• Rav Yaacov Francus
     In this shiur we will discuss two different halakhic concepts: 'Ma li leshaker' and 'Migo.'  Both are arguments that are utilized in halakha to determine the reliability of a claim that a person can make in court.  We will begin, as per our sugya, with the former.
Part I - Ma Li Le-shaker
     The mishna (Kiddushin 64a) states that if someone who is dying says that he has children, he is believed.  If he states that he has brothers, he is not believed.  This is important because if a man has no children, and has brothers, his wife cannot remarry because she is 'zekuka le-yibum.'  She must either undergo yibum, through which she is married to one of the brothers, or chalitza (a ceremony that releases her from the brothers), after which she is free to remarry.
     The gemara then quotes a braita that relates an argument between two Tannaim: What if at the time of his marriage a man said that he has children, and upon his death he stated that he does not have children?  Or similarly, what if at the time of his marriage he said that he did not have brothers, and at the time of the death he stated that he does have brothers?  Rebbe says that he is believed with respect to those statements which allow his wife to remarry, but is not believed with regard to statements that would forbid his wife from remarrying.  R. Natan says that the husband is believed in all cases.
     Why is the braita a subject of controversy, while the mishna is universally accepted?  Abbaye suggests that the mishna may be discussing an instance in which we have no knowledge of either brothers or children.  In such a case the woman has a chazaka (assumed status) that she is not zekuka le-yibum, since the husband has no known brothers.  Therefore, the husband's claim that he has a brother, that will prevent his wife from remarrying, is not accepted.  His statement cannot overturn the chazaka.  His statement that he has children, which substantiates the chazaka, however, is accepted.  (There is a discussion in the Rishonim about the value of the husband's statement that he has children if  witnesses later state that there are brothers.)
     The braita, however, is discussing a case where there is a chazaka that the husband has brothers, and no chazaka about children.  Therefore, prior to the husband's statement, the woman has a status of zekuka le-yibum.  The husband is nevertheless believed and can uproot this chazaka, because of "ma li leshaker," i.e. he has no reason to lie.  When thinking about a marriage proposal, a woman might worry that perhaps, in some eventuality, she will have to marry his brother due to the laws of yibum.  The husband might want to state that he has no brothers, simply in order to assuage his wife's fears.  But, explains the gemara, we need not assume that he is lying.  He could equally well calm his wife by assuring her that he would give her a divorce before he dies in order to save her from yibum.  (This is Rashi's explanation.  Tosafot and other Rishonim offer alternate explanations.)
     According to Rebbe, "ma li leshaker" is similar to testimony of witnesses.  Consequently, when the husband originally stated that he has children, the statement was accepted as definitely correct, because of 'ma li leshaker,' and overturned the initial chazaka that the woman would be zekuka le-yibum.  A new chazaka was created that she is not zekuka le-yibum, because we totally accepted his claim that he has children.  Therefore, the later retraction of the husband is not accepted against this new chazaka (just as we rejected the husband's words in the mishna because they went against the prior chazaka).  According to R. Natan, however, "ma li leshaker" is on par with chazaka, and not actual testimony.  Therefore it does not suffice to create a new chazaka that his wife is not zekuka le-yibum.  When he later retracts his statement, we believe him just as we did before, since his claim does not contradict any chazaka.
     Abbaye proposes that everyone agrees that the husband is not believed to contradict a chazaka (unless he can claim "ma li leshaker").  However, there is a disagreement among the Tannaim with regard to the strength of "ma li leshaker."  According to Rebbe "ma li leshaker" can overturn a chazaka, similar to witnesses.  R. Natan differs and states that "ma li leshaker" itself has the power of a chazaka, and cannot entirely overturn a pre-existing chazaka.
Understanding Ma Li Leshaker
     "Ma li leshaker," at least according to Rebbe, serves as a proof that the person is indeed telling the truth.  Since there is a readily available valid alternative to ensure that his wife will not be zekuka le-yibum, the husband would not deliberately lie to ensure the same objective.  A person would not willingly lie when he could accomplish the same end in a legitimate manner.  This presumption gives the husband a greater measure of credibility.
