “forged”? And Tosafot answers: “One can say that perhaps the borrower is afraid to say ‘forged,’ lest they contradict him, and therefore there is no migo.” Such a thing is not a migo. Okay? So there is no migo for the borrower, and validation is not needed because of one of the two reasons I said earlier, and that’s all. Therefore you collect with the document without validation.

But if that migo we said before isn’t a migo, then isn’t that not “the mouth that prohibited,” which they claim is the approach of the Gemara? It is, because Tosafot’s approach is that “the mouth that prohibited” is migo. They consistently follow their view. After all, Tosafot’s approach is that “the mouth that prohibited” is migo, a strong migo. Right? It’s not “if he wished he could have remained silent”; it’s “none of this ever happened,” simply a stronger claim. Okay, so the explanation overall is like an explanation of migo, the usual explanation—just a stronger migo. I dismiss you right away. Okay? So this migo doesn’t work—obviously. There is no migo. According to Rashi, in fact, this answer cannot work—understand. If Rashi understands—not only does Rashi give Tosafot’s third answer, Rashi cannot give Tosafot’s first answer. Because what does the first answer say? There is no migo. Why is there no migo? Because the second option is problematic. But if it is “the mouth that prohibited,” then it doesn’t matter that there is no migo. After all, I gave the force to this document; I validated it. So believe me also that I repaid. “The mouth that prohibited” is still “the mouth.” If there were “the mouth that prohibited” here, Tosafot’s answer would not help. According to Rashi this is not “the mouth that prohibited,” and that’s why it’s fine. According to Rashi one cannot give Tosafot’s first answer; according to Tosafot one must give it. Tosafot’s third answer—he says it can’t be given; according to Rashi it is called for, and therefore he really says it. But “the mouth that prohibited” of Tosafot means: if I gave all the force to the document, I could have said “forged,” basically. Right. So how can he suddenly say that this migo doesn’t exist at all? Because the claim “forged” is not one I could really make. But that is his claim of “the mouth that prohibited” for purposes of validating it—suddenly he says that this migo doesn’t exist at all. No—he is explaining Rav Huna, who says validation is unnecessary. Right, I know. But on the side of the one who says validation is required, then he says that this migo is a good one. Rav Nachman thinks this migo is good—that’s the dispute. And Rav Huna holds that this migo is not good because “forged” is a risky claim; witnesses could be brought to validate the document, and therefore a person will not make that claim.

How do we see in the Gemara that Rav Huna claims this migo is no good while Rav Nachman says it is good? Not in the Gemara; in Tosafot. Where is the method? In the Gemara we see that Rav Huna says that one who admits to the document he wrote need not validate it. Now the question is why he need not validate it—after all, there is a migo in the borrower’s favor. Why doesn’t the lender have to validate? Tosafot says: because the borrower has no migo. It is a bad migo. Therefore the lender need not validate. And that is Rav Huna’s opinion. And Rav Nachman’s opinion is not merely that it is good; it’s excellent. Right—it is “the mouth that prohibited.” Once it is “the mouth that prohibited,” it even overcomes the presumption of “What is your document doing in your hand?” Therefore according to Tosafot, the presumption “What is your document doing in your hand?” doesn’t play any role here at all. Because if there is a migo, the migo will beat it; this is “the mouth that prohibited.” And if there is no migo, then even without the presumption the lender wins. You don’t need the presumption. Because obviously this is “the mouth that prohibited.” Okay?

So that’s the first answer. “And the commentary explains elsewhere that the reason is that by Torah law no validation is needed, because witnesses signed on a document are considered as though their testimony had already been examined in court; and it is only the Rabbis who required validation when he claims it is forged. But for other claims, such as ‘it was repaid,’ they did not require validation; and so it appears to Ri.” What is he saying? By Torah law you don’t need validation; it’s only a rabbinic enactment that requires validation, right? And they instituted it only when he claims “forged,” not when he claims “repaid.” What is the meaning of that? Why not? What kind of thing is that? All the later authorities here are puzzled. Kovetz Shiurim and Gidulei Shmuel, everyone here asks the same question. Even HaEzel. But we already said this before. “The commentary elsewhere”—not Rashi here. “The commentary elsewhere”—I think I wrote it for you—is Rashbam in Bava Batra. That’s Rashbam in Bava Batra. “The commentary explained,” on the basis of which the continuation follows. So he doesn’t validate? Only when he claims “forged” does he not validate by himself the… Okay, and therefore what? So what? After all, in the end he has a migo. If he had said “forged”—he has a migo? In the other places where he validates, they didn’t require… But why? After all, he has a migo, right? He can say… He claims “repaid”; he could have said “forged.” If he had said “forged” he would have won, right? So why don’t you believe him? No, he wouldn’t have won, because they would have required the document to be validated. No, here that is called winning. And winning means that the lender could not collect without validating. So if I claim “repaid,” I should be believed on the basis of a migo of “forged,” because if I had said “forged” I would have won. What does Tosafot answer here? Why should I care whether it’s rabbinic or by Torah law? In reality, even if it’s rabbinic, if I had said “forged” would I have won? So I have an option to win. Why should I care that it’s an option to win only by rabbinic law? Because in reality he cannot claim “forged.” Why not? Simply because after the enactment requiring validation of documents, he can claim “forged”—certainly he can. This is the second answer. Only in the case of “forged” does Torah law require witnesses? Thus the Rabbis… No, no, no, don’t drag me that far. Right now I’m not getting into the two possibilities I said earlier about the enactment requiring validation of documents. I’m asking in general.

