Migo and Legal Reasoning, Lecture 3

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[Rabbi Michael Abraham] All right, so then I would win. Right. But no—that doesn’t work for me. It won’t help. If I grabbed it in front of the judges, they’ll take it from me and give it to him. In front of the judges. Yes. But not in front of the judges. No, a person taking the law into his own hands is a different discussion. I’m talking about where he grabbed it before that—that’s a different story. If he grabs it after the doubt has already arisen, that’s what Tosafot at the beginning of Bava Batra calls possession after the doubt was born. Possession after the doubt was born doesn’t help. Meaning, the status of possession is determined at the moment the doubt is born. Okay? This reminds me of an interesting Shakh in Takfo Kohen. The Shakh says there: what happens, just in parentheses, when there’s a dispute among the medieval authorities (Rishonim)—say, Rashba and Maimonides on some issue—and a case comes before some judge. He knows that on this law Rashba and Maimonides disagreed. So the Shakh says that in such a case, apparently there would be no possession status at all, because the person holding the item got it after the doubt was born. The doubt was born in the 12th century when Rashba and Maimonides argued. So that’s possession after the doubt was born, and there should be no possession status at all in such a case. So he says no. An interesting answer. Why not? Why should I care that Rashba and Maimonides are arguing? The doubt is born at the moment the judge is in doubt. Because if the judge weren’t in doubt, he would rule as he thinks. Why should I care that Rashba and Maimonides are arguing? It’s a kind of autonomous view that says: the fact that there’s a dispute among the medieval authorities (Rishonim) doesn’t mean I also have to be in doubt. If I’m in doubt which one is right, then I’m in doubt. But if I think Rashba is right, then I’ll rule like Rashba. So if that’s the case, when did the doubt arise? Not when Rashba and Maimonides argued, but now, when the case came before me and I’m in doubt. So if the person is in possession at that moment, then that’s possession from before the doubt was born. Fine, that’s just an anecdote. The Shakh was someone with a very, very autonomous conception of halakhic ruling. I once gave a series of lectures comparing the pamphlet Takfo Kohen with the Kuntres Ha-Sefekot, the brother of Ketzot. Both deal with the same issue, answer the same questions—it was written בעקבות the Shakh, after Takfo Kohen, but they answer differently. There are really three central questions in those pamphlets, and they answer differently on each of the three. And you can see very consistently that the Shakh goes in the autonomous direction, while Kuntres Ha-Sefekot goes in the precedent-based direction. You follow precedents, not what the judge decides. Right, so basically we have a legal rationale that says the one in possession has the upper hand. Now, what is “in possession”? “In possession” means: if I took a snapshot of the situation at the moment you arrived at the religious court, before you opened your mouths, what was the state of things? Was the object in your hands? Then if nothing happens, that’s what will remain at the end too. Usually that’s the simple case of possession. With land, for example, possession doesn’t have much significance. “In possession” there means the prior owner. That is, the prior owner of the land—the last known owner of the land before the doubt arose. No, with land there’s no possession. No, three years is a three-year presumption, but that’s not possession. Plainly speaking, there’s no possession with land. Some say maybe there is after three years, but the simple view is that three years is evidence, not possession. It’s evidence that you bought it, but I’m in possession—I’m the prior owner.

