Q&A: Partial Credibility, Migo
Partial Credibility, Migo
Question
Hello and blessings,
One who says, “This is my son,” is believed regarding inheritance, on the basis of migo, since if he wanted he could give him that money. Rashbam asks that he has no migo now regarding what he will purchase in the future and does not currently have, and answers that indeed he is certainly believed only regarding the money he has right now.
Likewise, “I divorced my wife a month ago” — according to one approach, where we split the statement, he is believed regarding the future, since it is in his power to divorce her, but not regarding the past, which is no longer in his power.
My question is: how does the religious court issue a ruling in both of these cases based on something that nobody actually claimed?
What reality is the court assuming in order to give him the money only from that point onward? After all, the father did not claim that he gave him the money, only that he is his son and it will pass to him by inheritance — a fact that apparently we cannot accept because of the difficulty regarding future money.
And similarly with the woman: he did not claim that he is divorcing her now, which is what the court is “apparently” assuming (and apparently not really), and they also cannot accept his full claim because with respect to the retroactive part it is no longer in his power.
So how exactly does the court’s ruling work? It sounds like it is not ruling on bare facts, but rather on some kind of rights — but I can’t quite formulate it.
Thank you
Answer
Indeed, this is not a factual ruling. There is a division here because of the laws of evidence. The example Rabbi Akiva Eiger brings is that of a single witness who says that a woman’s husband died: on that basis we permit her to remarry, but we do not transfer the inheritance to the heirs. The difference lies in the level of evidence required for each of those consequences. For the first, one witness is enough (special testimony regarding a woman’s marital status), while for the second we require two witnesses. Therefore, in practice there is a split. By the way, this is also true in other legal systems, where there may be a difference in the level of evidence required in criminal versus civil law.
It could also be formulated differently (a formulation I like less): the migo does not prove the fact, but rather gives me legal force to claim entitlement (migo as strength of claim). According to this, the ruling does not deal with facts but with the status of the money itself.
This reminds me of the rule: “Whoever says, ‘I did not borrow,’ is as though he said, ‘I did not repay.’” Clearly, he did not intend to admit that he did not repay. But in practice we rule, on the basis of his statement, that he did not repay.
Discussion on Answer
If the testimony example is clear, then what’s the problem? Use it. I have proof regarding the money already in existence, but not regarding what comes from now on. Therefore, even though the questions are connected, I can rule about them differently. I did not determine the fact, but the right to the money. Just like “the burden of proof rests on the one who seeks to extract money from another”: that is not necessarily proof that the money is his, but I leave it with the current holder because of a legal consideration — namely, that the burden of proof was not met.
Can this point be expanded a bit?
For some reason the example of one witness / two witnesses is clearer to me, more intuitive.
What does it mean that the religious court rules regarding the status of the money? He is claiming a right to the money — so does it not really matter on what basis? Or likewise, the woman’s release from marriage — and the question is to what extent that claim can be accepted regardless of the reason behind it?
How do you detach a consequence from the circumstances behind it?
Thank you