Migo and Legal Reasoning – Lesson 1

[Rabbi Michael Abraham] About migo. The basic idea of migo is, all in all, on the face of it, it sounds logical — even though difficulties come up about it too — but on the face of it, it sounds logical. Because let’s say someone sues me and says, “I lent you one hundred shekels.” So I say to him, “I repaid you.” On the face of it, I shouldn’t be believed. Even if it’s not in a written document, I shouldn’t be believed. Why not? Because I admitted that I borrowed. When I say, “I repaid,” I’m basically saying, “I borrowed,” right? And now I want to claim that I repaid. So if it’s already known that there was a loan, and I only want to claim that I repaid, then the burden of proof is on me. Meaning, if he claims there was a loan and I deny it entirely, then the burden of proof is on him to prove that there was a loan. I’m in possession, the money is with me, and he claims there was a loan — let him prove it. But if I also admit that there was a loan, then I’ve moved the situation one step forward. There already was a loan — that’s a given. Now I want to prove the next stage, that I repaid. Fine, prove it. Now the burden of proof is on you. But I have a migo. Instead of saying “repaid,” I could have said — let’s say the claim isn’t based on a written note — I could have said to the man, “Nothing ever happened.” I chose to admit that there was a loan, only that I repaid it. I could have made a stronger claim that wouldn’t obligate me at all. I could have said, “Nothing ever happened, what are you bothering me for, you have no evidence, I didn’t borrow, I don’t know you, who are you?” So since I could have lied and said, “Nothing ever happened,” we believe me even in the claim that I borrowed and repaid. What’s the idea behind this?

[Speaker C] Because if

[Speaker D] I were a liar, I’d tell a better lie.

[Rabbi Michael Abraham] Exactly. Come, I’ll prove to you that I’m telling the truth. What do you think? You think I’m lying? If I were lying, I had a better false claim available. A liar has endless possibilities. A truth-teller has only one possibility — he can only say what actually happened. But the liar can choose claims as he wishes, he can invent science-fiction stories. So obviously he’ll choose the best claim. Now if this isn’t the best claim — because fact is, it doesn’t win, and there’s another claim that would win — then this is not the best claim. That’s a sign that I’m not a liar. Why am I saying it? Because that’s simply the truth — that’s why I’m saying it. Otherwise, if I were a liar, why would I choose this one? Okay? So therefore it’s a sign that I’m telling the truth, so believe me that I’m telling the truth. And then what comes out in practice is that they give me the force of the better claim even though I’m not making it. I’m making a worse claim. That’s the basic mechanism of migo, which the Talmud very often calls “why would I lie.” Why would I lie this way — if I wanted to lie, I would have lied better. So in the language of the Talmud it’s called “why would I lie”; sometimes the Talmud doesn’t call it migo at all, it calls it “why would I lie.” That’s what it calls it. There are later authorities who want to argue that where the Talmud speaks about migo, it’s not talking about “why would I lie,” it’s talking about something else. When it speaks about this meaning, then it speaks about “why would I lie.” Or, I don’t know, suppose someone is sued that… yes, again with a loan: “I lent you money, pay me back.” Let’s say the loan is for 30 days. Now he sues me after two weeks. I say to him, “I repaid.” A person does not repay before the due date, so I’m not believed. What happens if he sues me after a month? An ordinary loan is 30 days, so he sues me after 40 days. And I say, “I repaid during the term.” Seemingly, there’s a presumption that a person does not repay before the due date, right? I shouldn’t have been believed. But I have a migo, because I could have claimed that I repaid you yesterday — meaning after the 30 days — and then I would have been believed. So since that’s the case, they believe me. And so on. Meaning, if I make one claim and I could have made a better claim, then they believe that I’m not lying. Now migo is, of course, evidence of limited force. We do not invoke migo to extract from someone in possession. But it is evidence — meaning in certain circumstances it helps. Fine, that’s the ordinary conception of migo, and there are difficulties with that too, but that’s the ordinary conception of migo. Except that the later authorities — several later authorities — showed that there is something else in migo besides “why would I lie.” And they call it the force of a claim, the force of credibility; there are different expressions for it, and they also express different ideas. Remind me, I need to upload to the site an updated version of this booklet. Meaning, it’s there as one of the articles, but over time I’ve already added things to it. In any case. So that’s one thing. Now, an example — an example that shows that this isn’t the whole story. There is such a thing called a migo involving brazenness. So a migo involving brazenness — if, for example, like I brought earlier, someone sues and says, “I gave you money,” and I say, “I repaid.” There are those who say this is a migo involving brazenness. Why? Because the migo that I could have claimed “nothing ever happened” is basically lying to the face of someone who did me a favor. He lent to me — if that’s the truth, that he did me a favor and lent to me — then to say to the man’s face, to tell a person, “You’re just picking on me” after he did me a favor, “you’re just picking on me,” that’s very unpleasant.

[Speaker D] A person does not brazenly confront,

[Rabbi Michael Abraham] A person does not brazenly confront his creditor, yes, exactly. And then what happens is that when I say, “I repaid,” and I say, “Look, if I wanted to lie I would have claimed ‘nothing ever happened,’ that’s a better claim” — that’s not true. You didn’t refrain from choosing “nothing ever happened” necessarily because you’re telling the truth, but because it’s unpleasant for you to say “nothing ever happened.” True, exactly — even though “I repaid” is also basically lying to his face, but it’s indirect. Maybe I don’t remember, maybe this, maybe that. Maybe sometimes, as the Talmud in tractate Bava Metzia on page 3 there with the first Rabbi Chiyya says, sometimes I want to stall, and when I have money I’ll pay you back. But if I deny the loan altogether, then — so that’s a migo involving brazenness. Now, on the face of it, a migo involving brazenness shouldn’t work, because there’s no migo here. It turns out that a migo involving brazenness is also a migo; it is accepted as a migo in the Talmud in quite a few places. There is a question whether a migo involving brazenness helps to exempt from an oath. That’s a dispute among medieval authorities (Rishonim). Suppose there is one witness against me, and one witness obligates me to take an oath, and I have a migo. So maybe they’ll exempt me from the oath; instead of the oath I brought a migo. Fine? I brought other evidence, so exempt me from swearing. So there’s a debate among the medieval authorities whether a migo involving brazenness can exempt from an oath or cannot exempt from an oath. But in ordinary monetary contexts, a migo involving brazenness works like a regular migo. You see this in several places. Then the question comes up: why? After all, the consideration of migo as “why would I lie” doesn’t exist in a migo involving brazenness. Meaning, there is no proof here that I’m telling the truth. Because “if I wanted to lie I would have made that claim” — that’s not true, you wouldn’t have made that claim because it’s unpleasant for you to make it. So this consideration of “why would I lie” isn’t here — so why do we accept a migo involving brazenness? So from here, among other things, several of the later authorities prove that there is such a thing as the force of a claim. Meaning, migo as the force of a claim. Migo as the force of a claim means it’s a formal halakhic rule. In this booklet, at the end, I added an appendix that talks about legal reasoning. Where does legal reasoning come from — I added that because migo as the force of a claim is legal reasoning. What does that mean? There isn’t in it the logic that I gave before, of “why would I lie,” of “come, believe me that I’m telling the truth, because if I wanted to lie I would have lied with a better claim.” But since I had the possibility of winning with another claim, I also win with the weaker claim. A kind of formal rule like that. Whoever has the possibility of winning with another claim can also win with the weaker claim. A rule like that — that’s called: I have the force of the claim that that other claim would have given me. Even though the logic of migo is not here — that if I wanted to lie I would have lied with that claim. The logic of migo isn’t here. But still, fact is, I could have claimed “nothing ever happened.” Even if it’s not likely I would have claimed it because it’s an unpleasant lie. But I could have claimed “nothing ever happened.” I could have, period.