Tosafot says that such a migo doesn’t work. Why? Because even when I would have claimed “forged”… the need to validate the document would only have been rabbinic. And since that’s so, I would have won in court on the alternative claim only rabbinically. A rabbinic victory does not constitute a migo for another claim; only a Torah-level victory does. The question is why. What difference does it make? If I would have won, I would have won. After all, I can prove to you that I’m not lying, because if I wanted to lie I would have made that other claim, on which by rabbinic law I would have won. Do you understand that what is written here is not “why would I lie,” but argumentative force? If it were “why would I lie,” there would be no room at all for this reasoning of Tosafot. If it is argumentative force, one could dispute it, but I can hear such an argument. What? Does that also weaken the migo? Does it make the migo less strong? What do you mean? Tosafot’s second answer makes the migo weaker. No, the opposite—it says this is argumentative force, and there is no “why would I lie.” Right, there’s no “why would I lie,” fine—but that means that the Sages simply did not enact this for “repaid”; they didn’t enact it for “repaid,” meaning that for “repaid” he doesn’t need… no, no, no, wait—you’re already bringing in the Even HaEzel; just a second, I’m not there yet. At this stage, the enactment of validation of documents exists in any case. Okay? If I admit, then of course I admit, but if I say “repaid,” wait, wait, wait—he won’t need validation because of the migo and because of the presumption of “What is your document doing in my hand?” or something else—not because he understands the enactment that way. The Even HaEzel explains it that way. Why not? Tosafot explicitly says there that it is only by rabbinic law that validation was required in the case of “forged,” but for other claims such as “repaid” they did not require validation. Why? That’s Rashi, not Tosafot. Because the fact that they required it in the case of “forged” is only rabbinic, and in “repaid” he has no migo, therefore there too they didn’t require validation. This isn’t yet connected to the Even HaEzel. Right now I’m not yet entering the question why, when I admit, validation isn’t needed. Is it because validation isn’t needed, or because I validated it? Those are the two possibilities that the Even HaEzel reads into Tosafot—but in a moment. What Tosafot is saying here overall is that migo is apparently not “why would I lie,” but argumentative force. Therefore he says: “why would I lie” certainly exists even if the alternative claim is only rabbinic, but argumentative force is absent. Since in argumentative force you want us to grant you the force of the claim “forged,” even in the claim “forged” you don’t really have force. The force is only rabbinic. Now the question is: to whom did the Rabbis give that force? To one who claims “forged” they gave it, to one who claims “repaid” they did not give it. That’s all. Where does this understanding come from, that they granted argumentative force? That is what Tosafot says as an answer. And where does he derive it from? From the Gemara here. Here in the Gemara, how can Rav Huna say that the borrower is not believed—that the lender need not validate the document? You see that the migo apparently does not help him. Why not? After all, he has a migo. Apparently the force the Rabbis gave to “forged” they did not give to “repaid.”

I don’t know where there is migo as argumentative force, with “why would I lie” being something else. I didn’t understand. We looked for an example where only one of them exists. Yes—and we brought a very similar example. The case of “we plead on behalf of” is really parallel to this, of the orphans; it’s really parallel. It’s exactly the same logic. We may even touch on it in the next class, because it comes in here. So that’s what Tosafot says. Now, that is the simple meaning of Tosafot’s language, and indeed this comes out as argumentative force. Above, as I said, there too—“he is afraid to say ‘forged,’ lest they contradict him, and therefore there is no migo”—I said that there above one could perhaps understand it even if it were a migo of brazenness. If the meaning of Tosafot’s first answer were simply that we are dealing here with a migo of brazenness, then I said: fine, but even so it still gives no argumentative force, right? That’s why I said there too this is not a migo of brazenness; it simply is not a migo at all. And here too Tosafot is speaking only on the plane of argumentative force and not on the plane of “why would I lie,” and he says: yes, but here there is no argumentative force because the Sages did not give that force to someone who says “repaid.” Tosafot remains consistent with the conception that we are discussing the plane of argumentative force within migo.