     R. Natan rules that the husband is believed when he retracts his earlier denial and affirms on his deathbed that he actually does have brothers.  His wife is therefore zekuka le-yibum and is not free to remarry.  This would seem to indicate that prior to the retraction, the woman could remarry.  This point is the subject of controversy among the Rishonim:
     The Ramban (in the Milchamot) adopts the position that according to R. Natan the husband is not believed at all against a chazaka.  The only factor taken into account is the chazaka.  It is not that the husband is believed when he reverses his claim on his deathbed and states that he has brothers.  Rather, he was never believed when he initially contradicted the chazaka and claimed that he had no brothers (despite "ma li leshaker").  The term "ne'eman," he is believed, which is used by R. Natan in the braita is imprecise.  It is only used since Rebbe used that phrase.  R. Natan's position is that even "ma li leshaker" cannot overturn a chazaka, and the halakha depends entirely on the chazaka.
     The Shita Lo Noda Le-mi (64b s.v. Braita) states that according to R. Natan "ma li leshaker" is as powerful as a chazaka.  Consequently, when "ma li leshaker" confronts the chazaka we reach the situation of a "safek," an unresolved situation.  As a result the halakha is that the woman cannot remarry without chalitza.  However she cannot undergo yibum  either since we have no way to clarify whether or not she is zekuka le-yibum. 
     Most Rishonim agree with the simple reading of the braita.  Accordingly, R. Natan rules that the husband is believed unless he recants and his wife can remarry.  However, since R. Natan reasons that "ma li leshaker" is equivalent to chazaka it is not clear why the husband is believed.  There are various ways to explain this ruling:
     The Rashba (s.v. Ve-R. Natan) states that R. Natan distinguishes between two types of chazaka.  One chazaka is a halakhic chazaka.  If the husband stated AFTER his marriage that he has children, his statement is not accepted.  In this instance the HALAKHIC chazaka of zekuka le-yibum already exists, and "ma li leshaker" is not sufficiently conclusive to overturn an existing halakhic chazaka.
     However, when the husband tells us PRIOR to his marriage that he has no brothers, the halakhic chazaka has not yet been established.  In this case there is only a factual chazaka.  We have a chazaka that a certain person has brothers, however we have no knowledge of any children.  "Ma li leshaker" provides us with a special reason to believe that he is telling the truth.  We accept his statement to the extent that we no longer presume that he has brothers and no children.  Therefore, unless he retracts the husband is believed and the woman is free to remarry.  If, however, he later contradicts himself, the initial chazaka proves to be correct.  Since "ma li leshaker" only serves to indicate that the initial information may be inaccurate, when the person recants, it indicates that our presumption that he would not lie was incorrect.  His statements are not reliable, and we return to our initial chazaka.
     It appears that the factual chazaka does not have the legal status of chazaka at all.  It is simply one of the sources of information used to determine the facts.  With regard to such a chazaka R. Natan agrees that "ma li leshaker" is sufficient to override it.  However, once there is a halakhic chazaka, "ma li leshaker" cannot overturn it.
     Unlike the Rashba, the Ritva's view is that "ma li leshaker" is not better than the factual chazaka.  The two chazakot are equal.  Therefore, we follow the halakhic chazaka which existed prior to the marriage which is a chezkat heter.
     A close reading of Rashi (s.v. Ve-R. Natan) indicates that according to R. Natan "ma li leshaker" alone cannot overturn the chazaka that the woman is zekuka le-yibum.  Only the fact that the husband did not recant even on his deathbed proves that in fact he told the truth.  This is based on the additional presumption "ein adam choteh ve-lo lo," a man does not sin if he has no personal gain, such that he would have recanted before his death if in fact his wife was zekuka le-yibum.
     The Ba'al Ha-maor states that "ma li leshaker" alone is better than the chazaka that the woman should be zekuka le-yibum.  Therefore, if the husband does not recant, the woman is not zekuka le-yibum.  However, the initial chazaka is not entirely eliminated.  Therefore, if the husband recants this proves that the initial chazaka was correct.  When "ma li leshaker" is measured against the chazaka, the rule is that "ma li leshaker" is more powerful.  However, if the husband later recants it indicates that the "ma li leshaker" is not sufficiently conclusive and the initial chazaka is re-instated.