[Speaker C] Wait, so why doesn’t that help exempt from an oath?

[Speaker B] What?

[Rabbi Michael Abraham] And then that also explains why it doesn’t help exempt from an oath — in a moment maybe I’ll say it.

[Speaker B] Meaning, it does have halakhic force, but weaker than a regular migo?

[Rabbi Michael Abraham] Weaker, or partial, or different — we’ll see in a moment. But it is also a migo that can work.

[Speaker D] Even though it’s not a better claim at least, right? What?

[Rabbi Michael Abraham] Yes, it’s always a better claim — but a claim, meaning what does “better” mean? A claim that would have enabled me to win.

[Speaker D] Yes, but why another claim — why could I have made another claim? Maybe the other claim is less good?

[Rabbi Michael Abraham] No, the other claim is better, always another claim. Give me the force of the other claim. If the other claim is weaker, then give me its force — but that won’t help me. But if I have another claim by means of which I would have won, then I receive the force to win even with this claim. Okay? Maybe I’ll demonstrate the proof, or the meaning of the proof — not the proof, I haven’t explained anything yet. I’ll demonstrate it through exemption from an oath. Rabbi Shimon Shkop writes, and other later authorities too, why indeed doesn’t a migo involving brazenness help exempt from an oath? If migo exempts from an oath — excuse me, whether migo exempts from an oath or doesn’t exempt from an oath is a dispute among medieval authorities. Within the medieval authorities who say that migo does exempt from an oath, there is a dispute whether a migo involving brazenness also does that. Okay? So I’m speaking according to the view of those medieval authorities who say that migo exempts from an oath. So a regular migo exempts from an oath, but a migo involving brazenness does not exempt from an oath. And Rabbi Shimon Shkop explains: what’s the idea here? Suppose there is one witness testifying against me. So the religious court makes me swear; that’s one of the Torah oaths. I am obligated to take an oath when there is one witness against me. What does it mean that I’m obligated to take an oath? I have to calm the court down. Meaning, there aren’t two witnesses against me, so they can’t extract money from me, but there is testimony of one witness — that’s also something, presumably he’s not lying. So there is some indication against me. I need to calm the court down, to give them some kind of evidence that I’m telling the truth; without that they won’t leave the money with me. Okay, I need to reinforce my words in some way, and I reinforce them by an oath. Now if I have a migo, then the migo gives them the needed reinforcement even without my swearing. Therefore the migo exempts me from an oath. I gave you the reinforcement that’s needed — I have a migo. Okay. Now what happens if this is a migo involving brazenness? If it’s a migo involving brazenness, I haven’t given them any reinforcement, because the evidence found in migo does not exist in a migo involving brazenness. After all, what are they looking for? They’re looking for: give us some kind of proof so that we’ll be reassured, so that we can rule in your favor and our conscience won’t trouble us. Okay, so I bring you a proof — the migo — instead of swearing, and then I don’t have to swear; I gave you proof. But if I give you a migo involving brazenness, then it doesn’t have that evidentiary dimension. After all, the proof is based on this reasoning that if I wanted to lie, I would have lied better. In a migo involving brazenness, that proof isn’t there. A migo involving brazenness doesn’t prove that I’m telling the truth.

[Speaker C] In order to exempt from an oath, what you need

[Rabbi Michael Abraham] is the evidentiary dimension of migo, not the force of a claim. Exactly. After all, if the question is a question about the money, there is another alternative way to win the money. So I can say: I have another alternative way to win the money, and that will give me a win even with this claim. For some reason that I still haven’t explained. But it’s certainly not evidence — a migo involving brazenness. In a migo that comes to exempt me from an oath, it has to be a migo that supplies the court with evidence, and then I can say, I don’t need to swear because I gave you evidence instead. A migo involving brazenness is not evidence. Therefore there were medieval authorities who said that even though migo exempts from an oath, a migo involving brazenness will not exempt from an oath. That’s how Rabbi Shimon Shkop explains it. So this sharpens the difference between the two types of migo. A migo involving brazenness can help me win money, but it cannot help me be exempted from an oath.

[Speaker B] Wait, is this law an agreed law, or is it something the later authorities inferred?

[Rabbi Michael Abraham] What do you mean, which law?

[Speaker B] The law that it doesn’t exempt from an oath.

[Rabbi Michael Abraham] No, this law — it’s medieval authorities. Already medieval authorities? It’s medieval authorities. From the Talmud — they ask questions on the Talmud and answer: no, this is a migo involving brazenness, therefore it doesn’t exempt. It all starts from the Talmud. But there are other medieval authorities who explain the Talmud differently. So it’s not agreed upon.

[Speaker C] Okay. There really are medieval authorities

[Rabbi Michael Abraham] from whom it sounds like a migo involving brazenness is also a migo, only a weaker one. After all, I still could have won the money. What — it’s unpleasant for me to brazenly confront him? So because of that I’ll lose the money? One way or the other, if I’m willing to lie in order to win money, then tell an effective lie. What is this “a person does not brazenly confront his creditor”? So what do you want to say — that I am lying anyway, I just didn’t lie and say “nothing ever happened” because it was unpleasant, so instead I lied and said “repaid”? Am I stupid? Meaning, I’m telling a lie that doesn’t help because the helpful lie is unpleasant for me to say? Then don’t lie at all. After all, this lie is for the sake of making money, but you won’t make the money that way. Therefore even a migo involving brazenness may still have some evidentiary force, only perhaps weaker than a regular migo. There are medieval authorities who want to say that; there are medieval authorities from whom that seems to emerge. No medieval authority talks in this language at all, but later authorities analyze the words of medieval authorities. But the view of some later authorities — Rabbi Shimon Shkop, Rabbi Elchanan Wasserman, later authorities closer to our time, Rabbi Shmuel Rozovsky — they speak in the language of the force of a claim and “why would I lie.” Then of course the question comes up — I brought this here at the beginning, I think. Ah yes, I didn’t quote it, I only mentioned it. There is Rabbi Shaul Breish of Zurich, Helkat Yaakov — the son of Helkat Yaakov, I don’t remember anymore — who has a book called Mishpetei HaMigo, a book that deals with migo. In his approbation to the book, Rabbi Breish writes there: I don’t understand this talk of the later authorities about migo as the force of a claim. What is this, like electricity? Meaning, if you have one claim that wins, then we transfer power in an electrical circuit, we transfer the power to the weaker claim and now it wins too. What is that? Where did that come from? He objects to the mechanism. Yes. The logic of migo as “why would I lie,” I understand — that’s logic, that’s a clear rationale. But where do you get these laws from? And you have to understand that this law doesn’t come from some verse. There is no verse for the idea of migo. Even regarding “the mouth that prohibited is the mouth that permitted,” where the Talmud brings a verse for it, the Talmud asks: why do I need a verse? It’s logical. Meaning, why do I need a verse? There’s a rationale. A stronger type of migo. So I have a rationale — why do I need a verse? But regarding migo itself there is no verse at all. Then the question is: if there were a verse, I would say, fine, that’s what the verse introduced. Even though I don’t understand the logic of it, but that’s what the verse introduced. But there’s no verse, and there’s no logic either — so what, where did the Talmud invent this from? Very often later authorities — Brisk, for example — wouldn’t even understand what he wants when he asks such a question. Because what do you mean? It’s explicit in the Talmud. What logic? I have proof that the Talmud says it. Fine — but where did the Talmud itself get it from? That we don’t ask. We don’t ask why, we only ask what. That’s the approach, the mythos, the Brisker ethos, yes? Meaning, if I have proof from the Talmud, the discussion stops there for me. I don’t ask where the Talmud got it from or why the Talmud understood something in a certain way. Those are amoraim towering above us; we can’t ask such questions. Fine. But Rabbi Breish apparently wasn’t a Brisker, so he did ask that question, and says: I don’t understand this thing — everyone talks about it, that this is correct, and I don’t know how he would explain all the sources, both in the Talmud and in the medieval authorities, where you really see it. There are quite a few sources where it’s very hard to explain them without this conception. So then he says, yes, so he doesn’t understand what this force of a claim is. And this is the basic difficulty with migo as the force of a claim. There are also difficulties with migo understood as “why would I lie.” First of all, there is a general question about migo — the Netivot asks it. In the rules of migo generally: maybe the person didn’t think of the alternative claim. What, is every person such a Torah scholar that he knows all the alternative claims, and with which one he’ll win and with which one he won’t? Like what I brought earlier about a migo involving brazenness — what an idiot, what, he’s telling a lie that doesn’t help because it’s unpleasant for him to tell the lie that would help? Then don’t lie at all — because either way it won’t help.

