Migu With Discrepancies Between the Actual Claim and the Migu Claim

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Dedicated by Aaron and Tzipora Ross and family

in memory of our grandparents

Shmuel Nachamu ben Shlomo Moshe HaKohen, Chaya bat Yitzchak Dovid, and Shimon ben Moshe,

whose yahrzeits are this week.

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            One of the most ubiquitous devices in adjudicating halakhic litigations is the tool known as migu.  In the absence of concrete evidence, Beit Din may award the case to the party with multiple legal options.  For example if a person is charged with stealing a coat and he replies that he purchased it, he is believed without providing evidence: had he been a liar he would have lodged a more powerful lie - that he never met his prosecutor to begin with, and the entire theft story is fabricated.  Based on his choosing a lesser claim we trust the claim he actually lodged.  The source for migu is provided by the Gemara in Ketuvot (22a) which empowers a father to testify about his minor daughter's husband.  Since he possesses the halakhic ability to marry her to a person, he is believed to claim that he did marry her off in the past. 

 

            In a seminal essay on the topic of migu, Rav Elchanan Wasserman (in his second volume of Kovetz Shiurim) questioned whether migu is truly a psychoanalytic tool to establish the veracity of the litigant.  Perhaps it is a LEGAL method for resolving disputes in the absence of eidim.  We do not necessarily trust the possessor of the migu; we merely award his the case since he possesses greater "legal leverage" given the reality that he can triumph in this litigation in multiple manners.  The best expression of this position is the fact that according to many Rishonim migu can only be employed to protect money and not to extract (migu le-hotzi lo amrinan).  Had migu been a tool to establish ne'emanut (reliability) it could conceivably function both to protect the status quo, as well as to extract monies from a defendant.  Perhaps this limitation of migu lehotzi indicates migu's role as a legal device to recognize leverage in the absence of testimony.  Leveraged options are only meaningful to defend money but not to prosecute others. 

 

            This shiur will discuss two inversely related situations of migu – a tandem of migu's which may demonstrate its true essence.  The first migu is known as a migu mi-mammon le-mammon.  The first Mishna of Bava Metzia speaks of the contested garment claimed by two litigants.  Typically the garment is evenly divided.  However if Reuven claims the entire garment while Shimon claims only half, Shimon is awarded HALF HIS CLAIM (25%) while Reuven who claimed the entire item walks off with seventy-five percent.  Tosafot question why, in the latter case, Shimon is not awarded his claimed fifty percent because of migu: "Believe him when he claims fifty percent [and award the entire claim of 50%] because if Shimon wanted to lie he could have asserted a better lie and claimed the entire garment (knowing that he would at least be assured of fifty percent)."  Tosafot disqualify this migu because it seeks to dislodge the garment from an opponent who possesses it and qualifies as migu le-hotzi.  Of course the classification as migu le-hotzi is questionable since both parties are clutching the garment, and we may not envision or acknowledge any sole possessor on any part of the garment. 

 

            Many Rishinom disagree with this logic and disqualify the migu for a different reason.  The Nimukei Yosef (and presumably the Ramban as well, though his language is far more ambiguous) disable the migu since the alternate claim, though more successful, is more ambitious.  This type of migu – where a litigant may have triumphed by lodging a more sweeping claim than originally posed – is known as migu mi-mammon le-mammon and is unacceptable.  Shimon cannot be believed in his limited claim to fifty percent simply because he could have extended his claim to the entire tallit.  By disqualifying the migu on different grounds, Tosafot may be disagreeing with the Nimukei Yosef, and as such, validating a migu mi-mammon le-mammon. 

 

            Conceivably this migu sits at the boundary between the two models of Rav Elchanan.  If migu serves as a legal force to award title, this form of migu would be ludicrous.  The current case concerns only half the garment (since Shimon only laid claim to 50%).  The possibility of assaulting Reuven about other monies or extended claims about the garment to achieve the desired goal would not provide leverage on the litigation in question.  Would I have leverage about a particular disputed house simply because I could have sued about other properties?? The migu leverage would apply to areas under discussion and could not be fueled by extra-litigable possibilities. 

 

            However, if migu is not legal but psychological, we may award it in this case as well.  His limited claims indicate his honesty, and we should recognize that integrity and award the full claim [of 50%].  By denying this migu, the Nimukei Yosef may have been developing migu as a legal force, whereas, by tacitly accepting this migu, Tosfaot may have been casting migu as a tool to prove honesty and it may theoretically apply in this instance as well. 