Now, what does “migo as the force of a claim” say? This is what the Kehillot Yaakov argues. Migo as the force of a claim: say you come to me demanding that I return money, and I say, “I repaid it.” That means I’m really admitting there was a loan—that’s what makes you a creditor, because I’m saying I repaid it. There was a loan; I’m just claiming I repaid it. Fine—if there was a loan, prove that you repaid it. No, I want to be believed on the basis of migo, because I could have denied it. I could have said there was never any loan at all. Now, to explain the force of the claim: since I could have denied it, what would have happened if I had denied it? If I had denied it, the money would remain with me. If I had denied it, I would also be the one in possession, not just the winner, right? Now I made you into the one in possession by admitting there was a loan, just that I repaid it. Right? Which means that really your possession status was created after I opened my mouth. Before we opened our mouths, I was the one in possession. That’s migo as the force of a claim. Meaning, migo as the force of a claim means… that I could have made you go away entirely with another claim. Of course this works even better when we’re talking about “the mouth that forbade is the mouth that permitted,” because there all your force really comes from me. So there it’s much easier to say that this is the force of a claim. So maybe explain it there. Right, I’m sitting on land, and someone comes and says, “What are you doing on my land?” So I say, “This isn’t your land at all—what do you want from me?” Then there’s no problem, right? He can’t do anything to me. Now I say, “No, the land was yours, but I bought it from you.” And I haven’t been there three years, because after three years I’m believed anyway. But after one year, I say: “You’re right, the land—well, you don’t have witnesses that the land was yours, but I admit the land was yours, only I bought it from you.” That’s called “the mouth that forbade is the mouth that permitted”; that’s migo; it’s also ultra-migo. Why? Because with this migo, really, I could even have stayed silent. Meaning, I didn’t have to say anything to you. You have no power to claim anything from me at all—who are you, anyway? I wouldn’t even have had to answer you. That’s migo of “if he wanted, he could have been silent”—a migo where he could have stayed silent. He wouldn’t even have had to lie in order to win; he could simply have stayed silent. What’s the idea behind that? Why is it stronger than migo? So it also has a stronger clarifying force than ordinary migo. Because staying silent is easier than lying. An even stronger claim: after all, I could have won even without lying. So how can you say that now I’m lying in order to win? It’s also a stronger “why would I lie?” But here there’s something else too. In “the mouth that forbade,” if I had remained silent, I would have won. So it turns out that I’m the one in possession. Not you—I’m the one in possession. Because if we hadn’t opened our mouths, if we took a snapshot of the situation before the parties opened their mouths, I would win, right? So if that’s the case, I’m the one in possession. Now bring proof that it’s yours. Even though—I admitted the land was yours and that you’re the prior owner, and I’m only claiming that I bought it from you. Even though on the regular legal level you are the one in possession, because you were the prior owner. But since if I hadn’t opened my mouth we wouldn’t even know that, we wouldn’t know that you were the prior owner; all we’d know is that I’m sitting on the land and you suddenly pounce on me and nobody knows what your connection to the matter is—then I would be considered the one in possession. So because of that, it gives me possession status.

Now, the claim in migo as the force of a claim is that even in ordinary migo, which isn’t “the mouth that forbade”—which is more novel—but still, since I had the power to win through claims alone: true, I had to open my mouth, it’s not like “the mouth that forbade.” I had to open my mouth and lie. But if I had opened my mouth, I could have won through claims alone, without bringing evidence. Right? That’s the meaning of migo. So migo means I could essentially have won without bringing any proof; I would simply have said something else. The ability to win by claim alone—that’s what’s called being in possession. Ordinary possession is like someone who wins even without a claim; it’s simply in his hand. Meaning, if we don’t open our mouths, it remains with him—that’s all. Okay. But we also know that possession requires a claim. If someone claims against me, I have to explain what’s going on. “I never stole”—that’s also a claim, but you have to say something; you can’t stay silent. Because a presumption without a claim is not a presumption. And possession without a claim is also not possession. You have to make a claim; it’s not enough that you’re holding it. So true—but the accepted conception is that possession as such doesn’t need the claim. It’s only in order for the possession to help that I also need to make a claim. If money is with me and you claim it from me and I say nothing, then obviously I have to pay you even though I’m in possession. Why? Because I’m not claiming it’s mine. So why should the religious court rule in my favor? We said that the litigants each have to tell the court what they want from it, right? If you don’t say that you want this money, why should the court rule in your favor? So obviously you need to make a claim for the possession to operate. But to define you as being in possession, you don’t need the claim. You’re in possession simply because the money is with you. Right? Now what I basically want to argue is that I’m in possession as long as I can win through a claim. It’s not just a snapshot of the situation, but before we start bringing witnesses and presumptions and proofs and documents and all sorts of things like that. If someone can, by moving his lips—that is, by claim alone—win the case, then he is considered the one in possession. And that’s the rationale of migo as the force of a claim. Because migo as the force of a claim basically says: after all, I could have won without bringing any evidence. That’s what’s called being in possession, no? Whoever can win without evidence is called the one in possession. The claimant is the one to whom we say, “My friend, you’re not going to win unless you bring proof. One who seeks to extract from another bears the burden of proof.” But I have migo: if I had made that other claim, I would have won without bringing evidence. Which means I have the power to win without evidence, so I’m the one in possession. That’s migo as the force of a claim; that’s how the Kehillot Yaakov explains it. And again, that doesn’t mean I’m right. And it’s not proof that I’m right. But as we said, proof that I’m right doesn’t necessarily work for a litigant, for a party to a dispute. But there is a legal rationale here, similar to the legal rationale of possession. The legal rationale of possession says that whoever has the initial power before we start bringing evidence is the one who will leave the court with the money unless someone brings proof. If no proof is brought, then the one who can win through a claim is the one who wins. That’s all. I also get to this at the end of the pamphlet here, but for now let’s leave it.

