There Is a Slaughtered Ox Before You

 

I.        A PROBLEMATIC MIGGO

Today we shall shift our attention from the position of Rabban Gamliel to that of Rabbi Yehoshua. We shall begin by focusing on Rabbi Yehoshua's miggo argument, underlying the last part of our mishna:

And Rabbi Yehoshua agrees that if someone said to his fellow: "This field was your father's and I bought it from him," that he is believed, because the mouth that forbade is the mouth that permitted. But if there are witnesses that it was his father's, and he says, "I bought it from him," he is not believed.

          The context of the last part of the mishna is difficult. The Gemara attempts to clarify it, and concludes as follows:

He is referring to miggo, and he is referring to the first chapter. To which [case is he referring]?…

Rather to this: "[If] someone married a woman and did not find in her [signs of] a betula, [and] she says: "After you betrothed me I was raped, and your (lit., 'his') field has been flooded," and he says: "Not so, but rather [it happened] before I betrothed you"; Rabban Gamliel and Rabbi Eliezer say: She is believed. And Rabbi Yehoshua says: We do  not live by her mouth.

For since, if she had wished, she could have said: "I was injured by a stick [when I was already] betrothed to you," by which she would not have disqualified herself from the priesthood, but she said: "I was raped," by which she does disqualify herself from the priesthood, for this [reason] Rabban Gamliel says that she is believed.[1]

And Rabbi Yehoshua says to Rabban Gamliel: About the miggo here, I agree with you. About that miggo there, I disagree with you.

Now since this is a miggo and that is a miggo, what is the difference between this miggo and that miggo?

Here, there is no slaughtered ox before you. There, there is a slaughtered ox before you.

          The miggo argument rejected by Rabbi Yehoshua is difficult, if not impossible to understand. In general, miggo means that a person could have achieved his goal by putting forward a different claim, and therefore we believe him regarding the claim that he actually made. The simple understanding is that we are dealing here with proof that he is telling the truth, for had he wanted to lie, he would presumably have chosen the other claim. Many Acharonim argue that another element is involved here, that even if we don't define the matter as proof (for some reason that we will not go into here), a person enjoys the benefits of the alternative arguments that he could have put forward, even when he does not actually use them.

          In our case, we are dealing with a woman who claims that she was raped after she was already betrothed, and according to the Gemara's explanation Rabban Gamliel believes the woman based on the miggo argument (apparently in combination with the fact that she presents her claim with certainty, whereas her husband can only plead "perhaps"), that she could have accounted for the absence of signs of a betula by claiming that she had lost them as a result of an accidental injury (mukat etz, "injured by a stick"). However, according to Rabbi Yehoshua, had she made this claim, she would not have received her ketuba, for there would have been no reason to believe her. Therefore, the Gemara suggests a different advantage that she would have enjoyed had she claimed she was a mukat etz: "she would not have disqualified herself from the priesthood." That is to say, the woman wants us to believe that she was raped following her betrothal, and therefore she is entitled to her ketuba, based on the miggo argument that she could have claimed she was a mukat etz. But had she claimed she was a mukat etz, she would not have received her ketuba, and the advantage of the claim of "mukat etz" over the claim "I was raped after betrothal" lies in the fact that a mukat etz is not disqualified from the priesthood, whereas a woman who was raped after betrothal is disqualified from the priesthood.

          As for the various understandings mentioned above regarding the argument of miggo, it is clear that in such a case there is no room to speak about enjoying the benefits of the alternative arguments, for the alternative argument would not have given the woman the desired benefit, entitlement to her ketuba. We can only speak of the miggo argument serving as proof. That is to say, there is good reason to believe the woman because she appears to be an upright person – she concedes that she is disqualified from the priesthood, even though she could have presented a claim by which she would have remained fit for the priesthood.

