Introduction
This post will be most beneficial for those with some Talmudic background, or those interested in Talmudic law concepts. I will however attempt to make things clear even for those with no such background.
The word 'Migu' (literally 'since') can represent more than one Talmudic concept, but here we are referring to the idea that a plea or claim may be believed in court only because an alternative plea or claim, not made by the litigant, would have been believed.
An illustrative example is a case where a lender wants to collect a debt, and produces a contract signed by witnesses to show that the loan took place. The borrower protests that he already repaid the loan, but cannot offer any evidence to that effect. Were the lender to deny receiving any payment at all, he would be believed, with the intact contract being sufficient evidence. One would not normally repay a loan without having the contract torn up[1], or at least getting a receipt.
What happens if the lender admits that he did in fact receive payment, but that this payment was for a different loan (or a gift)? The gemara says that this claim is also believed – since (migu) he is believed to say that no payment was received, he is also believed to say that payment was received but for something else.[2]
There are many examples of this concept in the gemara, each with its own nuances, and I cannot come close to covering the entire topic in one post. However, I will attempt to give an overview of some of the fundamentals. I hope this will be helpful for both beginners and the more experienced, and would love to hear if anyone thinks I have erred or if further clarification is required.
Indication of Truth
The gemara gives only a three-word explanation of the rationale behind this concept:
מה לו לשקר? – What purpose is there for him to lie?[3]
This simple sounding formula would seem to imply that the concept is likewise relatively simple. Rashbam writes that Migu is an indication that the claim being made is true,[4] and the Rashba elaborates, "Wherever there is a Migu, we believe that the truth is in accordance with the claim, as were he to come to lie, he should have used an alternative false claim which he would have been believed with."[5]
In other words, whenever a litigant comes to Beis Din and makes a claim, he could either be lying or telling the truth and we need to decide which of the two possibilities is more likely. When the claim seems improbable or unfounded, if an alternative claim could have been made which would have been accepted unquestioningly, it is unlikely that the person instead chose the improbable lie over a sounder one.[6] We therefore assume that the claim is true.
The main logical difficulty with this argument is that it appears to ignore the weakness of the claim itself. Although it may be improbable that a litigant would prefer a weaker lie to a stronger one, it may also be inherently improbable that the weaker claim is true.[7] Thus there is certainly no guarantee that the claim made is actually true, and it may not even be more likely.[8]
Status Quo Ownership (Muchzakut)
As far as I am aware, the earliest explicit written challenge to the Rashba's understanding of Migu was made by R' Baruch Teomim-Frankel (1760-1827, Eastern Europe). For reasoning similar to the above, he claims that Migu is no proof that the truth has been told; rather, "Such are the rules (midot) of the Torah" that one who had a winning defence is exempt from the claim against him even when he uses an alternative defence.[9]
I am naturally always sceptical of any 'explanation' that seems to claim exemption from providing a logical basis for a halacha.[10] In this case it is particularly difficult, as no Scriptural basis is provided for the concept of Migu and it appears to be based on logic alone.
R' Shimon Shkop (1860-1939, Lithuania) provides a modified version of a 'second aspect' of Migu, adding a logical explanation. As we wrote in Burden of Proof & Status Quo, it is not always easy to pinpoint where the burden of proof lies. R' Shimon argues that when a litigant has a possible winning defence, even if he is no more likely to be telling the truth, his position is stronger.[11] The corollary is that the burden of proof will more likely be on the opposition.
This explanation is an improvement on the "Such are the rules of the Torah" statement, but it appears to be an over-complication. I believe it also has a conceptual flaw, as Migu is usually called into play in cases where status-quo ownership is not in question.[12]
Salvation of Legitimacy
Based on the above, I believe that the correct interpretation of Migu is a slightly modified version of the 'Indication of Truth' idea formulated by the Rashba.[13] Migu is relevant in cases where one litigant inherently has the upper hand but potentially weakens his own case by presenting a problematic claim that we would not normally accept. However, this weakness is balanced by the argument presented above – the possibility that he is lying is also problematic, as a liar would normally have used the more believable lie. We therefore restore the default position, and this litigant retains the upper hand.
In the example we started with, the lender has a document that would be a sufficient proof of the veracity of his claim. He proceeds to tell us a rather improbable story about how in fact the borrower did pay him, but for another debt. Were there to be witnesses to the payment, this story would not be believed, despite the fact that the document was not torn up.[14] If there are no witnesses and the lender could have denied any payment was made, since (migu) it is just as improbable that the story was made up, we default to the documentary evidence indicating that payment is still due.
This understanding can help explain the difference between this case and another, appearing in the gemara elsewhere. In the second case, a claimant also produces a document as evidence of a loan, but the defendant responds that this document is a forgery. The claimant whispers to Rabbah that although it is true that the document is forged, this is only because he mislaid the authentic one.