So the rationale of migo as the force of a claim is basically drawing from the rationale of possession. And again, this is not a rationale like “why would I lie?” It’s not a rationale that shows I’m right, that I’m not lying. It’s a legal rationale: if I’m the one in possession, I have an advantage, and they need to bring proof in order to extract from me, because I’m the one in possession. And here—maybe let’s open Maimonides again, Laws of Claims and Defenses, chapter 6. We read the first half; now I’ll read the second half. Chapter 6, law 1. Okay, so I brought this Maimonides—here it’s divided into separate laws; I know it as one long law. I read the first part of Maimonides, if you remember. Maimonides says there that if someone claims against me, it’s not enough for me just to say, “I don’t owe you.” So Maimonides says the court tells him, “That’s not a proper answer. Explain why you don’t owe him.” Why? Because maybe he genuinely thinks he doesn’t owe him—but he’s mistaken in the law. For example, if you repaid him the money but gave it to his young son. That’s not called repayment; you have to give it to the person himself, the child isn’t responsible. So because of that, you really think you repaid because you don’t know the law. So we’re not suspecting that you’re lying. But explain to us why you think you don’t owe him, because if the explanation is that you gave it to the little child, we’ll say, “Listen, you just didn’t know the law, but you owe him.” Therefore, says Maimonides, we require explanations. Now he says—no, that’s chapter 1. Chapter 6—how do I get to chapter 6?

[Speaker E] Do you have it up there? I believe so. Yes. There are fingers here.

[Speaker B] Down below.

[Speaker I] That’s chapter 1, wait.

[Rabbi Michael Abraham] I’m getting to the top. These are chapters, yes, okay, I pressed it—why isn’t it going up? Why isn’t chapter 6 coming up? Old phone. No, maybe not my fingers, but I did see the six light up, I don’t know why it’s not going up.

[Speaker E] There are probably just two pages here, wait. Great, thanks.

[Rabbi Michael Abraham] So this is what Maimonides says: litigants who come to court—if one of them claims and says, “He has a maneh of mine, because I loaned it to him, or deposited it with him, or he stole from me, or he owes me wages,” and anything similar. And the defendant answers and says, “I owe you nothing,” or “I have nothing of yours in my possession,” or “He is making a false claim”—that is not a proper answer. Meaning: spell out for me why you owe him nothing. “And why is this answer not accepted from him? Because perhaps he is mistaken in his understanding”—meaning, maybe he doesn’t know the Jewish law. “Therefore they say to him: how can you say, ‘I owe nothing’? Perhaps according to the law you are obligated to pay and do not know it. Rather, explain the matter to the judges and they will inform you whether you are obligated or not.” Now look at the addition—up to here we read last time. “Even if he were a great sage.” What about a great sage? A great sage—there’s no concern; he knows the law. So it should be enough that a great sage can say, “I owe you nothing.” Now notice: we’re not concerned that he’s lying because he’s a litigant. It doesn’t have evidentiary weight, what he says. Therefore it makes no difference—the sage can also be a liar—but there’s no problem; there’s no concern here of self-delusion. He says, “I owe you nothing,” and that’s it. That should be enough.

[Speaker F] He knows the law, but maybe he doesn’t know the facts. He thinks it’s the son or someone similar, some commercial situation.

[Rabbi Michael Abraham] Could be, although Maimonides doesn’t address that. Maybe. It really needs thought. There could be such situations too, where unfamiliarity with the facts leads someone astray. Maybe. In any case, he says: “Even if he were a great sage, they say to him: you lose nothing by answering his claim and informing him how it is that you do not owe him—whether because the matter never happened, or because it did happen and you returned it to him.” Don’t worry—you lose nothing by spelling it out. So here the sage is playing two roles. First of all, he asks why the sage also has to spell it out. A sage knows—there’s no problem, there isn’t the previous problem. That’s how we would think the problem with the sage works, and therefore he needs a special explanation for why even a sage has to spell it out and not only an ordinary person. He says no: the sage is afraid he’ll lose. The sage has another reason not to spell it out. Because the sage knows the truth is that he repaid it. Fine? Now the sage is always a sage, meaning he knows that if he says “I repaid it,” he’ll lose. But if he says “It never was,” which is a lie, then he’ll win. But the truth is he really did repay it. Meaning, he’s not a robber—he wants the truth to come out—but he’s a sage, so he knows: “If I say ‘I repaid it,’ I’ll lose.” I repaid him and he comes to claim from me—just a liar. So how am I supposed to deal with this liar? I’ll lie back to him in such a way that the money—which really is mine—stays with me.