[Speaker C] He’s also stupid, he also doesn’t know the presumptions — that a person doesn’t repay before the due date — he also doesn’t know that…

[Rabbi Michael Abraham] No, you don’t need to know the presumptions. Why? Because presumptions are presumptions about human behavior. A person really doesn’t repay before the due date.

[Speaker C] That’s human nature.

[Rabbi Michael Abraham] A person really doesn’t repay before the due date. So exactly — that’s his nature. It’s not an interest calculation, it’s not related to scholarship. On the contrary — and from this, by the way, a sharpening; in a moment I’ll get to that. What?

[Speaker C] It’s human nature according to the law.

[Rabbi Michael Abraham] No, most people don’t repay before the due date. That’s the nature of the world, it has nothing to do with scholarship; it’s simply an assessment of reality. Most people don’t repay before the due date. So if a person comes and says, “I repaid before the due date,” we say to him: we don’t believe you. Human nature is that people don’t take money out before they’re required to.

[Speaker E] But maybe say here too that human nature is that he knows the stronger claim — isn’t that an equivalent presumption? Some don’t, but most people are presumed to know it.

[Rabbi Michael Abraham] Why, who says that most people are Torah scholars who know the difference between “repaid” and “nothing ever happened”? I don’t know. And certainly not in sophisticated migos — there are very sophisticated migos in the Talmud. Most people know those? But the point is, what the Netivot says is simple: it’s like a person who comes to court and first clarifies things. He consults Torah scholars or lawyers in another context, and prepares himself. So it doesn’t matter how much of a Torah scholar he himself is; he prepares, and figures out what alternatives stand before him, and therefore there is a presumption — what? He asks the lawyer, “Tell me, which claims are accepted and which claims aren’t?” So he tells him, “Look, ‘nothing ever happened’ is accepted, ‘I repaid’ is not accepted.” No problem — he assumes what the truth is. Yes, after there is already migo, then he’ll tell him that “I repaid” is also accepted — but that’s the question we’ll get to in a moment.

[Speaker B] After he already has a lawyer?

[Rabbi Michael Abraham] No, you don’t need a lawyer. You go to a Torah scholar and attend a lesson on the laws of claims and counterclaims. You don’t even tell him what it’s about. A lesson on the laws of claims and counterclaims. “Tell me, if someone comes and sues me and I say ‘nothing ever happened,’ is that okay? And if I say ‘I repaid,’ is that also okay?” So he answers him — halakhic questions you can answer, what’s the problem?

[Speaker E] No, but maybe a Torah scholar will intentionally answer him in a way that stops him from exploiting it.

[Rabbi Michael Abraham] A person wants to study Torah — what, you won’t answer him? He doesn’t even tell you that he’s coming to consult you about litigation. He wants a lesson in the laws of claims and counterclaims. Never mind, I’m just sketching a scenario. He’ll find someone who’s a corrupt Torah scholar, fine, it doesn’t matter — he’ll find someone to consult with.

[Speaker E] The assumption is that it’s rare to find someone who both knows the laws of migo and is corrupt. Meaning, if you already know the laws of migo, then you’re not corrupt.

[Speaker C] You’re a little optimistic.

[Rabbi Michael Abraham] Totally. Very often, if you want to be corrupt, you need to study the laws of migo very well — meaning, know how to lie. Serious corrupt people who do the job seriously study the laws of migo very carefully. Fine. In any case, that’s what the Netivot says — that a person consults, clarifies. Sometimes he can even study by himself, but he has to sit and learn and see. Today certainly, in our generation, when everything is already written down, even someone who’s not a great Torah scholar can prepare himself, search for material, and study more. Once this was less accessible. In any case, that’s what he says. So that’s one question about migo. A second question about migo is that migo basically saws off the branch it’s sitting on. Because if you say claim A by virtue of a migo, because you could have claimed claim B, meaning claim B is stronger, therefore I have a migo on claim A — okay. Now the migo turns claim A into a claim as strong as B. Once it’s as strong as B, then there is no longer any question why I didn’t claim B, because A is just as strong. So the moment migo equalizes the force of the claims, it saws off the branch it’s sitting on.

[Speaker C] It’s equally strong only because B exists. Right. What? It’s not strong in its own right. It’s strong because of B. Right.

[Rabbi Michael Abraham] So still, what am I now saying? I’m saying: if I wanted to lie, I would have chosen B. That’s not true. I choose A because I know they’ll believe me on A by means of migo.

[Speaker C] Because B is an option.

[Rabbi Michael Abraham] Right, because B is an option. But now when they ask me, maybe you’re lying? There is the option of B. Now when they ask, maybe you’re lying? And all of a sudden — me, lying? If I wanted to lie — that’s the biggest lie of all. If I wanted to lie I would have made claim B? What are you talking about? You already know that people learn the law of migo, and so you make claim A so that they’ll believe you via migo. And more than that — believe you? After all, if you make claim A now, it even has an advantage over claim B. It’s not merely equal to claim B.

[Speaker D] It has backing.