Now Tosafot then rejects Rashi’s explanation, and we’ve already discussed that. By the way, Tosafot brings proof against Rashi from a “trust document.” Later in the sugya—you didn’t see that. We saw it but didn’t go through it. Did you see? A trust document is a document I give you because I trust you. I give you the document before I even received the loan from you. I give you the document because I trust you; you’re an honest person, and when it works out for you, bring me the money. Okay? Now suddenly he comes and produces the document and uses it. He sues. So I say: but this is a trust document; you never lent me anything. He says: no, this isn’t a trust document; I lent you, and this is the proof document. But I claim it is a trust document. Now, here there is no problem of “What is your document doing in my hand?” The lender asks me: so how do you explain that the document is in my hand? I have an excellent explanation: I gave it to you as a trust document. Therefore, in that case there is no argument of “What is your document doing in my hand?” So Tosafot asks Rashi: then why does the Gemara also bring the dispute between Rav Huna and Rav Nachman in that case, if there there is no argument of “What is your document doing in my hand?” But if you look there in Rashi, you’ll see that Rashi explains it. Wait, sorry. Rashi says that a trust document is an unusual case, and therefore we do not take that possibility into account. And he indeed does not explain it there in terms of “What is your document doing in my hand?” Fine. That’s not relevant to our point right now.

What I only want to note, to conclude with the Even HaEzel, is that the Even HaEzel basically reads—and I asked you why the wording is “and the commentary explained elsewhere,” instead of “and in the commentary it explained elsewhere,” as though it were a second answer. “And the commentary explained elsewhere” sounds like a continuation of the first answer. What did the answer answer? “And the commentary explained elsewhere,” as though continuing the answer in such-and-such a way. And indeed that is how the Even HaEzel reads it. He doesn’t mention the textual nuance, but he says the two answers complement one another. Exactly. He says the two answers complement each other, and then he reads what you were reading earlier in Tosafot. That Tosafot is basically saying that the foundation obligating me to validate the document is the borrower’s claim. And as long as the borrower doesn’t demand that I validate it, doesn’t claim “forged,” there is no obligation at all to validate. Consequently this is not “the mouth that prohibited” at all, but migo, and therefore it doesn’t help. In other words, there is no obligation to validate because only… Again: he says the first answer says there is a weak migo here, right? A problematic migo. But that problematic migo is still migo; it removes the basis of migo. But after all there is “the mouth that prohibited” here, and “the mouth that prohibited” is not bothered by the fact that it might turn out to be forged, because in the end “the mouth that prohibited” means that you received the force from me, so I have “the mouth that prohibited” that you should believe me also that I repaid. The explanation that “the commentary explained elsewhere” removes “the mouth that prohibited” here. This is not “the mouth that prohibited.” Why is it not “the mouth that prohibited”? Because validation of the document does not derive from the fact that you validated it, but from the fact that no validation is needed. In that situation what you have is migo, not “the mouth that prohibited.” Okay? And your migo, we have already seen, is a weak migo, and therefore there is here neither migo nor “the mouth that prohibited.” And these are two answers that join together into one answer—that is what the Even HaEzel claims. Then according to his view, one really has to read Tosafot the way you read Tosafot’s language: that everything the Sages required to be validated was only where the borrower demands validation. Whereas the way I read Tosafot earlier, without being committed to that, is that it is a separate answer: the Sages did not obligate him to validate because he has no migo; therefore they did not obligate him to validate because there is no argumentative force here, the Sages did not enact that force for him, and therefore they only required validation when he claims “forged.” Okay?

Okay, we’ll stop here. By the way, how much did you manage to cover? We finished through the Even HaEzel. What? We finished, we finished. Did you also do Gidulei Shmuel? Which one? The last one—I wanted to ask about it, his second paragraph? Yes. About that—if you’ll talk about it when you come back. What is it? But if the borrower claims “forged”? Yes, no—about this issue of the comparison to collection from land, from encumbered property. Ah, so about that I’ll speak—the equivalence between the two claims, I’ll speak about that.