[Speaker B] The truth will come out.

[Rabbi Michael Abraham] Right? It’s just a crooked way of bringing the truth to light. But he forced me into it—he lied to me. Fine, after all this guy is a liar. If I preserve my honesty, I’ll just pay him the money. Understand—a normal person would do such a thing. There’s no—I’m not even sure this is forbidden, by the way, to do this. It’s an interesting question whether you’re allowed to do such a thing. But, but, but the court tells him: spell it out. What—okay. You want to? It’s like one boundary between a sage and a non-sage. I don’t know if it’s a sharp line, but someone who’s sufficiently beyond the line so that we have no concerns about him. So Maimonides says: we reassure him. Why? “For we judge on the basis of ‘since he could have said’ in every place.” Maimonides says: don’t worry, there is a law of migo in Jewish law. Everything is fine. You won’t lose. Meaning, if you claim “repaid,” if the truth is that you repaid, fine? Now you’re a Torah scholar, and you know that if you claim “repaid” you’ll lose, so you want to lie to the other person because he’s a liar and you don’t want him to profit from your money. So the court tells him: don’t worry, there is migo. Even if you claim “repaid,” you have migo, because you could have claimed that nothing ever happened, and the claim of “repaid” will receive the force of the claim that nothing ever happened. So don’t worry—you will never lose. You can tell the truth. We are calming you down: you can tell the truth. So what is Maimonides really saying here? What he’s really saying here is that your status is not harmed by the fact that you claim “repaid.” Your status is determined by the best claim you could have made. Therefore you don’t need to lie. Just say the truth. You don’t have to be afraid. Say the truth, because your status is determined by the best claim you could have made. Why really? Because the status is possession. Meaning, if the best claim you could make would let you win the case, then you are the one in possession. So the burden of proof is on him. That means that now, what we do is scan all your possible claims, take the best claim you could have made—that’s your status. From there the discussion begins. Now the discussion begins; now you’ll speak, he’ll speak, we’ll bring evidence—we begin the deliberation. But the possession, the status of each side, is determined not by what he says, but by the situation before he says anything. Now the situation before he says anything—notice, when we look at migo this way, then it’s not that I say “repaid” and we say, after all he could have said “nothing ever happened” or “forged.” He hasn’t opened his mouth yet. The fellow claimed the loan from me. I haven’t opened my mouth. The court immediately runs through the whole list of claims he could make. It takes the best one, entirely regardless of what he actually says. He doesn’t need to open his mouth. The best claim he could make is “nothing ever happened,” because the other side has no proof. If he did have a validated document, I couldn’t say “nothing ever happened,” couldn’t say “repaid”—he’d have the upper hand, nothing would help me. But if he comes with an oral loan, and has no proof that I borrowed, now I claim “repaid” and then I’m in trouble and maybe I’ll have migo and maybe not. But the point is that this calculation is done before I even open my mouth. The court scans all the claims I could have made, takes the best one—that is your legal status. So now you see that in fact migo is not activated after I claim something. Migo is a calculation done before I open my mouth, because it determines my status before the discussion begins. It determines who is in possession. That’s migo as the force of a claim. And therefore the force of the claim really does determine my possession, because it truly determines my status before we opened our mouths. True, in order to say this I need to open my mouth, but the court doesn’t wait for me to do so. The court already opens its mouth for me. It says: he could have said “nothing ever happened,” so his status is that of someone who claimed “nothing ever happened.” Now let’s begin talking. Now he’ll claim “repaid,” and fine—but he is someone in possession claiming “repaid.” He is not a claimant saying “repaid”; he is someone in possession saying “repaid.” Why is he in possession? Because he had a strong claim he could have made. The strongest claim he could have made—that’s what determines his status. That’s what Maimonides writes here.

