Q&A: The Force of a Claim
The Force of a Claim
Question
Hello and blessings. Tosafot in Bava Batra 5b, in the passage about migo against the presumption that a person does not pay before the due date, write as follows:
And yet this is difficult, from what we learned in Yevamot, in the chapter Beit Shammai (111b): if a yevamah said, within thirty days, “I was not had relations with,” we compel him; after thirty days, we request it of him. And it is explained there that up to thirty days a person can restrain himself, but beyond that he cannot restrain himself. Therefore after thirty days we do not compel, because she is not believed, even though she has a migo, since if she had wanted she could have said, “He is unable to have relations with me,” in which case she would be believed, as is proven at the end of Nedarim (91a):
The Shach, in the Rules of Migo, letter 10, distinguishes between the passage in Yevamot—where in practice the woman’s credibility does not actually stem from the migo but from the presumption that a woman does not brazenly lie—and the passage in Bava Batra, where the credibility comes from the migo itself.
Seemingly, this distinction is relevant only if one understands that migo is the force of a claim in the way the Kovetz Shiurim takes it, namely that the force of the previous claim transfers to the new claim. Then, if the previous claim needed the support of a presumption in order to prevail, the migo claim as well would need a presumption, and since no such presumption exists, the migo would not help.
However, if migo is based on credibility or force of claim as in your approach (something like a kind of presumptive possession), then in the end if so-and-so had made claim A he would have won, and therefore it is clear that even if he makes claim B he should win, because this shows credibility / presumptive possession.
Answer
Even according to the Kovetz Shiurim, I do not see how you are understanding this. The previous claim needed a presumption, but this claim has a migo (“why would I lie?”). Beyond that, even without the migo, the other claim has the power to prevail in practice, so I do not see why there is room for this distinction. Of course, if you define a rule that has no logic at all, you can hang whatever you want on it and make whatever distinction you want.
As I understand it, there it is simply a migo of brazenness—from brazenly asserting something to not brazenly asserting something—and therefore it does not help. Here, by contrast, it is a regular migo.
Discussion on Answer
I wrote that the principle of the Kovetz Shiurim is not understandable to me (and of course it also has no source). Why give one claim the force of another? When you have a principle that makes no sense, you can always say it applies only in circumstances x and not y, even though that distinction too has no logic. That is not an explanation.
I suggested that perhaps the migo in Yevamot is ineffective because it is a migo involving brazenness. She is not brazen enough to falsely claim in his presence that he is unable to have relations with her.
I’m sorry, but I didn’t understand the answer. Could you please explain it to me?
P.S. I now saw that the Chazon Yechezkel at the beginning of Bava Metzia also writes the above distinction based on the Kovetz Shiurim.