[Rabbi Michael Abraham] Exactly. Because with claim B, you would come out innocent due to lack of evidence. With claim A, you come out innocent in a positive sense — you have proof in your favor. Migo is evidence. Look, we see that you’re telling the truth. You come out stamped as a truth-teller, with a certificate. What? Not guilty, exactly. So it even has advantages. That’s the question of the genius of Meitzhet. The genius of Meitzhet asked this: how can there be migo? Migo basically saws off the branch it’s sitting on. By the way, some bring in migo as the force of a claim here as an answer. Because they basically say there is no “why would I lie” in migo. “Why would I lie” in migo is only some calculation from which migo was created, and now once migo was created, it sawed off the branch it was sitting on — but now the idea of the force of a claim comes and leaves it standing anyway; we still use migo. True, “why would I lie” isn’t here. In none of the migos is it really there. So why mention it at all — I don’t understand. Huh? Because that’s how it started. It’s called “why would I lie” because that’s how it started. It started with our not accepting claim A. I said: if I wanted to lie, I would have lied with B. Ah, you’re right, good argument — so you have a migo in your favor. Fine? After the first one broke the path and now you’ve founded an institution — I’m describing this in literary terms, of course — the institution of migo was created. Now those who come afterward already know there is migo, so they can no longer make that argument. But now there is already the force of a claim. Okay? Now migo operates by the law of the force of a claim, and really “why would I lie” doesn’t make sense — it turns the whole thing upside down. Because the Maharal of Prague says that in “why would I lie” there is logic, but where did the force of a claim grow from? Now it turns out — not at all. “Why would I lie” isn’t logical; the force of a claim is the only thing left. We still haven’t understood why it’s right, but it’s the only thing left. There are some who want to say that too.

[Speaker E] Why don’t you say something similar to what you argued regarding “a person does not repay before the due date”? You said that all that applies only when the presumption that a person does not repay before the due date exists, but nowadays when that presumption doesn’t exist, it’s no longer applicable. The same thing with migo — that the whole migo only applies when the presumption exists that when he makes the weaker claim, he really does it innocently and not out of some clever manipulation, whereas nowadays that presumption no longer applies because today there is this sort of manipulation.

[Rabbi Michael Abraham] I’m talking about the time of the Talmud now, not nowadays. What happened in the time of the Talmud?

[Speaker E] I assume that in the time of the Talmud there was a small group that knew this concept of migo, and they weren’t coaching people how to cheat the system.

[Rabbi Michael Abraham] Then there is no migo. If so, there shouldn’t have been migo at all, because most people are not Torah scholars — so why give them migo in the first place?

[Speaker E] No, migo is based on the fact that you could have claimed something stronger and didn’t claim it.

[Rabbi Michael Abraham] I didn’t know there was something stronger I could have claimed, because I’m not a Torah scholar.

[Speaker E] No, I mean something simple, like let’s say, I don’t know…

[Rabbi Michael Abraham] But if it’s not something simple — after all, there are very sophisticated migos in the Talmud.

[Speaker E] I’m talking about the basic argument where you roll the migo along and then reverse it. You’re saying now that he knows he can make a weaker claim

[Rabbi Michael Abraham] So he’ll make that claim intentionally. That I understand. But in the Talmud there are also very sophisticated miggos, and there you can no longer say what you’re saying. Why? He says that whenever there’s a miggo, that means there’s probably something else going on here too, at least in those miggos. So if there’s already something else, then there’s no need to distinguish between two types of miggo. Fine, so apparently there is something else here. And in fact the later authorities (Acharonim), in various Talmudic topics—mainly the chapter Chezkat HaBatim and the first chapter of Ketubot, those are the chapters where miggos are dealt with most extensively. There are others, but there it’s really topic after topic dealing with miggo. So there are later authorities who explain that there are disputes over whether miggo is the force of a claim or “why would I lie.” There are later authorities who say there are two laws in miggo: both the force of a claim and “why would I lie.” If we say there’s a dispute, that basically means there’s one opinion that says there is only “why would I lie,” and another opinion that says there is only the force of a claim, because that’s the dispute between the two views. Fine. So there’s a whole range of possibilities here, in various topics, as to how this works. It runs from one extreme to the other: some say there is only the force of a claim, some say there is only “why would I lie,” and some say there are both, two separate laws in miggo. For example, the approach I mentioned earlier among the medieval authorities (Rishonim), who say that a miggo can exempt from an oath, but a bold miggo cannot exempt from an oath—there you have to say that there are two laws in miggo. A miggo includes both the “why would I lie” element and the force of a claim. Therefore, in a miggo that is a bold miggo, there is only the force of a claim; there is no “why would I lie,” and therefore it cannot exempt from an oath. An ordinary miggo, which has the “why would I lie” element too, can also exempt from an oath. So then it’s obvious: whoever makes such a distinction, obviously for him miggo has both aspects. Okay? Both “why would I lie” and the force of a claim. So this question of how this whole mechanism actually works is difficult both for miggo as “why would I lie” and for miggo as force of a claim.

Maybe I’ll ask another question, and it’s connected to what you described earlier about the presumption that a person does not repay before the due date. The proof of miggo is a different kind of proof from many other proofs, such as the presumption that a person does not repay before the due date. What’s the difference? The presumption that a person does not repay before the due date is objective proof. It’s proof that comes from the nature of the world. Suppose a person says, “I paid within the term.” I don’t believe you; generally people don’t repay within the term. Miggo is proof about the person himself, not about the matter itself. With miggo I am not proving that I really paid; I am proving that I’m not lying. The subject of the proof, the object of the proof, is me—not my claim, but that I am not lying. What practical difference does that make? If, for example, I have reason to think that the person himself really thinks he paid—for example, he gave the money to the lender’s son. Maimonides brings this example: he gave the money to the lender’s son, but returning the money to the son is not considered repayment, because the son can’t receive it— I mean a minor son—he’s not responsible, and you have to return the money to the person who made the claim against you. You can’t just put it there, throw it into his courtyard, or place it somewhere unsecured. So he himself—he’s not a Torah scholar—he himself thinks that returning it to the child is also okay. Okay? So he says, “I paid.” Now, if I took the claim “I paid” on its own, I would say he has a miggo—he could have said something else—so that’s a sign he’s not lying. I say: true, he’s not lying; he’s just mistaken in Jewish law. He gave the money to the lender’s son, and innocently he thinks he paid. He isn’t lying. Here miggo won’t help, you understand? Miggo proves that I’m not lying, because if I wanted to lie I would have lied with a better claim. But if the concern of the religious court is not that you’re lying, but that what you’re saying is innocently incorrect because you don’t know—what’s called that you imagine that’s really the law because you don’t understand—then in such a case miggo won’t help for that kind of thing.

The presumption that a person does not repay before the due date would help even here, because a person does not repay before the due date. That proves that I didn’t pay—not to the little boy, not to the father, not to anyone—because a person does not pay the money before the due date. That’s a presumption that proves the substance of my claim; it doesn’t talk about me, it talks about my claim. Just like witnesses, for example—witnesses also testify that so-and-so borrowed, or that so-and-so did not repay, or that so-and-so murdered, or so-and-so whatever—that’s a claim about the matter itself, not about the person himself. The witnesses tell the religious court: friends, we are telling you that this and this was the reality. Miggo proves nothing to the court about reality; miggo proves to the court that I’m not lying. Fine—but if the court’s concern is not concern about lying, but concern that he does not understand reality, and therefore I innocently say that I paid when in truth I didn’t pay, miggo will not help in such a situation. In other words, miggo is proof about the person himself and not about the matter itself. It is a different kind of proof.