The continuation of Maimonides, by the way, is also interesting, but that’s for another time. The point is, now this is not accidental. Meaning, you could read Maimonides as though this is just a lucky break: wow, we happened to land on a wild card—we have a way to prevent people from lying because of migo. The “why would I lie?” which has nothing to do with this calculation—the “why would I lie?” that says if I wanted to lie I’d have lied better—so because of that migo we also happened to solve another problem, even though we didn’t want to solve it at all. What problem? That a Torah scholar would be forced to lie in order to save his own money. By chance it happens to solve that too… No, it’s not by chance. That’s migo. Migo is not “why would I lie?” Migo is this—it’s the force of a claim. We invoke migo everywhere to make sure you won’t need to lie. Because your status is determined by the best claim you could have made. Besides that, there are also “why would I lie?” considerations—sometimes yes, sometimes no. We saw a bold migo, where maybe there is no “why would I lie?” But first of all, in every migo there is—almost every migo, not every migo—almost every migo has force of claim. And that is the fundamental thing in migo.

Now, that’s one formulation—the formulation of the Kehillot Yaakov. There is another formulation in Kovetz Shiurim, which calls it “the force of credibility.” Instead of what? As an alternative to “why would I lie?” Meaning, the formal explanation for migo, not the logical explanation that if I wanted to lie I would have lied better. So he calls it “the force of credibility” and not “the force of a claim,” and what he means is the following. Maybe I’ll illustrate it by means of an example.

[Speaker B] But there are medieval authorities (Rishonim) who already dealt with this theory of “why would I lie,” aren’t there? After all, these are two later authorities from the most recent generations.

[Rabbi Michael Abraham] Explicitly, you could say—there’s Barukh Ta’am, who is apparently the first to raise this, which means the middle of the 19th century, I think—that’s the first time it was really put on the table. But there is such strong evidence that it’s already there in the Talmud and in the medieval authorities (Rishonim), that clearly it probably was there—but it is surprising that none of them formulated it. Meaning, no—it’s interesting. But yes, among the later authorities of our era, in the Lithuanian yeshiva world, this got sharpened. So as I say, it appeared earlier in Barukh Ta’am, but they were the ones who formulated it explicitly. What is “force of credibility”?

[Speaker E] What are you looking for? Maybe I’ll find it for you on Google.

[Rabbi Michael Abraham] No, that’s it—I need to remember. It slipped my mind. Rashba talks in one of the cases here in Bava Batra, somewhere around page 33, if I’m not mistaken. He calls it migo against witnesses, and everybody is astonished, because it’s not really migo against witnesses. I’m trying—page 33, the Maharshakh asks on Rashba in some matter—for some reason I forgot where the… ah, here it is. Anyway, I have another example here that’s simpler, just more complicated. There are two examples that I… The principle is this. I can’t find the exact case right now, but the principle is this: a person comes and says, let’s say, “repaid,” with a migo of “forged.” Fine? Now—

[Speaker E] Could it be that it’s on

[Rabbi Michael Abraham] page 33b?

[Speaker E] Look on page 33b.

[Rabbi Michael Abraham] Yes, look on 33b, but…

[Speaker E] “This one says, ‘It belonged to my fathers,’ and this one says, ‘It belonged to my fathers’; this one brought witnesses that it belonged to his fathers, and that one brought witnesses that he had eaten its produce for the years of presumption.” Okay. And then they say that Rashbam says this isn’t really migo against witnesses, but rather witnesses against a claim supported by migo.

[Rabbi Michael Abraham] No, no, no—that’s something else.

[Speaker H] There’s the case there of migo that he could have said, “I didn’t eat the produce,” again? Wide lines, second line.

[Rabbi Michael Abraham] There’s an admission there—his admission, his admission. Here, yes, that’s it—the case of the forged document. He says this is the case we talked about on 32b. The case we discussed earlier, where the person basically whispered to the judge that the document he was holding was forged, but he had another document that was valid. Now he has migo, because he could have stayed with this document and said that this document was good. Fine? So Rashbam argues that the amora who doesn’t accept this migo—Rav Yosef, who doesn’t accept this migo—that’s because it’s migo against witnesses. Why is this migo against witnesses? Because he himself admitted, he himself admitted, that the document is forged. Therefore it’s migo against witnesses. He has his own admission as a litigant that the document is forged. Fine? So Nachmanides and the Rosh ask: who are the witnesses?

[Speaker H] A litigant’s own admission is like a hundred witnesses.

[Rabbi Michael Abraham] Right. So Nachmanides and the Rosh ask—in my formulation—migo against witnesses is when I make claim A, I have migo because I could have made claim B, and there are witnesses against claim A. So there is migo in favor of claim A and witnesses against claim A—that’s migo against witnesses. What happens if there are witnesses against claim B? Then there is no migo.