Rabbah reasons that here too, the claimant is believed since he could simply have denied the unevidenced forgery claim outright. R' Yosef disagrees, arguing that a document now known to be forged is worthless. The gemara concludes that as the money is now in the possession of the defendant, we allow it to remain there, in accordance with R' Yosef's view.[15]
Why is Migu not strong enough to allow us to believe the whisperer in this case? We can now explain that although Migu gives legitimacy to the otherwise far-fetched claim that an authentic document was lost, legitimacy is not sufficient. In order to force a defendant to pay up, proof is required. As we do not see any valid document, there is no proof that any money is owed.[16]
Incentive for Honesty
While to my knowledge the Rambam does not ever explain the logic behind Migu, he does point to a welcome by-product of the concept. Should a defendant deny the charges against him but refuse to relate his version of events to Beis Din, the Rambam writes that this is not acceptable. The dayanim should explain to him that it is not his right to decide whether he must pay; he must simply state what happened and they will determine the halacha. Even if the defendant is exceptionally learned (and will know the halacha), the dayanim should reassure him that there is nothing to lose by telling the story, as any plea can be accepted based on the concept of Migu.[17]
Here we see that we are interested in persuading litigants to tell the truth, the whole truth and nothing but the truth, not merely as a tool to ensure that Beis Din arrive at the correct decision. The value of being truthful and encouraging others to do so stands alone.[18]
This stands in stark contrast to some other legal systems, in which alternative pleading allows litigants to present multiple contradictory claims and have each of them considered by the judge and/or jury. In other words, in our first case above the lender could claim that he was never paid, that he was paid with counterfeit money and that the payment was for another loan!
I have written before that there is no inherent problem with batei din taking on aspects of modern day law when appropriate.[19] I could have said that the same applies regarding alternative pleading – please believe me that Migu is far superior.
[1] See for example Bava Basra 70a.
[2] Kesuvos 85a; Shevuos 42a
[3] Bava Basra 31a and other places. This wording does not appear in
the gemara in relation to every case of Migu. However, I am not aware of any
characteristic that consistently creates a logical distinction between the cases
where this wording appears and the cases where it doesn't, and I have therefore
assumed that the logic implied by this wording applies to all cases of Migu.
Many commentaries indeed explicitly lump these cases together (although see this
article for a case for such a distinction, as part of a long discussion of
the concept of Migu. I believe that the claim made tentatively in footnote 27
there is contradicted by Kiddushin 64b).
[4] Bava Basra 36a (ד"ה לדידי). This also appears in
Rashi to Kesuvos 12b (ד"ה אלא דאיכא מגו), but the Migu in the
case there is atypical and requires further discussion.
[5] Responsa of the Rashba 3:81
[6] Even in cases where the relative believability of the two claims is
not obvious, it seems reasonable to assume that a dishonest person who is not
well-versed in halacha could consult with someone more knowledgeable before
appearing in front of Beis Din, in order to ascertain which of the two claims
will be accepted. See however Ramban, Kiddushin 64b.
[7] This is not always the case, as sometimes neither claim is
inherently problematic and one claim is only 'superior' due to formal
considerations. However, the rationale for Migu should hold true for all cases.
[8] This is analogous to the case of a 99% accurate medical test for a
condition that only 1% of the population have. On average, only half of those
testing positive for the condition will actually have it. See https://en.wikipedia.org/wiki/Bayes%27_theorem.
[9] Responsa Ateres Chachamim, Choshen Mishpat siman 20. This approach
was perhaps made more famous by R' Elchanan Wasserman in Kovetz Shiurim (Volume
2, Siman 3), who calls this understanding כח
נאמנות
('power of believability').
[10] See Torah
and Morals.
[11] Chidushei R' Shimon Shkop, Bava Metsia siman 5.
[12] This can be shown most clearly from a case in Bava Basra 5b-6a, where a borrower claims that he paid back a loan earlier than
the due date. Due to the societal norms of the time, this would not in general
be a believable claim. However, the gemara questions what the halacha is if the
due date has now passed and the borrower could just as easily have claimed that
he repaid the loan after the due date and thus Migu becomes relevant. Here, the
borrower is certainly the status-quo owner of the money that the lender claims
to be owed; the only question is whether the borrower's plea is believable.
Although there is also a status quo argument regarding the debt being intact,
this is not in itself sufficient to transfer the burden of proof to the
borrower.
[13] This understanding combines aspects of this shiur
from R' Nachum Rabinovitch ז"ל and this
article from יבל"ח R' Michael Avraham. With the amount that is
written on this topic I am sure that my words are not original, but as yet I
have not found the exact idea elsewhere.
[14] Shevuos 42a. The witnesses must be sure that the money was received
in payment of a debt rather than as a gift (see Chidushei Ri Migash and other
rishonim in his name there).
[15] Bava Basra 32b
[16] This is in accordance with Tosfos (ד"ה
אמאי) who
explain that Migu is not sufficient to force a person to pay. It may also be the
meaning of the cryptic words of Rashbam (ד"ה אמאי), which other commentators have great
difficulty explaining. While there are other aspects of this gemara (notably a similar
case appearing beforehand, where the argument is regarding a land purchase rather
than a loan) which require further explanation, I believe that this
understanding of Migu is key.
[17] Hilchos To'en v'Nitan 6:1
[18] Some have even suggested that this is the entire purpose of the
concept of Migu, but in my view there is certainly no proof to this from the
words of the Rambam and this is a stretch based on the gemara.
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