[Speaker C] Let’s explain that claim for a second. Suppose it’s a 30-day loan. What makes more sense? If someone asked me today what is more logical—that a person would repay on day 35 or on day 25—I’d say clearly day 25, because on day 35 he is exposed to a claim. What’s the point of the 30 days? I’m going to go around town and tell everyone that this person doesn’t repay loans.

[Rabbi Michael Abraham] No, not that he doesn’t repay loans. Just ask him for the money and then he’ll pay. What’s the problem?

[Speaker C] No, he’ll pay after the due date.

[Rabbi Michael Abraham] But the presumption is when he does not—

[Speaker C] He doesn’t have to repay specifically on day 30.

[Rabbi Michael Abraham] I’m saying that from day 30 on I can ask you for the money. Once you ask for the money—it’s a loan, other loans, I mean, come back.

[Speaker C] The assumption is that there’s no problem repaying after the due date. Meaning, repay when he asks you, repay. Before the due date he can’t ask you,

[Rabbi Michael Abraham] He undertook that for 30 days the money would be available to you.

[Speaker B] Is that really the Jewish law—that the responsibility is on the lender to come to the borrower and ask him?

[Rabbi Michael Abraham] I don’t know exactly whether there is Jewish law on this matter, because after all, once a dispute has arisen then he is already making a claim, so you have to pay. So what difference does it make? It’s a law with no teeth whatsoever. Because once it gets to a religious court—wait, he didn’t keep the law, he didn’t pay me, so now he—

[Speaker B] —will pay me because you sued him.

[Rabbi Michael Abraham] Obviously. But I assume there is no actual law here; the question is what the custom is. What custom? In any given reality, I don’t know.

[Speaker C] Today the reality—

[Rabbi Michael Abraham] Today it’s different, I don’t know.

[Speaker C] Even today, people don’t go straight to court.

[Rabbi Michael Abraham] No, but still, the question is what is basically required of me. Obviously people don’t go to court immediately. “Pay up”—what is basically required of me? Fine, so it’s not important. It’s a social norm, not Jewish law, and obviously it can change with the social norm.

Now then, suppose someone comes and says to a woman that her husband died—an agunah, okay? One witness comes and says that her husband died. One witness is accepted in testimony concerning a woman. We examine him many times in order to make sure that he saw correctly—not only in order to make sure he isn’t lying. It could be that he saw the man lying there, but in fact he was only wounded, not dead. So we ask: did you really see? Maybe you didn’t identify the person correctly. Maybe it was a similar-looking person and you didn’t identify him properly. All these examinations are meant to neutralize the possibility not of lying, but of an innocent mistake. In other words, he imagined that it was really so. For clarifications of that kind, no miggo will help at all. If I wanted to permit the woman, then I would lie better? You don’t want to permit the woman—we don’t suspect you of lying—but maybe you didn’t understand correctly what you saw. So in such a situation we cannot use miggo. Okay? In other words, miggo is proof about the person himself and not about the matter itself.

Now this raises another difficulty. Why should I care that a person has proof about himself? Meaning, if a person says, “I paid within the term”—sorry, “I paid,” yes, “I paid within the term”—then there is proof about the matter itself that I did not pay, because people do not repay within the term. Fine. But if the person has a miggo, then the miggo proves that he’s not lying. Who said I’m lying? I’m merely a litigant. What I say is not rejected because of suspicion that I’m lying, but because a litigant is disqualified from giving testimony. Let me give you an example. Suppose two related witnesses come.

[Speaker C] That’s not testimony.

[Rabbi Michael Abraham] If it’s not testimony, then why do they believe me?

[Speaker C] It’s not as testimony, it’s as a claim.

[Rabbi Michael Abraham] Admission of a litigant, a claim—that’s worth nothing. What is the proof? Miggo has to bring proof, not make claims. Of course I can make claims, but what does the miggo help you with? Miggo is proof, not a claim. Proof of what? Proof for the litigant, proof that I’m speaking truth. Again, if the proof is of the type of the presumption that a person does not repay before the due date, then I have no problem, because that is proof that my claim is correct. That’s always the way all proofs work: when I bring two witnesses, they say that my claim is correct. But here miggo does not prove that my claim is correct; it proves that I’m not lying. Who said I am lying? That’s not even the discussion. The discussion is not my lying; I am making a claim. I’m not even the issue in this game. The litigant is not accepted as a witness not because there is concern that he is lying, but because a person is considered related to himself—that’s a disqualification of relatedness.

[Speaker F] The Torah—there’s logic to their being disqualified as related, because the purpose of the religious court is to conduct some kind of trial that resembles, that clarifies reality as well as possible, let’s say. Now, when the claim of a litigant isn’t accepted because it’s something categorical, that means all the way through you can’t accept the litigants’ claims, because then we can’t have a trial at all, because then he’s right and he’s right.

[Rabbi Michael Abraham] Now, in a place where you can’t accept the claims of both litigants, then don’t accept them—no problem—or they contradict one another. But there are places where I can accept them.

[Speaker F] So if you can, then you know which way the case tends, so you can decide the case even if they weren’t lying. There are cases where you know the truth even before anyone starts talking.

[Rabbi Michael Abraham] “By two witnesses a matter shall stand.”

[Speaker F] Yes, but because the Torah wanted—the Torah isn’t detached—it has to create a reality in which even two witnesses can come and lie.

[Rabbi Michael Abraham] Obviously, but the assumption is that they don’t lie.

[Speaker F] It’s only an assumption; in reality such things have happened.

[Rabbi Michael Abraham] Obviously, but that is proof about the matter itself, not about the person himself. I’ll give you an example; maybe the example will make it clearer. The Talmud in Bava Batra—and both Maimonides and the Shulchan Arukh and also the Tur all bring this—the Talmud says that the testimony of relatives is invalid not because of concern that they’re lying. There is no concern that they are lying. A person does not sin— a person does not lie if he has no interest in lying. Kinship or something like that is not a sufficient basis for lying, at least as a legal assumption, okay? Obviously there is somewhat more concern that they might lie, but as a legal assumption they retain the presumption of fitness. So why is the testimony of relatives invalidated? It is a scriptural decree. That’s what the Talmud says. Okay? Why is it a scriptural decree? Maybe one can somehow understand it; it may also be connected to legal reasoning, that somehow we want a person’s conviction to be based on something that is— for some reason. I’ll leave that; maybe we’ll discuss it later. But there is a scriptural decree disqualifying relatives.

Therefore, for example, if someone knew testimony about him before he became his son-in-law and then became his son-in-law—or the reverse: he knew testimony about him when he was his son-in-law, and afterward he divorced his daughter. Now when he comes to testify, he’s no longer related to him. So he can testify. Why can he testify? Because right now he’s not related. Correct? So what if he saw it when he was related? Right now there’s no concern that he’s lying because he’s not related. And what about the opposite case—if he knew testimony before becoming his son-in-law and then became his son-in-law? In that situation the Talmud starts discussing whether he can testify or cannot testify—whether the beginning was in disqualification or the end was in disqualification. What do you mean? Is there concern about lying? No, there’s no concern about lying. All the rest is only if you are related. It’s not merely that there is no concern—the whole issue of relatedness is not because of concern about lying. So this means that relatives are not disqualified because of concern about lying. And Maimonides writes this: the fact that the Torah disqualified the testimony of relatives is not because there is concern about lying, but because it is a scriptural decree. And the Shulchan Arukh writes this too.