[Speaker B] No migo.

[Rabbi Michael Abraham] Right. That’s not migo against witnesses. In such a case there is no migo, because I couldn’t have made claim B, since there are witnesses against it. Now in this case of Rashbam, the witnesses are against claim B, not against claim A. So why does he call it migo against witnesses? Why? Because he says: “I had another document that was valid”—that’s the claim he is making, that’s claim A. What is claim B? “I could have stuck with the claim that this document is a valid document”—that’s the alternative, that’s claim B. And against that there is his admission as a litigant—he said this document is forged. So you can say I have no migo because there are witnesses against the alternative claim, but how do you call that migo against witnesses? That’s their question against Rashbam.

There’s another example of this, so now I’ll explain it according to force of credibility—why you actually can call this migo against witnesses. The point is basically this, and it goes back to the Maimonides I read earlier. Suppose I claim “repaid” with migo of “nothing ever happened” or migo of “forged.” Now the court basically makes the calculation from Maimonides that I quoted earlier. They say: after all, I could really have won with the claim “nothing ever happened” or “forged.” The court basically says: as far as we are concerned, you are claiming “nothing ever happened”; you’re not claiming “repaid.” In your mouth you say “repaid”; from our standpoint, you are claiming “nothing ever happened.” And what’s the idea behind that? The idea is—take a lawyer who is defending a client he himself doesn’t believe. The question is whether it’s ethical to defend such a client. Who doesn’t believe him? The lawyer himself thinks he’s a thief. If he has evidence, then I think he’s not allowed to, but if not—he has no proof, but his impression is that he doesn’t believe the man, no, it’s obvious to him that he stole, fine? Is he allowed to defend him? I think the accepted view over there among that crowd is that yes, you can defend him. Why? Livelihood. What? Livelihood.

[Speaker E] Why? Because he can go to another lawyer who does believe him.

[Rabbi Michael Abraham] Right, that’s also true. So that’s his migo—but what about the lawyer’s migo? But the lawyer basically says: when I say he didn’t steal, I’m not making a factual claim in court and lying. I’m setting an evidentiary threshold for the prosecution. There’s no evidence, as it were. Exactly. In order to convict him, you need to prove it. Let’s say I argue that the person—you claim he came in through this window and that’s how he robbed the house. I say that actually he went on a diet—he used to be fat—and he couldn’t have fit through that window. That’s what I argue. Now I have no proof that he went on a diet, and I don’t even think he went on a diet. I’m arguing: maybe he went on a diet. A normal person doesn’t fit through that window; now he’s thin, maybe he recently went on a diet. Now that claim is not a claim telling the court that he went on a diet. Rather, the claim says: you, the prosecutor—if you want to convict him, you’ll have to prove that he did not go on a diet. Meaning, all the lawyer’s claims do is set an evidentiary threshold for the prosecutor. The lawyer is not serving as a witness here. If he were serving as a witness, that would be a lie; he can’t lie in court. But if he is merely telling the prosecutor what threshold he has to cross in order to convict my client, that’s perfectly fine. Because even if I think he stole, people go to prison only on the basis of evidence; an impression that he stole is not enough. Therefore I have to define what evidence is required in order to send him to prison, and that’s what I am saying here when I make the claim as a lawyer. I’m simply telling you what evidence you have to bring in order to get over that hurdle, in order to manage to convict him.

Now, that’s the idea of migo. In the idea of migo, the judges are basically the lawyers. And they say to the claimant: listen, after all, you have no proof whatsoever that there was a loan—what are you building on, his good nature? He admitted there was a loan, only he claims he repaid it. You have no proof that there was a loan at all, so we say “forged,” “nothing ever happened.” We say to the person: that is the best claim he could have made; we will make it. Why? Not because we really rule that “nothing ever happened,” but because as long as you don’t prove that there was a loan, don’t build on his good heart and then sue him on the basis of that. Meaning, we are setting an evidentiary threshold for the claimant. That’s how migo as force of credibility works—not force of claim. Earlier I said that the court makes the calculation and you come out as the one in possession. Meaning, if you could have won with a claim alone, without evidence, you are in possession. Now this is another formulation: the court is actually making, on your behalf, the claim that you could potentially have made.

[Speaker E] Is there any practical difference to this distinction?

