Migu vs. Eidim

          One of the most fascinating concepts within halakha is the  device known as 'Migu'.  Migu establishes the reliability of a defendant based upon his choice of claims.  If an individual has the option of offering a 'sure-win' claim and instead chooses an alternate defense, which on its own is not believed, we make the following assessment:  If this person were truly a liar he would have selected the sure-win, superior claim - since he knows such a defense would be immediately and automatically accepted.  Basically, if he were a liar he would have fabricated a better lie.  The fact that he chose a relatively weaker claim indicates that he is honest, and we accept the story he provides.  For example if Reuven approaches Shimon and informs him "this land was your father's but I bought it from him" he is believed, since had he wanted to achieve possession dishonestly, he would have said "this land has always been mine" - Shimon not really knowing any better and not being able to refute this claim.  This halakhic principle has widespread application and according to the gemara in Ketubot (22a) is so basic that it might actually be derived from a pasuk in the Torah.  Several early Acharonim (Tumim, Shach, Netivot) dedicated independent 'works' to help elaborate the scope and application of this fascinating concept.  This article will address an area in which this device fails - when it opposes eidim - two witnesses who contradict the claim  which is supported by migu.  This is known as the case of migu bimkom eidim.

          The primary location of this case is the gemara in Babba Batra (31a) in which each party contesting ownership over a tract of land claims that it belonged to their father.  Only Reuven succeeds in delivering witnesses to this effect.  Shimon's claim is now contradicted by Reuven's eidim.  However, to support his claim Shimon has a migu - since he has been living on the land for at least three years, had he wanted to achieve possession of the land he could have claimed that he actually bought the land from Reuven.  This claim would have been accepted as it is confirmed by his using the land for three years uncontested (in halakha this is known as chezkat gimmel shanim:  if I use a land for a duration of three years and no one contests, it is assumed that I purchased it).  Here we encounter the classic case of "migu keneged eidim" - migu for Shimon opposed by Reuven's eidim.  Ravah asserts that the migu is successful while Abaye and Rawvah reject the migu in favor of eidim.  As has been our custom in the past, we will begin the inquiry by asking why (or what about) migu fails in this case even though, conventionally, it is one of the most common and effective halakhic devices.

          Throughout halakha, we oftentimes witness conflicts between two forces with one triumphing over the other.  Such examples include rov (majority percentage wise) vs. chazaka, eid echad (a lone witness) vs. chazaka, rov vs. chezkat mammon, migu vs. chezkat mammon, bari veshema vs. chezkat mammon.  There are two distinct ways to analyze this situation and the  nature of the 'triumph'.  Intuitively, we might view this as a classic battle of forces - each struggling to overcome the other; ultimately the stronger force wins.  For example, we might say that the reason rov beats chazaka is simply because it's stronger - it provides a more likely and probable indication of the truth than chazaka can.  Bari ve-shema (where one person claims with certainty and the other is unsure, indicating that the bari - the one who states his case with conviction - is correct) is a good indicator, but weak in comparison to chezkat mammon which indicates that the item belongs to the person who is presently possessing it.  Conventionally,  we view these cases as a COMPETITION with the stronger indicator overcoming the weaker one.

          There is, however, another possibility.  Sometimes one factor creates an environment or setting in which the other factor is completely irrelevant.  For example, if a chazaka already exists - we already have a given status quo about the piece of meat - an eid echad might not be relevant to testify in this case.  The Torah only granted believability to a lone witness, in a vacuum, where we have no prior knowledge.  It is not as if the chazaka is a stronger indicator, but rather, its existence obviates or renders irrelevant the lone eid.  We don't have a conflict and a victorious force but rather an environment set by one of the factors which makes the other inapplicable and subverts or undermines it.  Which category does migu vs. eidim  belong to.  Does migu lose in its battle with eidim because it isn't strong enough or do we say that the presence of eidim establishes an atmosphere which doesn't allow migu to operate.  In truth, as we will see, each  approach might be correct.

          We will begin with the first approach which appears to be more standard - migu just isn't as strong as eidim.  The Torah establishes eidim as the paramount source of truth and migu, though effective, cannot be as fool proof or weighty as two eidim.  For example on a scale of 1-10 we might rate migu as a '7' while eidim would represent '10'; the rest is simple math.  Migu and eidim go head-to-head with eidim emerging victorious.