          This proof, however, is also very problematic. There is a famous question relating to the very idea of a miggo as proof: Surely once there is a law of miggo, it nullifies its own validity, for now the fact that the litigant put forward the weaker claim proves nothing, since it may be an intentional ploy on the part of a litigant who is aware of the laws pertaining to miggo. It seems to me that generally speaking there is no difficulty – it can still be argued that had the litigant wished to lie, he could have done so in a different manner, for he would have been believed with that alternative claim and he would have achieved his goal. But here the question is valid: Had a little birdie told the woman about the existence of a miggo argument, she would have known that it is more advantageous to herself to put forward the present claim ("I was raped after betrothal"), for only in that way would she receive her ketuba, and had she presented the alternative claim ("mukat etz"), she would not receive her ketuba. How then can we believe her based on this miggo argument? And indeed, the Ritva (Ketubot 12b) writes:

To be sure, the Gemara brings this miggo below at the beginning of the second chapter, but it is really not a miggo. For Rabbi Yehoshua who disagrees with Rabban Gamliel in the case where she says she was a mukat etz or that she was raped after betrothal – also disagrees in the case where she says she suffered an accidental injury after betrothal, for why is this better than that… But rather here we invoke a miggo argument having only minor force, and so too in the second chapter, because she thinks that it would have been better for her to put forward the alternative claim. But the real reason of Rabban Gamliel is the chazaka that the woman was still a betula. And there are many readings that only have the last reason.[2]

From our passage, however, it seems that we are dealing with a bona fide miggo according to Rabbi Yehoshua. After all, the gemara questions his position as follows: "Now since this is a miggo and that is a miggo, what is the difference between this miggo and that miggo?" Although the gemara concludes that Rabbi Yehoshua rejects this miggo, it appears to be a legitimate miggo that Rabbi Gamliel would accept.

II.       TWO UNDERSTANDINGS OF THE MIGGO

We shall examine two different understandings of this miggo argument, which in great measure correspond to the different understandings that we presented in the previous shiur of the combination of a chazaka and an argument presented with certainty, though here, it must be admitted, the explanations are weaker.

1.       The Shita Yeshana in the Shita Mekubetzet 12b explains, as we said in the previous shiur, that a claim presented with certainty that is accompanied by any kind of support is regarded as a claim that demands a response, and the claim of "perhaps" is not considered a response. This, however, does not suffice to remove money from another person. That requires an additional element – a strong claim of "certain" and a weak claim of "perhaps," or even a problematic miggo as in our case. That is to say, the main factor removing money in our case is not the weak proof offered by the problematic miggo, but rather the state of "certain and perhaps"; the miggo merely joins the "certain and perhaps" in order to remove money. The matter, however, requires careful examination, for the proof in the miggo in our case appears to be much weaker than the proof of a strong "certain" and a weak "perhaps," which according to Rav Nachman and Rabbi Yochanan does not suffice to require a response.

2.       It would appear from the Rashba in Kiddushin 50a that the miggo serves as an independent factor that can remove money, for he implies that we may not require "certain and perhaps," and that "perhaps and perhaps" suffices:

Since a claim of accidental injury would have been a more advantageous claim for her, but she did not use it, but rather she presented a claim that was not as advantageous to her, there is a chazaka that she is not lying, for were this not so, she should have put forward the more advantageous claim, and such a miggo is a miggo. But only where she is not contradicted [by a definitive claim of the husband]… But in a case of "certain and certain," it is only a miggo if a claim could have been put forward that would have been believed.

          In order to remove money from a defendant who does not present his claim with certainty, even such a miggo is deemed sufficient proof.

          As stated above, these explanations are far from being simple, and therefore it is surprising to find that in our sugya the Gemara recognizes the miggo to such a degree that it raises the question:

Now since this is a miggo and that is a miggo, what is the difference between this miggo and that miggo?

III.      "A SLAUGHTERED OX BEFORE YOU"

The Gemara's answer to this question is: "Here, there is no slaughtered ox before you. There, there is a slaughtered ox before you." Let us examine the various ways in which the Rishonim understand this distinction and the analogy of a "slaughtered ox."

Tosafot

There, there is a slaughtered ox before you – for the woman has no signs of a betula, and she cannot claim she is a betula, just as in the case of a slaughtered ox, where it cannot be argued that it is alive. Therefore, whether she says I was raped after betrothal or she says that she was accidentally injured after betrothal, she is not believed. Here, there is no slaughtered ox before you – and he is believed on the basis of the miggo argument, for had he wanted [to lie] he could have said, "It had never belonged to your father."