[Rabbi Michael Abraham] Yes. For example here with Rashbam. There it’s only a practical difference for the explanation, but there are real practical differences too. Here in Rashbam’s case—let’s go back to Rashbam for a second—Rashbam basically says: when I say that the document I’m presenting in court is forged, and I had another document that got lost, okay? And I have migo, because I could have stuck with the claim that this document is valid, that it isn’t forged at all. Now there is my own admission as a litigant that this document is forged. So this migo, says Rashbam, is migo against witnesses. Why is it migo against witnesses? After all, the claim that this document is valid is claim B; it is not claim A, which I could have made. Claim A is the claim I am actually making: that I had another document that was lost, and I recovered the money. I only could have made claim B, that the document I’m presenting to you is not forged but valid. Against that there is my litigant-admission. I already admitted earlier that it’s forged. Why is that called migo against witnesses? Why doesn’t that just collapse the migo? That’s the question the Rosh and Nachmanides ask, right? It’s simply not migo—not that it’s migo against witnesses, but there just is no migo. No—because I am basically considered as though I am claiming that this document is valid. The court claims on my behalf that this document is valid. I myself say the document is forged, I just had another document that was lost, but the alternative claim—claim B—is that this document is valid. The court claims that for me. Now I myself admitted that it’s a forged document, so this is migo against witnesses. Meaning, because claim B, which I could have made, is the claim that I am in effect making. When the migo is for that claim, and the witnesses are against that claim, that is migo against witnesses. Understand? That’s why Rashbam says this is migo against witnesses.

Maybe I’ll bring another example, from the property of the house of Rav Avin. A person comes—he snatched an object, that’s on the next page. A person came and snatched an object from someone else. Now there is one witness that he snatched it. If there are two witnesses that he snatched it, then he has to return it. That’s what I talked about before. If there are no witnesses at all that he snatched it, then he would win by migo. Because he can deny that he snatched it at all; he can say he didn’t snatch it at all. What happens when there is one witness? The Talmud discusses this—that’s the silver ingot of Rabbi Abba. He snatched an ingot, and there was one witness to the snatching. Now in principle, one witness obligates me in an oath. Right? Two witnesses obligate payment; one witness obligates an oath. So I could have denied it and said, “I didn’t snatch it,” only then I’d have had to swear. Right? Because the witness says that I did snatch it. I’d have had to swear, but I would have won. Now the question is whether something like that creates migo or doesn’t create migo. That’s the discussion of the medieval authorities (Rishonim) here. Because if the alternative claim would have forced me to swear, maybe that’s why I didn’t make it—because I didn’t want to swear, and for all sorts of other reasons. But then Tosafot asks: so let’s make him swear on the claim he is actually making, namely, “I snatched my own property,” and then there won’t be any problem. Because with the alternative claim of “I didn’t snatch it at all,” the migo claim, I would have sworn against the witness. And now too we force him to swear. If in both claims I would have had to swear, then the migo remains intact. Because if in claim A, the one I’m actually making, I don’t have to swear, and I only have another better claim that I could have used to win but then I would have had to swear, then that’s not migo—because maybe I didn’t make that claim because it would have forced me to swear and I don’t want to swear. But if I have to swear in any case, if they’ll also make me swear on claim A, then what’s the problem? Then I have migo. I could have made claim B, because as for swearing, I have to swear either way, so at least I would have made the better claim. That’s Tosafot’s question.

Now the question is: what is this proposal of Tosafot—that migo, and this oath that I swear that I snatched my own property? I’m not swearing here against the witness. The witness claims that I snatched it, and I also agree that I snatched it, so what exactly am I swearing about? It’s a kind of oath that we invent just to save his migo. Some rabbinic oath like that, which Tosafot proposes: let’s invent an oath, let’s obligate him to swear that he snatched his own property, because that will save his migo. What kind of oath is that? At the end, Tosafot brings an opinion from which it emerges that this is a Torah-level oath, the oath of one witness. But how can you understand that as an oath of one witness? I agree with the witness—the witness says I snatched it, and I also say I snatched it. I’m not swearing against him, I’m not contradicting the witness. How is this the oath of one witness? The claim is: this is migo as force of credibility, again. After all, I’m claiming “I snatched my own property,” with migo that I could have said, “I didn’t snatch it at all.” Right? If I had said, “I didn’t snatch it at all,” I would have been obligated in the oath of one witness, because the witness says that I did snatch it. So I would be contradicting him. But now I claim, “I snatched my own property.” It’s not that I claim “I didn’t snatch it at all”; I claim “I snatched my own property.” That doesn’t clash with the witness. Here there’s no oath obligation. Tosafot says no—there is an oath obligation here. Why? Because I am considered as though I am claiming “I didn’t snatch it.” That’s migo as force of credibility. I am basically claiming, “I snatched my own property”; I have migo because I could have said, “I didn’t snatch it.” According to the force-of-credibility conception, the claim I am making is really claim B—

[Speaker B] not claim A. I’m not swearing.

