וזה נוטל רביע - וא"ת יהא נאמן דחציו שלו מיגו דאי בעי אמר כולה שלי כדאמרי' בגמ' (לקמן בבא מציעא דף ח.) האי מיגו גופיה לפטרו משבועה אי לא משום דאיערומי קמערים ומפרש ריב"ם דמיגו להוציא לא אמרי' דבחציו השני מוחזק זה כמו זה וההיא דחזקת הבתים (ב"ב דף לב: ושם) דגחין ולחיש ליה לרבה אין שטרא זייפא הוא ומיהו שטרא מעליא הוה לי בידי ואבד והימניה רבה להוציא במיגו דאי בעי אמר שטרא מעליא הוא התם היינו טעמא משום דאפי' הוה שתיק רק שלא היה מודה שהוא מזוייף היה נאמן כי החתימה היתה נכרת לעומדים שם ורב יוסף אית ליה דאפילו מיגו לא הוה כיון שטענה ראשונה שהוא טוען בהאי שטרא הוא שקר ואין לומר מיגו אלא היכא שטענתו ראשונה היא אמת מיגו שהיה טוען אחרת ולכך אינו מיגו אפילו להחזיק כגון בעובדא קמייתא וא"ת ונימא דאין ספק מוציא מידי ודאי דהאומר כולה שלי יש לו בודאי חציה והאומר חציה שלי ספק אם יש לו בה כלום כדאמרינן בפרק החולץ (יבמות דף לח.) ספק ויבם שבאו לחלוק בנכסי סבא ספק אמר אנא בר מתנא אנא ואית לי פלגא ויבם אמר את ברא דידי ולית לך ולא מידי הוה ליה יבם ודאי וספק ספק ואין ספק מוציא מידי ודאי וי"ל דהתם יבם שהוא בנו של סבא הוי ודאי יורשו ולא יוציא הספק מספק ממונו אבל הכא אין סברא מה שהוא ודאי בחציו שיועיל לו לחציו השני: This [one, who claimed only half is mine,] receives a quarter [of the garment]. In Maseches Kesubos 13b and 14a, we discussed the concept of migo. We will once again review this concept. The word migo literally means - since or because. In the context of this Tosfos, we are saying that when a litigant claims A), even though his claim per se is not necessarily a winning claim, we must believe him since he could have claimed B) which is a winning claim. The word migo is now used virtually in all Talmudic lterature as a noun, which means the better claim that one might have claimed, if he is not telling the truth.
What emerges from this discussion is that when considering the claims of a litigant in a court proceeding, the court must look not only at what a litigant is actually claiming, but also at what other claims were available to him.
For a better understanding of migo, let us take a look at Bava Basra 45b. Rava cited a Baraisa to support Rabah’s ruling: One who gave his garment to a craftsman and there is now a disagreement about the fee. The craftsman says: You stipulated two zuz as payment. The other says: I stipulated only one zuz. The burden of proof is on the householder that he stipulated only one zuz. Otherwise, he must pay two zuz as the craftsman claims.
A bit later the Gemara speculates about the reason for this ruling: Rather, it must be speaking of when there are no witnesses to verify either claim and even so the Baraisa teaches: the craftsman is believed, since if he wanted to cheat, he would have claimed that he purchased the garment and he would have won with that claim because he has possession, therefore we believe him when he says that the garment is not mine, but the householder owes him two zuz for his labor.
We see that when the craftsman claims, A) my fee is two zuz and the householder claims it is only one zuz, there is no special reason to believe the craftsman anymore than the householder. However, since he could have claimed B) the article is mine because I purchased it and then we would believe him because he has possession, we must therefore believe claim A) because he could have claimed claim B).
This is the concept of migo. When a litigant could have used a winning claim, we must believe his present claim, because if he was a liar, he would have simply claimed the winning claim. The fact that he is using a non-winning claim is proof of his honesty.
If you ask: The litigant who claims half is mine, should be believed that half the garment is his, since if he wanted to cheat he could have said - it is all mine, and he would have received half. Tosfos proves that this is an acceptable migo:1Why does Tosfos need to prove that this is a usable migo? It is quite evident that he could have claimed - it is all mine, and he would have received half. This seems to be a perfect migo. See שיטה מקובצת who quotes a גליון who says that one who is sharing possession of the garment with his opponent might find it difficult to claim - it is all mine. He may feel that it is somewhat pretentious to claim “it is all mine” when his opponent is equally in possession of the garment as he is. Tosfos must prove that even so, this is an functional migo.