          If this were true, we would expect two particular fallouts (nafka minot).  What would happen if we marshaled other forces to the support of the migu.  What would happen if, for example, we had a migu and rov against eidim.  If the migu was defeated because it just wasn't strong enough, by buttressing it with another 'koach' it might surpass eidim.  This is known as the question of 'tzeiruf' combining multiple forces, each of which, alone cannot overcome the opposing force, but which, if combined, might be strong enough to win.  This nafka mina arises in all cases in which the 'losing' force loses because it isn't sufficiently strong. (see Afterword for additional examples of this concept).

          A second 'classic' nafka mina to this approach concerns the manner in which we 'rate' the respective forces.  Asserting that migu cannot overcome eidim because it isn't sufficiently strong, assumes a calculation of the relative strengths of each.  Do all migus represent the same strength; do All eidim have the same 'koach'?  Quite possibly, within the category of migu there exist different types, some of which are stronger than others.  Conversely, could there be certain types of eidut which are stronger than others.  In this case the words of the Ramban in Kiddushin (64a) are quite appropriate "Not all migus are equal and not all chazakot are equal".  Though this statement is not democratic it is critical to our understanding of any conflict between halakhic forces.  In our particular example of migu vs. eidim Tosafot in two instances (Babba Kama 72b and Ketubot 18b) seems to give the nod to a 'super-migu' even when it is contradicted by eidim.  Such a super-migu is a case where the claimant could have achieved his goal, not by offering an alternative CLAIM but by remaining SILENT - migu de'i bayi shatik.  Assuming migu's general failure is due to its relative weakness, a STRONG migu might overpower eidim.

 

SUMMARY:

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          We have analyzed migu's submission to eidim in the standard manner - it is weaker than eidim.  We have also addressed two nafka minot each involving changing the balance.  We can change the balance by either strengthening the migu with outside reinforcements, or by introducing a stronger brand of migu.

          The alternative to this approach views migu's surrender not as a result of its being overpowered but because it becomes inapplicable to the present context.  Possibly, the mere PRESENCE of eidim renders migu irrelevant.  The Torah allows migu to decide the case when we cannot do any better.  As a type of 'be-di'eved' we have no objective testimony so the courts have to make an attempt to decide between the claimants - which one appears to be telling the truth.  Migu helps Beit Din finger the "presumed" honest one.  In a situation where eidim have arrived such appraisals and evaluations yield, not merely because the evidence is STRONGER but because the presence of eidim has conferred upon the case a higher standard and higher criterion of what 'concrete evidence' we might accept.  Even if we are not to accept the testimony of the eidim (for example they are contradicted by opposing eidim forming a stalemate what is known as terei u-terei) the Migu cannot be employed in a setting in which Beit Din has heard objective testimony.

          To help clarify this second approach a very interesting set of cases will be examined.  The gemara in Babba Batra (41b) requires knowledge that a certain person lived in a particular house for at least one day (dar ba chad yoma).  The gemara demands that eidim be furnished to provide this information.  The Rishonim ask why we cannot trust one of the parties to testify that he saw the other one living in the house.  After all, he has a migu to support this claim.  Many answers are provided to this question but the Ritva raises an intriguing one.  Generally, people notice when another lives in a house.  Since we can assume there exist potential eidim we will not accept the evidence based upon a migu.  A similar case presents itself in the gemara Babba Metzia (81b).  The mafkid and the shomer are at odds whether the route taken by the shomer during transport of the animal was flooded and led to the animal's death.  The shomer has a particular migu which campaigns in favor of his being believed that the route was dry.  Abaye dismisses the migu since it is a migu bimekom eidim.  Here too the Rishonim question where Abaye gets his eidim from.  We have no record in the gemara of eidim actually testifying as to the state of the roadway.  The Shita Mekubetzet cites a position of the Remach that although eidim have yet to come forward we can assume they exist since we are dealing with a major highway.  We can expect to locate eidim and therefore reject the migu - as Abaye's lashon bears out, this is considered a migu bimekom eidim.  Here are two cases in which we reject a migu because we ANTICIPATE eidim, even though they  have yet to arrive.  We cannot, in these cases, disqualify migu because it is opposed but a stronger indicator of the truth - the testimony since to date, there has been no testimony!!!  Maybe the testimony will support the claim!!!  Instead, it appears we have located cases where the mere presence of eidim makes migu a non-factor.  In these cases the presence of eidim is established, not by their actual arrival and subsequent testimony, but by the very specter of their arrival.  In cases where we can assume that eidim will be uncovered, we can reject migu because the case is classified as one of eidut.  The standard has already been set by the mere prospect.