          According to Tosafot, perhaps the Gemara is simply saying that a miggo argument cannot be invoked when the alternative argument would not have achieved what is now being achieved by the argument that was actually put forward (in the first part of this shiur we tried to explain how such a miggo is possible). In other words, Rabbi Yehoshua is not prepared to accept the problematic explanations that were proposed above, but he feels a need to say that he has no objection to the very idea of miggo.

BA'AL HA-MA'OR

The Ba'al ha-Ma'or seems to have had a different reading of the Gemara's answer: "There, there is no slaughtered ox before you. Here, there is a slaughtered ox before you." Based on this reading, he proposes a different understanding of the analogy of a "slaughtered ox" and of the distinction between the cases:

There, there is no slaughtered ox before you – this means: In the case of a man who marries a woman and finds that she was not a betula, the chazaka [in favor of the defendant] regarding the money impairs what she says, just as the chazaka of prohibition that an animal has during its lifetime impairs the slaughter until we know how it was slaughtered.

          The Ba'al ha-Ma'or does not distinguish between the quality of the miggo in the two cases, but rather between the circumstances. A miggo is not effective against a chazaka of possession. We leave money in the hands of the party who has a chazaka that it is his, just as in cases of uncertainty regarding the fitness of slaughter, we leave the animal in the presumptive state of being forbidden.[3]

          Accordingly, in the mishna's case regarding which Rabbi Yehoshua agrees – "this field was your father's and I bought it from him" – we must understand that the miggo argument does not clash with a chazaka of possession. This, however, is not so simple. In cases involving land, as opposed to money or movables, the dispute is generally not resolved on the basis of who enjoys present possession of the land, but rather on the basis of who was the mara kama ["previous owner" – i.e., the last person to have enjoyed uncontested ownership of the property]. In the mishna's case, the party claiming present ownership of the property agrees that the other party's father had previously owned the property, and the question before us is whether he had bought the property from the father, or whether he had taken it in an illegal manner. Therefore there is room to say that the other party enjoys chazaka over the property, and if miggo is ineffective against a chazaka of possession, it should be ineffective here.

          How then are we to understand the words of the Ba'al ha-Ma'or? It seems that we can propose two different explanations:

1.       The Ba'al ha-Ma'or joins the long list of Rishonim who say that the argument of miggo does not suffice to remove money from the defendant. And we must examine whether removing land from the chazaka of the mara kama by way of a miggo is considered a miggo of removing money from the defendant. From the Tosafot in Bava Batra, it would appear that this is the subject of an Amoraic dispute. The Gemara there says as follows:

A certain man said to another: What are you doing on this land? He replied: I bought it from you, and here is the deed of sale. He said to him: It is a forged document. On this the other leaned over to Rabba and whispered to him: It is true that this is a forged document; I had a proper deed but I lost it, so I thought it best to come into court with some sort of document. Rabba said: What motive has he for telling a falsehood? If he had liked he could have said [without fear of contradiction] that the document was genuine. Rav Yosef said to him: On what do you base your decision? On this document? But this document is a worthless piece of clay! (32a-32b)

          According to Rav Yosef, we cannot invoke a miggo in the case of a dispute between the first owner and the current dweller in favor of the current dweller. The Tosafot explain that according to Rav Yosef this is a miggo to remove money:

It may be asked: Let us believe him with a miggo that if he wished [to lie] he could have said that it was a genuine deed of sale! The Rivam answers that we do not invoke a miggo argument to remove money from the defendant. And the fact that [the current dweller] has chazaka over the land means nothing, for land is always in the chazaka of its owner… We only invoke a miggo to retain possession of money, i.e., that a person can exempt himself from paying by way of a miggo. (s.v. amai)

          In other words, according to Rav Yosef a miggo in favor of the current dweller against the mara kama is regarded as a miggo to remove money. Rabba does not necessarily disagree with him on this point, for he maintains that a miggo argument may be invoked even to remove money. Later in the passage, however, the Gemara cites a position that makes an important distinction:

Rav Idi bar Avin said: The accepted ruling follows the view of Rabba in the case of land and that of Rav Yosef in the case of money. It follows the view of Rabba in the case of land, because [we say]: Let the land remain in its present ownership; and that of Rav Yosef in the case of the money, because [we say]: Let the money remain in its present ownership.