The Gemara on 8a discusses using this migo to exempt him from taking an oath: I might think: That by saying only half is mine, he should be thought of as one who is returning a lost object, since he could have just as easily claimed - it is all mine and he should be exempt from swearing. The Mishna speaks of this case to inform us - that he is attempting to deceive us. He thinks: If I claim it is all mine, I will have to swear. I will say that only half is mine, so that I will be like one who is returning a lost object and I will be exempt from swearing. The court insists that he must swear in order to discourage this deception.
As [the Gemara] (8a) says this very same migo to exempt him from swearing.2The Gemara later on 8a does not use the term migo when explaining why we might think that the litigant who claims “half is mine” should be exempt from swearing. The Gemara there uses the term - he is “returning a lost object”. Tosfos understands that the rule that one who “returns a lost object” is exempt from swearing is based on migo. He could have easily kept the found article and he would have no problem. We should believe him when he says that this is all that he found, because he could have simply kept the whole thing. Since he is returning the object, we will not require an oath. There are other interpretations of that Gemara, which we will discuss when we reach 8a. According to those interpretations, there is no proof to Tosfos’ migo. The Gemara would consent to this migo, if not for the concern that he is attempting to deceive us.
Tosfos must now explain why the concept of migo is inoperable in our Mishna. ריב"ם explains: That we do not say the concept of migo to extract money from a litigant. It is only used for defending a litigant from having to pay. Migo works only for the defendant. It does not work for the plaintiff.
But why is this thought of as ‘extracting’, the litigant who claims half is mine - is in possession of the half that he wants? For even insofar as the second half3One might understand that when A and B are each holding a garment, A is in possession of the portion that is closest to him and B is in possession of the portion closest to him. If that were so, when A claims the entire garment is mine and B claims half is mine, it is only B who is in possession of the portion that is closest to him. He is not attempting to extract anything from A. He only wants to maintain ownership of the portion which is in his possession and this would not be a migo to extract, rather a migo to maintain. Tosfos is explaining that each of the litigants is in possession of the entire garment and any claim to any portion of the garment is inherently a migo to extract from his opponent who has possession of all of the garment, even though it is also in his own possession. See שיטה מקובצת in the name of גליון who vehemently disagree with Tosfos’ understanding that both litigants are equally in possession of the entire garment. He argues that the migo in this case is not to extract, but rather to protect or maintain the portion of the garment that is in the possession of the one who claims “half is mine”. See there for his explanation of why the migo is ineffective. of the garment about which they are arguing, this litigant who is claiming - the entire garment is mine, is equally in possession of the portion of the garment closest to his opponent who is claiming - half is mine, as is [the litigant] who is claiming only half.
The Gemara in Bava Basra 32b seems to say that migo is effective even for the plaintiff: That man who said to his friend: Give me one hundred zuz that you owe me, and this is the document. [The defendant] said: It is a forged document. [The plaintiff] bent over and said to Rabah: It is so, the document is a forgery. However, I had a true document and it was lost. I thought: I will hold this forged document in my hand as some bit of evidence. Rabah said: Why should he lie? If he wanted to lie, he would just say that it is a true document.
That [Gemara] in Perek Chezkas Habatim 32b where the plaintiff presented his document showing that the defendant owed him money. The defendant claimed that the document was a forgery, whereupon the plaintiff bent over and whispered to Rabah: It is so, the document is a forgery. However, I did have a true document, but it was lost. Rabah believed [the plaintiff] to extract money from the defendant with a migo, since he could have claimed that this was a true document. It is evident from Rabah’s ruling that a migo is effective even for extracting money, not only for defending money.
Tosfos is compelled to say that there are two types of migo. One type which is effective only for the defendant and another type that is effective even for the plaintiff. There in Bava Basra 32b, this is the reason that the migo is effective even for extracting funds from the defendant, for even if he would have remained silent, as long as he would not have admitted that [the document] was a forgery, he would have been believed, because the signatures were so well forged that to those who were standing there in the courtroom, they were recognized as the signatures of the witnesses. Since there was no need to respond to the charge of forgery, because it was so well done, a migo that he could have remained silent is effective even to extract funds. However, when one must respond to the charges of his opponent, migo is only effective for maintaining money, but not for extracting it. Here, in Bava Metzia 2a, when one litigant claims that the entire garment is mine, the other litigant cannot remain silent. He must respond with his claim. Since a response is required, the migo is only effective for defending money, but not for the extraction of funds.
