Q&A: The Role of the One Witness in Rabbi Abba’s Ingot Case
The Role of the One Witness in Rabbi Abba’s Ingot Case
Question
Hello Rabbi,
I am currently studying the passage about the ingot case, and I haven’t managed to arrive at a clear understanding of the role of the witness.
Does the witness who testifies about the snatching also *now* impose an obligation on the snatcher to take an oath? Or would he impose such an obligation only if the snatcher were to claim, “I didn’t snatch it” (which is what knocks out the migo)?
At first glance, Rashi and Rashbam seem to indicate that he indeed imposes it even now, but:
A. I saw in the later authorities (who, as is well known, struggled with why the Talmud needs to invoke the rule of “since one who is obligated to swear but cannot swear must pay,” given that he has no migo anyway), that in the final analysis they explain the Talmud’s conclusion with “since” as a kind of
secondary use of that rule, as proof for a certain point from which one can derive that the migo is void (for example: that from the law of “since” it is proven along the line that one witness is like two, except that an opportunity was given to exempt oneself… and consequently the migo is ineffective because it is a migo to extract money, and the like). From their interpretation it really seems that the “since” here is not truly an application of “since,” and presumably he also is not actually obligated to take an oath, because then their questions would return.
B. In addition, what is the logic that the witness should obligate me to swear when I am not denying him? If so, I can always bring one witness who agrees with the other side’s claim, and thereby obligate him to take an oath, and then since he cannot swear, etc.
C. Also, I in fact saw in the responsa Mishpetei Uziel that he writes as follows: “And his words are very puzzling in my humble opinion, for in Rabbi Abba’s ingot case the first witness would not have obligated an oath, since there is no one opposing him who denies him; rather, the first witness was effective only in this respect, that the defendant was not believed in his claim to say, ‘I snatched what was mine,’ through a migo that he could have said, ‘I did not snatch it.’”
On the other hand, as I said, from Rashi and Rashbam it sounds like he does obligate an oath now. Also, if he does not obligate an oath now, then there is here a brazen migo, and even if he swears now, although that proves he is among those who are brazen, still the migo is void, since we have found an explanation for why he claimed, “I snatched what was mine”: because he wanted to avoid swearing. Only now, when if he does not swear he will lose, he prefers to swear. But initially he certainly preferred not to swear.
Does the Rabbi have a clear explanation of this?
Answer
If two witnesses come and testify that I snatched it, then obviously I will have to return it, and I will not be able to claim that I snatched my own property, not even with an oath. Why? Because the other party is the prior possessor and is in possession, and the snatcher cannot become the possessor through snatching.
If he snatches it with no witnesses at all, he will prevail with the claim that he snatched his own property, through a migo that he could have said he did not snatch it. This is not a migo to extract money, because at present he is in possession. In other words: the migo makes him into the possessor. Or, phrased differently: this is “the mouth that prohibited is the mouth that permitted” in order to extract, and there are views that say that helps.
The question is what the law is when one witness comes. If he claims that he snatched his own property through a migo that he did not snatch at all, the witness undermines the migo. This can be understood in two ways: 1. The migo-claim (“I didn’t snatch”) would have obligated him to take an oath. Therefore it is an inferior migo. 2. With the migo-claim he would prevail only with an oath, and therefore now too he will prevail by force of the migo, but only with an oath. The difference depends on whether one sees migo as the force of a claim (option 2) or as “why would I lie?” (option 1).
The dilemma in the Talmud is what to do in such a case: swearing that he snatched his own property does not help, because even if he snatched his own property he must return it, just as in the case of two witnesses who testify that he snatched it and he claims that he snatched his own property. On the other hand, extracting money from him is difficult, because there are not two witnesses against him, and after all at present he is in possession.
In the conclusion, he pays: either because he is obligated to take an oath that he cannot take, or because he has no migo.
A. I did not understand the claim of the later authorities that you brought.
B. I did not understand why in every case you can bring such a witness. I do not see how.
C. I did not understand. Whose words? Who is the “first” witness?
I have a series of lectures on the ingot case; if I remember correctly, I present another innovative approach there as well. I just saw now that it is not on the site. I asked Oren to upload it: Doctoral Students, Bava Batra, 5777. When it goes up, look there from lecture 45 onward.