          The Tosafot explain that Rav Idi bar Avin agrees with Rav Yosef that a miggo to remove money is problematic, but he holds that this problem does not exist in the case of land:

It seems to the Ri that this is the reason that the law in the case of land is in accordance with Rabba, and in the case of money in accordance with Rav Yosef – because we invoke a miggo to maintain money [in its owner's possession], and so we maintain the land in the possession of the present dweller. (s.v. ve-hilkhata)

          That is to say, while it is true that in cases involving disputes over land, we recognize the chazaka of the mara kama, we cannot ignore the fact that the current dweller who has the miggo enjoys possession of the land, and the miggo that is invoked does not remove the land from anyone's possession.

          According to this, the view of the Ba'al ha-Ma'or accords with the view of Rav Idi bar Avin, whose view has been accepted as law.[4]

2.       It may be suggested that in this case even Rav Yosef would agree, but for this we must say that even the Ba'al ha-Ma'or recognizes the difference between the miggo in our passage and other instances of miggo. In any event we must ask regarding the view of Rav Yosef according to the Tosafot - that one who enjoys present possession of land cannot gain ownership against the first owner with the help of a miggo – how does he understand the case in our mishna: "This field was your father's and I bought it from him"? Here we come to an issue that will come up again in our chapter – the relationship between hapeh she-asar argument and miggo. We shall not exhaust this issue at this time, but let it be noted that there are several different understandings in the Rishonim regarding the hapeh she-asar argument. Some see it as an ordinary miggo, others see it as an especially strong case of miggo, and yet others understand it in a completely different manner: Not only could I have put forward a different claim, but our entire knowledge of the situation follows from what I said. I therefore propose that you take my words as a package deal, that can be wholly accepted or wholly rejected, but you cannot take part of what I said and hold it against me without accepting the rest of what I said.[5]

In the case of our mishna, the son of the first owner does not have witnesses to the fact that his father had been the mara kama, and our very knowledge of this is based on the words of the person who is currently sitting on that land and who decided to share that information with us. It is possible that such a situation changes the definition of chazaka over the land and transfers it to the person currently in possession of it. In general, chazaka is enjoyed by the mara kama, because actually sitting on the land is of secondary importance in relation to clear knowledge of uncontested ownership. But when our very knowledge that he was the mara kama is based on the words of the person currently sitting on the land, it is the latter who is regarded as owner of the land, and this gives him chazaka.

It may be for this reason that the miggo here is regarded as a miggo to retain possession rather than a miggo to remove from the possession of another person, even according to the view that the miggo involving a "forged deed of sale" is regarded as a miggo to remove from the possession of another person. We are not dealing here with a miggo argument that the claimant could have put forward a better claim, but rather our very knowledge of the basic facts is based on what he said, and hapeh she-asar hu hapheh she-hitir.

The Ba'al ha-Ma'or wishes to distinguish between the case on p. 12b – a dispute regarding the time that the woman had been raped – and our case regarding disputed land. There the husband certainly enjoys a chazaka on the money, for we are not dealing with a concrete asset, but with a financial obligation, and in such a case the miggo comes to remove money from the possession of another person. In our case the miggo is regarded as a miggo to retain possession, either because of the status of the disputed property or because of the nature of the miggo.

RASHI

          In light of what has been said thus far it is possible to distinguish between three cases of miggo or something like a miggo:

1.       On the weak side of the spectrum, there is the weak miggo of p. 12b (credibility in the case where the woman claimed she was raped after betrothal based on the miggo that she could have claimed that she had suffered an accidental injury), which is not based on a winning alternative claim.

2.       On the other end of the spectrum, there is the case of hapeh she-asar, where our entire knowledge is based on the admission of the defendant. Some argue that the hapeh she-asar argument goes beyond the idea of miggo and enjoys certain advantages owing to its unique character.

3.       In the middle there is the ordinary miggo, in which case the defendant must respond to the plaintiff's claim, and he could have put forward a winning claim more advantageous to himself, but he decided to put forward a less advantageous claim.