 

SUMMARY:

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          We have described an alternate approach which doesn't view eidut as overpowering migu but creating a setting within which migu is not applicable.  This setting can be established either by the actual appearance of eidim or the knowledge of their existence.  To apply terminology to this distinction:  we might disqualify migu because its NEGED eidim - it is opposed by eidim which are stronger than it.  Alternatively, we might disqualify migu because its BIMEKOM eidim, operating within the presence of eidim - a factor which renders it irrelevant.

          Essentially, our question recognizes two distinct aspects of eidim - their testimony, the power and strength of EIDUT, and their PRESENCE even when their eidut has not yet materialized.  Our analysis questions which of these dimensions leads to the victory over migu:  the overpowering strength of EIDUT or the preempting cognizance of EIDIM.  The best way to test this question would be to locate cases of eidut without eidim and other cases of EIDIM without eidut and see how migu would operate under these conditions.  Fortunately, we have examples of each (wouldn't you know it!!!  Something is fishy).

          In Halakha eidut without EIDIM is called anan sahadi - truths that are so apparent that we don't require specific witnesses to testify about them.  For example, the gemara in Babba Batra (5b) discusses the infrequency of payment before the due date.  We assume through anan sahadi that people do not pay back before the due period.  This truth is assumed with the same certainty as if eidim have testified that payment wasn't made.  What would happen if a migu were to conflict with an anan sahadi?  On the one hand it conflicts with eidut - or some truth which has the strength and status of eidut; it is considered a case of migu neged eidim.  However, since no one actually testifies to the lack of payment we cannot consider this a case of migu bimekom eidim.  This exact case is discussed by the gemara in Babba Batra (5b) where the gemara arrives at "teiku" regarding whether a migu is stronger than the  above mentioned anan sahadi.  The issue also arises in the context of the gemara Babba Metzia (81b) which was cited earlier.  According to Rashi, even though no actual eidim testified as to the route being flooded with water, there exists an underlying assumption - an anan sahadi that the route of nahar Pekod is always flooded.  According to the gemara then , this anan sahadi is sufficient to overpower the migu.

          We have examined a case of migu in a context of eidut without eidim.  What about eidim without eidut.  To an extent we already witnessed such a case - where the event in question was undoubtedly witnessed by several people and we can assume there exist potential witnesses.  An additional example involves what the gemara refers to as kol.  Kol - literally a voice or rumor - refers to a situation where everyone is murmuring about a certain fact although the fact has yet to be confirmed through the appearance of eidim.  Certain cases of kol (known as itchazek be'bei dina - a kol which has been accepted within a court) are given credibility because they foretell the arrival of eidim.  If the word is out and everyone is discussing this rumor, most certainly eidim exist who are planning to testify to this matter.  Kol, then, might reflect the 'presence' or 'knowledge' of eidim even though we do not as of yet have their eidut.  What would happen to migu in such a context?  See the Ra'avad in his comments to the Rambam Hilkhot To'an ve-Nit'an 14:8-9.  This case - migu bimekom kol - would constitute the exact inverse to migu bimekom anan sahadi.

 

AFTERWORD:

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1.  See the gemara in Ketubot (12b) regarding the inability of bari ve-shema to operate when opposed by a chezkat mammon.  The gemara does imply that when combined with other forces the bari ve-shema triumphs.  The Mordechai in the beginning of the first perek of Babba Metzia says so explicitly.

2.  See the Tosafot in Babba Batra (35b) regarding another migu which fails in the face of anan sahadi.

3.  See the Shita Mekubetzet Ketubot (26a).  The section cited in the name of the Shita Yeshana who establishes 'kol' as the promise of eidim and hence it itself is considered 'nidnud eidut' a trace or hint of eidim.

 

METHODOLOGICAL POINTS:

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          When a certain halakhic 'force' is being addressed (in our example eidut) be sensitive to the various dimensions of eidut.  Which of these aspects creates trouble and causes the failure of the opposing force.  In our case this battle between migu and eidut helped us better focus upon the two dimensions of eidim - their testimony and their mere presence.

 

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