Now what happens if two related witnesses come and they have a miggo in their favor? There’s a miggo: two witnesses who come and testify that I paid the money, I repaid the loan. They both could have said that no such thing ever happened. If they had wanted to lie in my favor in order to exempt me, they could have said that nothing ever happened. Or another example: two witnesses come and say that so-and-so murdered. Then two other witnesses come and contradict them—not expose them as plotting witnesses, but contradict them: “No, so-and-so didn’t murder.” Tosafot asks in several places: the second witnesses have a miggo. They could have declared the first ones to be robbers and thereby disqualified them. When they merely say “so-and-so didn’t murder,” then it’s two against two; in principle we don’t believe them, it’s two against two.

[Speaker B] So that’s why this doesn’t apply in capital law either?

[Rabbi Michael Abraham] In anything. But what are you using the miggo for? In order to convict? It depends on what; sometimes there is a miggo for defense, in various places. In the case of a woman and “an open entrance,” the sugya in Ketubot doesn’t deal only with monetary matters. There are also the monetary matters of the ketubah, so not only monetary law of the ketubah, there are also miggos there. So the witnesses could have disqualified the first ones by calling them robbers. Believe the second witnesses who came and said there was no loan, or that so-and-so did not murder, because they could have disqualified the first witnesses as robbers and won the case. About that, the medieval authorities explain—and later authorities explain them, because there are various answers in the Talmud to that question—that miggo cannot help witnesses. Why can’t it help witnesses? Relatives, sorry—why can’t it help relatives? Miggo can’t help witnesses is another answer—that witnesses in general have no miggo—but there are medieval authorities who are willing to accept miggo with regard to witnesses, but not for relatives. Why? Because with relatives, I do not reject their testimony because I suspect them of lying. So what difference does it make now that if they had wanted to lie they would have lied better? I didn’t say you were lying. I reject your testimony even though you are truth-tellers. The miggo proves that you are truth-tellers; I also say you are truth-tellers. I do not accept it because you are related. So what does the miggo help?

[Speaker B] I didn’t understand—what’s the connection to relatives? Two related witnesses come. The miggo of robbery is also among relatives. Two related witnesses come and say they have a miggo.

[Rabbi Michael Abraham] Suppose two witnesses come and say so-and-so murdered. Then two relatives come and say so-and-so did not murder. So you are relatives, you are disqualified as witnesses, and we accept the testimony of the first ones. Why? But we have a miggo: we could have come and testified that they are robbers. Now true, this is an interesting miggo in the example I used here, because even if we had said they were robbers, we still would not have been accepted. Right, because they are relatives. Correct, that doesn’t matter, but after all we came to testify as relatives. Meaning, by definition it’s clear that we ourselves don’t know that our testimony as relatives would not be accepted. And if so, then at least according to our own understanding, if we had wanted to lie we would have said that they were—this is a very interesting miggo, by the way. It’s a miggo that has force of claim but does not have—no, the reverse from a bold miggo.

[Speaker C] There the case is where they are relatives of the defendant.

[Rabbi Michael Abraham] Doesn’t matter, or related to each other.

[Speaker C] If they are relatives of the defendant, then they can’t testify for the defendant, but for contradicting witnesses—

[Rabbi Michael Abraham] Right, so let’s talk about witnesses who are related to each other. Right, you’re correct.

[Speaker B] No, but such a miggo seems questionable to me even as “why would I lie.” I mean, you’re basically saying that any person who has no valid claim at all—any claim he makes won’t be accepted—can come and make some absurd claim that sounds even less acceptable, and then we’ll believe him because if he were lying he would have said something that sounded a bit better.

[Rabbi Michael Abraham] And there is such a Rashba in Kiddushin 50 and Tosafot in Ketubot in the first chapter, who say there is such a miggo: a miggo from an ineffective claim to another ineffective claim. A miggo from a good claim that still wouldn’t help, to a weaker claim that also wouldn’t help. Why? Subjective miggo. A miggo that says: look, I am making ineffective claims, meaning it’s obvious that I’m not a great Torah scholar. Okay? I understand, I’m not—I make ineffective claims. So what? If I’m a liar, then I’m not a great Torah scholar, or else I’m simply telling the truth. But if I’m a liar, then apparently I’m not a great Torah scholar. Fine. So if that’s the case, I’m not a great Torah scholar and I don’t know that testimony of relatives is ineffective, so I would have lied with that. So I have proof that I am not lying.

[Speaker B] So now they’ll accept that too, even though it’s some kind of hocus-pocus. But the moment you rule such a miggo as Jewish law, you are essentially undermining the whole branch here. It’s not just a difficulty about the person. You are now causing damage too—you’re opening the door to all the liars.

[Rabbi Michael Abraham] What—there too I’m opening the door to all the liars. All the liars will make a claim so that I’ll accept it through miggo. That’s the same evasion question.

[Speaker B] Right, but then the liars wouldn’t profit from it. At most you opened the door for inexperienced liars to gain what experienced liars were gaining.

[Rabbi Michael Abraham] Okay, fine. And still, and still, you opened a door for liars. We’ll get to the argument you just made—I’ll get to it later—but let’s leave it for a moment.

So in any event, the Rashba and Tosafot say there is such a miggo, a miggo from an ineffective claim to an ineffective claim. And that’s a good example of a miggo that has “why would I lie” but does not have force of claim. Why? Because there is no force of claim here—after all, I have no alternative by which I could actually win. Force of claim means that if I have another claim through which I could have won, then I have the power to win through this claim too. But not here. Even the alternative claim would not have helped me win in reality. I have no ability to win. Miggo as force of claim is based on my having the ability to win. I don’t have that ability. On the other hand, I do have proof here that I’m not lying. Because the proof that I’m not lying is subjective proof—and that’s what I said before: it is proof about the person himself and not about the matter itself. Proof about the person himself—if I myself didn’t know this, then it really proves that I’m not lying, because if I wanted to lie I would have told that lie. So the “why would I lie” exists here.

Maybe another example. Two witnesses come and testify—no, let’s say a person comes and says, “It was paid,” okay? Regarding a loan, the litigant himself. He says, “Paid,” with a miggo that he could have said “forged.” He could have said the document was forged. Now two witnesses come and say that the document is not forged. Or with a miggo that he could have said no such thing ever happened, and two witnesses come and say there was a loan, and they knock out his miggo. Fine? So again, this is a situation where there is no force of claim, but there is “why would I lie.” Why? There is no force of claim. If I had claimed that no such thing ever happened, in the end I still would not have won, because there are two witnesses saying that there was a loan. So what helps if I said no such thing ever happened? True, I didn’t know they existed—they only came afterward—but practically, the alternative claim would not have helped me win in reality. Because if I had said no such thing ever happened and then two witnesses came and said there was a loan, then it wouldn’t help me to say there was no loan, right? I have two witnesses against me. So on the contrary, it’s actually more convenient for me to say “I paid,” because if there are two witnesses that there was a loan, fine, I say there was a loan but I paid it back. I am not contradicting the witnesses. Okay? So that certainly knocks out the force of claim, right? The fact that there are witnesses. I could not have won with the alternative claim. But the “why would I lie” is still here. After all, I still didn’t know that witnesses were coming; they came later. So when I made my calculation and said “I paid,” believe me that if I had wanted to lie I would have said “no such thing ever happened”; I don’t know about the witnesses. So this too is a kind of miggo where you have “why would I lie” but no force of claim. The reverse of a bold miggo. In a bold miggo there is no “why would I lie,” but there is force of claim. Here there is no force of claim, but there is “why would I lie.” And let’s say this would exempt from an oath, for example. Such a miggo can exempt from an oath because the evidentiary dimension of miggo is present here, even though there is no force of claim. Here, by the way, there are medieval authorities who do not explain it this way.