The Gemara in Bava Basra 32b continues: Rav Yosef said to [Rabah]: What evidence are you relying on to rule in this matter? This document! This document is merely a shard.
But if the migo in Bava Basra 32b is so strong that it is effective even for extracting money, why does Rav Yosef disagree with Rabah? Rav Yosef holds that not only is there no special migo capable of extracting funds, but there is not even a migo at all. Since the first claim that he is claiming with this document is admittedly false.
We are only to invoke migo when we will ultimately show that [the litigant’s] first claim is true, which we prove by saying that since he could have claimed a different winning claim B) it is proof that what he is presently saying, claim A), is true. But in Bava Basra 32b his initial claim that the defendant owes him money as his document attests, is admittedly untrue. He has admitted that the document is a forgery. For this reason Rav Yosef holds that this is not an acceptable migo, even for maintaining money as is evident in the first story4Earlier the Gemara there 32a cites a similar story about the ownership of a field. The plaintiff claimed that the field was his. The defendant responded by saying - I purchased the field from you and this is the document. The plaintiff insisted that the document was a forgery. The defendant privately admitted to Rabah that the document was indeed a forgery, but that he once had a real document which was lost. In that case as well, Rabah ruled in favor of the defendant because he had a migo and Rav Yosef ruled in favor of the plaintiff. He did not accept the migo even for maintaining ownership of the field. mentioned in that Gemara, and certainly not for extracting funds from a defendant.
Tosfos now wonders why in the case, where one litigant claims - it is all mine, and the other claims - half is mine, we do not rule in favor of the litigant who claims - it is all mine? Tosfos’ question is based on a Gemara in Yevamos 38a. The Gemara is discussing a case of when Ruvain married Leah and passed away childless. His brother Shimon, then took Leah in Yibum, but he did not wait the required three months needed to ascertain that Leah was not pregnant. Leah gives birth to Chanoch, but his paternity is in doubt. Is he the son of Ruvain the deceased brother or of Shimon the yavam? Yaakov, father of Ruvain and Shimon passes away. If Chanoch is the son of Ruvain, he inherits his father’s share of Yaakov’s estate. If he is the son of Shimon, he inherits nothing, because his father Shimon is still alive and Shimon will inherit all of Yaakov’s estate.
Chanoch, whose paternity is dubious and Shimon, the yavam are now coming to divide the estate of Yaakov, the grandfather. [Chanoch] the dubious heir says: This man, referring to himself, is the son of the deceased Ruvain, and half of Yaakov’s estate is mine, since I inherit my father Ruvain’s share. Shimon the yavam says to Chanoch: You are my son and you have nothing at all from Raakov’s estate.
The ruling: Shimon the yavam is definitely an heir of Yaakov. Chanoch, whose paternity is in doubt, is a dubious heir of Yaakov. The doubtful heir, Chanoch, cannot extract funds from the definite heir, Shimon.
If you ask: Let us apply the ruling that a dubious owner of this garment cannot extract from a definite owner?For the litigant who says: The entire garment is mine, definitely has half the garment. Whereas, in regard to the litigant who says: half the garment is mine, there is a doubt whether he owns any portion at all. The situation is one of a definite owner versus a doubtful owner. We should rule in favor of the definite owner, as [the Gemara] says in Perek Hacholetz (Yevamos 38a): a dubious heir, Chanoch, and the yavam, Shimon, who come to divide the estate of Chanoch’s grandfather, Yaakov. Chanoch, the dubious heir says: I am the son of Ruvain, the deceased son of Yaakov. I am entitled to my father Ruvain’s share in Yaakov’s estate. Half of Yaakov’s estate is mine. Shimon the yavam says: You Chanoch are my son and you own nothing of Yaakov’s estate. The ruling is: Shimon is a definite heir of Yaakov, while Chanoch is a dubious heir of Yaakov, and a dubious heir cannot extract any of the estate from a definite heir. In our Mishna as well, the litigant who claims it is all mine is definitely an owner of at least half of the garment by common agreement, the litigant who claims half is mine is only a dubious owner of some of the garment, we should rule the dubious owner cannot extract from the definite owner and he should receive nothing.
We can answer: That there in Yevamos 38a, the yavam Shimon, who is the son of the grandfather Yaakov, is definitely [Yaakov]’s heir. The dubious heir, Chanoch, cannot extract any of [Shimon]’s assets with his dubious claim. However, here in our case where one litigant is claiming all of the garment and his opponent claiming only half, it is not logical that because [Shimon] is definitely the owner of half the garment, that this should help him win the second half.