 

            Interestingly enough, the Ramban inquires about a type of migu which may be the logical inverse of a migu whose alternate claim extends the scope of the litigation.  What would happen if the alternate claim of the migu actually contracted the scope but lent greater legal force?  What would happen if the original litigation concerned a broader range of issues, but argued in a weaker manner, whereas the alternate claim argues more forcefully about a more limited scope?  The Gemara in Bava Batra (33b) provides just such an example. In litigations of land, ownership is awarded to a person who benefited from the land for three years in successive fashion – known as chezkat shalosh shanim.  The Gemara presents a situation in which a land dweller is accused of theft and defends his activity by claiming that he purchased the land and benefited for three uninterrupted years as proof of his purchase.  Unable to muster witnesses who saw this benefit, he loses the land and must repay the fruits he ate or other benefits he stripped from the land, which has now been proven to belong to another.  Several Rishonim question his obligation to repay fruits; he should enjoy a migu and be believed as far-as the fruits are concerned because he could have lodged a better claim – that he purchased the fruit directly from the original owner and paid in full for that purchase (a claim for which he would have been believed).  The Ramban rejects this migu since the original litigation concerned land and fruits (had he triumphed in his original design he would have enjoyed both).  He cannot buttress a claim to land and fruit with an alternate migu-claim which only awards and exempts payment for fruit.  This RETRACTIVE migu reduces the scope of the original claim and is a flawed migu.  The Ramban elucidates his logic for rejecting this migu: Every migu is based on an evaluation of integrity based on the claimant's non-selection of a bigger lie.  In this instance he would not have chosen the alternate lie because it is legally inferior.  Even though it argues with greater compulsion, it awards less than the original claim.  Aware of an "alternate reason" for his not choosing the alternate claim we cannot establish honesty based on the non-selection of THAT claim. 

 

            Several Rishonim offer alternative readings which allow a retractive migu.  Presumably they would base their positions upon viewing migu as a legal force.  Regarding the actual fruit the person enjoyed legal options.  Why should the leverage be hindered by the reality that the OVERALL claim would be narrowed by the lodging of the alternate claim?? Again, it appears as if a fundamental machloket between Rishonim revolves around Rav Elchanan's question of whether migu is an honesty test or merely a legal force awarding leverage to the possessor of superior legal options.  In fact, these two migu are mirror inverses.  In the former the alternate claim expands the scope (he could have claimed all 100% of the garment instead of 50%); even though this may indicate honesty, it certainly cannot be deemed a migu of legal leverage (as argued earlier in this shiur).  By contrast, a retractive migu – or as the Ramban refers to it a migu ligro'a – cannot prove honesty (since there is good reason that he alternate claim was not lodged) but may still provide the necessary type of legal force to lead to victory.

 

            At a technical level, this would cause some inconsistency in the position of the Ramban.  As stated earlier he MAY (depending upon the manner in which his complex statement in the beginning of Bava Metzia is understood) agree with the Nimukei Yosef that an expansive migu fails (presumably because migu must be a legal force limited to the terms of the original claim).  However he also disqualifies a retractive migu - as he indicates in his comments to Bava Batra – because the honesty test fails even though migu as a legal force may still be intact.  How then did the Ramban understand migu? If it is a barometer of honesty he should allow an expansive migu! If it is a legal force, he should allow a retractive migu! Of course there are many ways to resolve this apparent logical inconsistency – the simplest of which is to question whether the Ramban ever rejected an expansive migu in the manner that the Nimukei Yosef did. 

 

            The Ramban in Bava Batra cites a situation in Kiddushin (64a) which he believes proves the inadequacy of a retractive migu.  Though a father may testify to the marital status of his minor daughter (testifying in this instance to her divorce), he may not testify to her capture and forced sexual corruption.  The Ramban questions why he is not believed to attest to her capture (thereby invalidating her to marry a kohen) since the father could have established the disqualification to marry a kohen by testifying to her divorce! The Ramban assumes that this retractive migu is inoperative.  The father testifies to her capture – which would both render her impermissible to a kohen and ALSO disqualify her from eating teruma if she were the daughter of a kohen.  As the alternate claim of divorce would only affect her marital status but would not affect her teruma suitability it is a migu which diminishes the original scope of the claim and is invalid. 

 

            Perhaps we may respond to the Ramban by distinguishing between migu employed in the realm of monetary matters and migu employed in determining halakhic status (issur).  In the former instance we may speak of a migu which gauges the RELATIVE strength of the two litigants and awards victory to the stronger claimant who possesses multiple options.  Even though a retractive migu may not prove honesty it may provide leverage to bolster one litigant's relative position and award him legal supremacy.  However in the Gemara in Kiddushin, in which the marital status of a woman is being deliberated, there are no claimants and defendants.  Beit Din is charged with supervising halakhic marriages and must establish halakhic identity as a precondition.  In this context migu as relative leverage is completely IRRELEVANT, as we are not comparing relative strengths of two litigants.  The only migu which is applicable is a barometer of honesty and THIS ELEMENT of migu is suspended in a retractive migu. 

 

            Namely: migu, in general, in monetary affairs may possess EACH element - both a beirur as well as a koach.  Therefore a retractive migu is allowable since the koach is still in force and is sufficient in monetary litigations.  However, in determining halakhic status we must employ a migu which operates as a beirur; a migu ligro'a (a retractive migu) cannot serve as this beirur and fails.  Just because a retractive migu fails in Kiddushin does not mean that it would necessarily fail in Bava Batra.