[Speaker D] Maybe—

[Speaker C] If there were any people present at the time of the loan, then he knows that people might come.

[Rabbi Michael Abraham] No, there really are medieval authorities who only—

[Speaker C] What, he thought they wouldn’t show up?

[Rabbi Michael Abraham] No, no, the question is whether there are medieval authorities who really say that in such a miggo there is also no “why would I lie,” meaning there is no such miggo. Why? If witnesses came, then there is certainly a chance that he knew they existed, and therefore he chose to claim “I paid” rather than “no such thing ever happened,” because he didn’t want to be exposed in court as a liar. Understand that if he says “I paid”—that’s why “I paid” is more convenient than “no such thing ever happened”; that’s why it is a bold miggo. Because if I say “I paid,” then even if witnesses come that there was a loan, it is true that I won’t win, but I won’t come out a liar. If I say “no such thing ever happened” and then witnesses come, it will turn out that I was lying in court, and that’s unpleasant. Therefore “I paid” is a more convenient claim than “no such thing ever happened,” even though it doesn’t get me the money. I am taking less risk. Okay?

Yes, so there really are medieval authorities who explain it that way. For example, the Talmud itself says that in the case of one who admits part of a claim—no, admits a fine and afterward witnesses come, yes. So if someone admits a fine and afterward witnesses come, there is a dispute between Rav and Shmuel whether he is exempt. One who admits a fine is exempt. If he admits a fine and afterward witnesses come, there is a dispute between Rav and Shmuel whether he is exempt or not. As a matter of Jewish law we rule that he is exempt even if witnesses come afterward. From the fine? From the fine, yes. Then the Talmud says that if witnesses were already on their way and he ran to admit it, then he will not be exempt. Because basically he ran to admit it because he knew witnesses were about to come; that’s why he confessed. Not because he’s some great righteous person who came to confess, but because he knew witnesses were coming and he hurried to admit the fine in order to be exempt. Okay? So this is similar. In a place where there is suspicion that I knew of the witnesses’ existence, I assume they would not give him his miggo either. But to return to our subject: when two related witnesses come and they say, “We have a miggo”—would we accept it? No, we would not accept it. Why not?

[Speaker C] Because the whole problem—

[Rabbi Michael Abraham] With related witnesses, the whole problem is that they are related. There is no problem that maybe they are lying. Fine? The problem is that they are related. So now if they bring a miggo in their favor, the miggo proves that they are not lying—but I know they are not lying. Even though they are not lying, I do not accept their testimony because they are related. So what does the miggo help them with? Okay. Therefore miggo cannot help someone whose claim is rejected not because of lack of reliability. Okay.

Now then, what happens in an ordinary miggo, where a litigant brings a miggo in his own favor? Without the miggo he would not have won, but he brings a miggo in his favor. And earlier I said that miggo is proof about the person himself, not about the matter itself, right? But proof about the person himself should not help a litigant. Because after all, the litigant’s testimony is not accepted because he is a person related to himself. It’s like a relative. So it makes no difference—even if he is speaking the truth, we won’t accept his words as testimony. So when the miggo proves that he is speaking truth, why does that help? It’s like a miggo that related witnesses would bring in their own favor. You proved that you are speaking truth; we too say you are speaking truth, but you are a litigant, you are disqualified from testimony, your testimony carries no weight. So how can miggo help a litigant at all? Miggo is always proof about the person himself, and that person has a disqualification in his own person—but not because of suspicion of lying. And if it is a personal disqualification, then what does it help? Even if I prove that he speaks truth—so what if he speaks truth? Only if I prove that what he says is true—if he brings two witnesses, then there is no problem. That is exactly the idea that proof has to relate to the matter itself. And when I myself bring proof that I am not lying, the judges will say to me: fine, we didn’t think you were lying, but a litigant—even if he is not lying—his testimony is not accepted.

For example, where do we see this? The Talmud in Sanhedrin 9 says there, “So-and-so sodomized me willingly.” Or on page 25, Bar Benitus, yes—the person says that so-and-so lent me money with interest. It talks about that. “He sodomized me willingly”—not pleasant. So-and-so lent me money with interest. Okay? So they do not accept the testimony about himself that he borrowed with interest. Why not? Because borrowing with interest also makes one wicked. Both the lender and the borrower violate a Torah-level prohibition. Therefore when a person testifies about himself that he is wicked, we do not accept it. Now on the face of it this is strange. Why? Because what do you mean? If he himself admits that he murdered, or that he borrowed with interest, or something like that, then you have no greater proof than that. As our cousins the jurists say, yes, confession is the queen of evidence. Meaning, that’s the best proof there is. So why don’t we accept it?

[Speaker C] And the Talmud says: a person cannot render himself wicked.

[Rabbi Michael Abraham] A person is related to himself, and a person cannot render himself wicked. “A person is related to himself” means that if my brother is disqualified from testifying about me because he is related, then I myself am certainly related to myself. Yes—this always reminds me in this context: I and myself are brothers, because we have the same parents, after all. So I and myself are brothers. If a person—if my brother is my relative, then I too am my own relative, right? So if that’s so, then if they disqualified my brother’s testimony about me, they also disqualified my own testimony about me. Correct? So a person is related to himself; there is a disqualification of relatedness. We do not need another verse to disqualify a person from testifying about himself. The verse that disqualifies relatives—“Fathers shall not be put to death because of sons”—that verse also disqualifies a person from testifying about himself. But the disqualification of relatives is not a disqualification because of concern about lying. Therefore when I too am disqualified, it is not because of concern that I am lying. Even if I brought proof—what would the proof be? The proof is that I’m not—again, admission of a litigant is again proof not about the matter itself, but about the person himself. Admission of a litigant is like miggo, right? When I come and admit that I murdered, or admit that I borrowed with interest, that is proof that I—because it is very similar to miggo. Admission of a litigant too. Admission of a litigant means: if I really were acting out of self-interest, then I would say that I did not borrow with interest; I would not say that I did. That I didn’t steal; I would not say that I did steal. It’s a banal miggo, of course, but it is basically a very, very strong kind of miggo. When I make a claim that harms me, I have a miggo that I could have said something that didn’t harm me. In an ordinary miggo it’s a claim that doesn’t harm me, it just doesn’t help me, and I have a miggo that I could have made a claim that helps me. Here it is a much stronger miggo: you’re making a claim that harms yourself. So clearly I’m not lying—a person doesn’t lie in order to hurt himself. The idea of admission of a litigant is basically the idea of miggo—a stronger miggo, seemingly. So then why, why can a person not render himself wicked? A person cannot render himself wicked because the disqualification is the disqualification of relatedness: a person is related to himself. A person is related to himself, and therefore he cannot render himself wicked.