[Rabbi Michael Abraham] So I am basically making the claim “I didn’t snatch it.” Therefore, in principle, I’m obligated in the oath of one witness, because there is one witness saying that I did snatch it. Now in practice I say, yes, I snatched it. So Tosafot says, fine—then we’ll administer this oath of one witness on what you are saying. But still, you are obligated in the oath of one witness. Because if this weren’t force of credibility, then there would be no place at all for a Torah-level oath. You’re not contradicting the witness at all, so why swear? That really is how everyone learns it, and Tosafot at first explicitly says that this is a rabbinic oath. But at the end, Tosafot’s language is precise in implying that this is a Torah-level oath, that he is obligated by the Torah to swear. Then the question is: how can you understand such a thing? I think only with migo as force of credibility. Essentially I am considered to be claiming “I didn’t snatch it.” That contradicts the witness, and that obligates me in an oath. True, in practice they won’t make me swear “I didn’t snatch it” when in court I say “yes, I snatched it, but I snatched my own property,” so let’s translate that Torah-level oath obligation—swear about what you do say.

[Speaker B] What kind of oath of one witness is this, where I’m not even swearing about what they testify to?

[Rabbi Michael Abraham] I’m obligated in an oath because there is a witness against me.

[Speaker B] That I understand. But to call it the oath of one witness?

[Rabbi Michael Abraham] Yes, because I am basically considered as though I claim “I didn’t snatch it”; that’s what the court claims on my behalf.

[Speaker B] And on that I swear?

[Rabbi Michael Abraham] It doesn’t matter. The court claims on my behalf, “I didn’t snatch it.” Do you agree that then I would have had to swear?

[Speaker B] I’m talking about the oath—the oath is on that.

[Rabbi Michael Abraham] So hold on a second, let’s do this in stages, and maybe then it’ll make sense. Look, if the court had argued for me, “I didn’t snatch it,” then the witness would testify against me and I’d have to swear, right? So the court is basically arguing for me, “I didn’t snatch it.” So I am basically obligated in the oath of one witness. Now I can’t swear that, because I’m claiming I snatched my own property. What should the law be? Since he cannot swear, he pays. Because I am obligated in an oath, there’s a witness, I can’t swear, because in the end I’m… agreeing that I snatched it, and I can’t swear that I didn’t snatch it, so since he cannot swear, he pays. But that comes out absurd. It comes out absurd, because what it means is that if I had contradicted the witness, I would have won the case. But now that I agree with the witness, I won’t win?

[Speaker B] Yes, but that also—so—

[Rabbi Michael Abraham] Then exempt me from the oath. But to say that I have to pay because I can’t swear? So that’s why I say no—we’ll make you swear what you did say. And that way you’ll win. Because you deserve to. If all that obligates you is just one witness, if all that stands against you is only one witness, you have the right to swear and be exempt. Now true, here the reality is that you can’t swear against the witness, so swear on what you do claim. Like with heirs, for example, when one witness comes and says that their father was in debt. The heirs can’t swear; they don’t know whether their father owed or not. What do we do in such a case? At least let’s make the heirs swear that their father never told them he repaid it. Let them at least swear on what they do know. Now there’s room to say that this is a Torah-level oath, even though it’s not the standard form of the oath, because in these circumstances—you can’t exempt him without an oath, and on the other hand to make them pay because they don’t know is absurd. So what do you do? Let them swear about whatever is possible. But this is still a manifestation of the oath of one witness. This is that oath of one witness. I think this too is an example of migo as force of credibility.

So we basically have two formulations. One formulation is force of claim: the ability to win through a claim turns me into the one in possession. That’s the Kehillot Yaakov. Kovetz Shiurim says no: really, he is the one in possession, not me. But I win because I am actually treated as though I had made that other claim. I am considered as though I made it; the court makes on my behalf the claim that I myself could have made. Okay? And therefore I win. That is this force of credibility. It doesn’t turn me into the one in possession; rather, I simply win because I made that claim, and with that claim I certainly win. Okay? Those are the two conceptions of the alternative to “why would I lie?”