When we come to distinguish in the framework of the position of Rabbi Yehoshua between different cases of miggo, the border can be erected between the weak miggo and the ordinary miggo, as we suggested according to Tosafot. Alternatively, it might be suggested that Rabbi Yehoshua denies the whole concept of an ordinary miggo,[6] and that he only accepts hapeh she-asar argument. Rashi clearly adopted the second approach, and greatly raised the criteria for defining a case as one of hapeh she-asar, and thus severely restricted the idea of miggo according to Rabbi Yehoshua. Rashi writes as follows:

Hapeh she-asar – This one only knows that it had belonged to his father based on the other one's words, and that which he forbade, he [also] permitted…

I agree about this miggo, for had he wanted, he could have remained silent and not said: "It was your father's," [and so] now that he said: "I bought it," he is believed…

Regarding the field, there is no slaughtered ox before you, so that its owner should think of asking, "Who slaughtered it." That is to say, had he remained silent, nobody would have challenged him. Therefore, were it not true that he had bought it from him, he would not have said: "It was your father's." Therefore, we say miggo. But in the case where he did not find her to be a betula, there is a slaughtered ox before you – the fact that he did not find her a betula drove him to come to court. And even though she could have put forward a more advantageous claim, we do not say miggo, for perhaps it did not enter her mind, or maybe, she is being deceptive.

          Rashi restricts the case regarding which Rabbi Yehoshua agrees to the situation where the entire dispute arose owing to the exclusive initiative of the person currently sitting on the land, in which case we accept his words in their entirety.[7] In a case where the plaintiff presented a claim, it is regarded as an ordinary miggo, because the defendant did not have the option of remaining quiet, and such a miggo was not accepted by Rabbi Yehoshua. The Rishonim strongly objected to the position of Rashi.[8] It must be examined whether Rashi's words are limited to Rabbi Yehoshua, or perhaps they serve as a general criterion for the principle of hapeh she-asar which is relevant according to some views even in the framework of Rabban Gamliel, as having a different nature than that of the ordinary miggo.

IV.      PREPARING FOR THE NEXT SHIUR

In the next shiur we will continue in the Gemara from "ve-keivan de-rov nashim betulot nisa'ot, until the colon on p. 16b.

As background for the passage and the discussions in the Rishonim ad loc, see also the Amoraic disagreement whether regarding financial issues we follow the majority, and the proof brought from our passage: Bava Batra 92a, "itmar" until 92b, "ta shema."

Additional sources:

1.       16a, Tosafot, s.v. keivan; Tosafot Yeshanim (printed in the margin); Tosafot Shantz (see below); Ba'al ha-Ma'or, 5b in Alfasi, s.v. ve-keivan. How did the Ba'al ha-Ma'or understand the combination of rov and chazaka? Can this be understood in a different manner?

2.       Milchamot, s.v. katuv be-sefer ha-ma'or. On what point does the Ramban disagree with the Tosafot Yeshanim and the Ba'al ha-Ma'or? What is the meaning of his argument regarding the chazaka in our passage? See also Shita Yeshana in Shita Mekubetzet (see below).

Tosafot Shantz, Ketubot 16a:

דאפילו לשמואל פריך... דרובא דפליגי בו רב ושמואל גרוע, כגון ההוא דריש המוכר, פירוש משום דההוא גברא זבין להכא ולהכא. ואע"ג דפריך התם מרוב נשים בתולות נישאות לרב, לשמואל הוה ניחא, משום דס"ד ד'רוב הנשאות בתולות יש לה קול' מגרע לה, ודמי לההיא דפליגי ביה; ומשני ד'רוב הנשאות יש לה קול' מגרעי יותר מדאי ולא דמי ליה כלל וניחא אפילו לרב. והשתא ניחא בשמעתין דפריך בין לרב בין לשמואל, דאיכא למימר דלא הוה מסיק אדעתיה ד'רוב הנשאות בתולות יש לה קול' כלל, אע"ג דבהמוכר פי' ידע לה...

Shita Mekubetzet, Ketubot 16a:

דכיון שנשאת זה ימים רבים אזלה לה חזקה דבתולה. שיטה ישנה. ועיין בספר המלחמות להרמב"ן ז"ל.

(Translated by David Strauss)