[Speaker E] And in monetary matters too you wouldn’t rely on him.

[Rabbi Michael Abraham] Now the question arises: so why in monetary matters do we? I’ll get to that. But that’s what emerges regarding non-monetary matters, regarding prohibition and permission. What do we see there? That the disqualification of a person from testifying about himself is a disqualification of relatedness. But if it is a disqualification of relatedness, then once again the question returns: so what does miggo help? We saw that miggo does not help related witnesses, because the miggo proves that they are truth-tellers. Fine, they are truth-tellers; I still do not accept their testimony because they are related. So here too, that they are truth-tellers—fine, the miggo proves that you are speaking truth, that the content of your claim is true; the proof is about the person himself. But proving that the litigant is speaking truth does not help.

If a litigant comes—suppose someone claims from me money for a loan, and the whole question of miggo applies to all the laws of claims and counterclaims, which is why I’m putting it in a much broader context—you’ll see, we’re going to clarify all the laws of claims and counterclaims through this miggo; it’s not just a question of miggo. Someone comes to me and says: I lent you one hundred shekels. And I say: no such thing ever happened. Now two witnesses come who do not say that he lent me, but say: this fellow has never lied in his life; he is careful to speak truth; you’ve never seen anything like it—that’s what they tell the judges. Here are two witnesses saying that the plaintiff here is an exceptionally truthful person, meaning he wouldn’t lie even if a sword were at his neck. Would they extract the money? What do you think—because it’s relatedness they wouldn’t? No, I’m asking: would they extract the money or not? No. Is that like two witnesses? No. If two witnesses come about the loan, they would extract the money, right. But there are no two witnesses about the loan. We know nothing about the loan. What we know is that that person never lies in his life.

[Speaker B] Yes, in any case that still doesn’t seem to count like two witnesses, because it’s not—why? They testify about you, but it’s weaker, more or less. They testify, even in terms of clarifying reality, that you don’t lie. Right.

[Rabbi Michael Abraham] But that—

[Speaker B] That you don’t lie is not testimony. They never saw that you never lied.

[Rabbi Michael Abraham] No, they saw that I did not lie even under circumstances where there was a sword at my neck.

[Speaker E] I didn’t see proof.

[Rabbi Michael Abraham] No, not that I didn’t see—they saw. They saw that there was a sword at my neck and I was prepared to die rather than lie.

[Speaker E] Did the circumstances change?

[Rabbi Michael Abraham] Maybe yes and maybe no, but this is full testimony. Understand, we are dealing in presumptions. There is a plaintiff against a defendant; one of the two is certainly lying.

[Speaker F] Not necessarily, not necessarily, Rabbi.

[Rabbi Michael Abraham] Not necessarily truth and falsehood—not in a case of innocent error. Innocent error is indeed a different point. That’s why I say: where there is truth and falsehood. Not only innocent error. So the point is that proof about the person himself does not help with innocent error; only proof about the matter itself does.

[Speaker F] But I’m not saying—it’s like plotting witnesses. The question is whether the testimony is about reality or about the people themselves.

[Rabbi Michael Abraham] With plotting witnesses, when I ask that same question—and maybe we’ll get to that too—it’s the same question.

[Speaker F] Yes, but what is the goal of the religious court? It’s to know the truth. Suppose you had all the claims in front of you, fine, and the arguments of miggo and presumption and everything, and you know—I don’t know—it’s like the police know about some group that they definitely did it, but they don’t have enough evidence. Okay? Now the reality is clear. Now even if all the evidence were before you, you still wouldn’t rule according to the evidence if you know the reality is the opposite.

[Rabbi Michael Abraham] If you know the reality, then what do I care whether there is miggo or not? You won’t rule that way.

[Speaker F] Why? I’m saying, on the assumption that you know the reality is the opposite, after all all these claims are only because we somehow want to clarify the truth.

[Rabbi Michael Abraham] Once you know the reality, what difference does miggo make? Obviously. But I don’t know the reality. Someone comes and claims—

[Speaker F] —money from me, and I say—

[Rabbi Michael Abraham] As a person, do you know the reality? You know nothing. Now two witnesses come and say that this plaintiff never lies. Fine, so maybe he brought it as a gift rather than a loan. Fine, if two witnesses come that he never lies and two witnesses come that there was no loan, then obviously I’ll accept the second witnesses. There’s no question. Why? Because even when they say he never lies, they are not testifying about this particular case. It could be that this case was exceptional for some reason, or that they interpreted it incorrectly. Testimony is always testimony in statistical terms; even two witnesses are not one hundred percent. So there too—so what? Still, that is certainly better than believing someone else about whom there is no indication at all that he is right. So why shouldn’t we believe him? On the fundamental level we do not believe him because you cannot extract money on the basis of claims. In the end, why am I extracting the money? Because that person says that he lent it. Right, I believe him. It doesn’t matter that I believe him. You cannot extract money on the basis of claims.

I’ll give maybe another example—I think I’ll give another example now. What about a definite claim versus uncertainty? Someone comes and claims from me with certainty, and I answer uncertainly: I don’t remember, maybe you never lent me at all. He says: I gave it, I lent it to you. I say: I don’t remember whether you lent me or not. Maybe, I’m not sure. This is a dispute in the Talmud. As a matter of Jewish law we rule that certainty versus uncertainty does not mean certainty prevails when there is someone in possession. If there is no one in possession, then certainty does prevail. But if the certain claim comes to extract from someone in possession, and the one in possession defends himself with uncertainty, then certainty does not prevail. Once again the same question arises. What do you mean? That person is speaking truth—his claim is certain—and I defend myself with uncertainty. The simplest possibility is to say that he certainly isn’t lying, and I’m not lying either, because I genuinely don’t remember. So all the more so: you don’t remember, but he remembers that the whole thing happened, so return the money. Uncertainty is certainly a weaker claim than a miggo that I could have said with certainty—there, the medieval authorities already ask: uncertainty with a miggo that he could have claimed certainty—so why don’t we believe him on the basis of the miggo? The medieval authorities already ask why we don’t believe him with the miggo that he could have claimed certainty. The answer is that we really do believe him. We believe him that he is uncertain. Fine. Now let him pay. I believe you that you don’t remember. Fine, I’m not claiming you’re lying. But practically, you borrowed, so pay.

So I’m saying: what do we see here? That even if the plaintiff is probably speaking truth, you cannot extract money on the basis of claims. In order to extract money you need to bring evidence, even if you are speaking truth. Proof about the person himself will not help, because proof about the person himself at most ends up turning your claim into a good claim. Why does the court extract the money? Because of your claim, not because of the proofs. The proofs only turned the claim into a good claim. Money is not extracted by means of claims. Money is extracted by means of evidence. Therefore, this means that proofs must be about the matter itself and not about the person himself. Proofs about the person himself are not accepted. Come in a moment, okay? And then the question arises: so why does miggo help? Miggo is proof about the person himself. Admission of a litigant too, by the way, is proof about the person himself. We’ll talk about that too. Fine.