     In summary, the status of "ma li leshaker" according to R. Natan is subject to a disagreement among the Rishonim.  According to the Ramban in the Milchamot, "ma li leshaker" has no standing against a chazaka.  According to the Shita Lo Noda Le-mi, "ma li leshaker" is exactly equivalent to a chazaka and creates a situation of safek.  The Ba'al Ha-maor's view is that "ma li leshaker" can overturn the chazaka of zekuka le-yibum, however, recantation leads to the revival of the original chazaka.
     According to Rebbe, "ma li leshaker" has the same power as witnesses insofar as it can overturn a chazaka.  Therefore, a new chazaka is created that the woman is not zekuka le-yibum.  The later statement cannot overturn the new chazaka which was created.
Part II - Migo
     Sometimes one of the parties can make a winning claim, but instead of presenting the winning claim he presents a different claim.  For example, if Reuven proves that he gave his computer to Shimon, a computer repair man, to fix, Shimon cannot claim that he bought the computer and hence need not return it.  However, if Shimon claims that he never received the computer from Reuven, he is believed, unless Reuven has evidence to the contrary.  However, if Reuven has no evidence, and Shimon claims that he bought the computer, we apply the rule called migo.  Since Shimon has a theoretical reserve claim with which he could have won the case, he is believed also on the claim which he would normally not have been believed about.  Migo (lit. - because of the fact) that he could have denied having received the computer, he is believed when he claims that he bought it.  (See Bava Batra 45a.)
     The gemara in Bava Batra (5b-6a) raises the question of migo versus a chazaka.  The gemara there states that there is a chazaka that loans are not repaid before the due date.  Therefore, if the borrower claims that he repaid before the due date he is not believed.  After the due date, a borrower is believed if he claims that he paid back the loan (unless the lender has a shtar).  The gemara asks what the halakha is if the borrower claims, after the due date has arrived, that he paid back already prior to the due date.  The borrower has a migo, namely, he could claim that he paid back after the due date.  However, his actual claim is contradicted by the chazaka.  The gemara attempts to resolve the question and at the end leaves it open.
     The gemara in Bava Batra does not mention the disagreement of Rebbe and R. Natan, although at first glance the issue at hand is similar.  A claim is made against a chazaka, and Rebbe and R. Natan disagree as to the effectiveness of the claim.  The claim is backed up by the principle of  "ma li leshaker," which appears to be similar to the rule of migo.  Since there is another option readily available to achieve the same end, we have reason to believe that the current claim is correct.
     Rishonim discuss the relationship between the disagreement of Rebbe and R. Natan and the sugya of migo versus chazaka.  The Shita Lo Noda Le-mi (Kiddushin 64b s.v. Braita) states that according to his view that R. Natan requires chalitza since we are faced with a safek, the same is true in monetary cases.  However, in monetary cases the rule is that the money remains where it is and no action is taken.
     However, according to the position that "ma li leshaker" overrules the chazaka of zekuka le-yibum (except when the husband later retracts), even R. Natan appears to take the view that basically migo overrides a chazaka.
     The Ramban in his Chiddushim (64b s.v. Rebbe) states that "ma li leshaker" is more powerful than migo.  In the case of migo it is possible that the person did not think of the reserve claim, and actually thinks that the best claim available is the one that he is using.  Therefore, we cannot be sure that his failure to use the reserve claim proves his honesty.  In the case of "ma li leshaker" we are certain that he is telling the truth since he has an obvious legitimate alternative.  Since guaranteeing his wife a divorce would also save her from being zekuka le-yibum, there is no reason for him to make a false claim.
     The Ritva (64b s.v. Rebbe) says that if in fact he has brothers, the man is running a risk that the truth will come out, unlike the case of migo.  Therefore, "ma li leshaker" in our sugya is more powerful and convincing then the migo of Bava Batra.
     Rather than concentrating on the relative strengths of "ma li leshaker" vs. migo, it is also possible to judge the relative strengths of the chazakot.  The Shita Lo Noda Le-mi distinguishes between the two chazakot.  The gemara in Bava Batra describes a chazaka which is a universal description of human behavior, whereas the chazaka discussed in Kiddushin is a certain presumption which we have regarding whether a particular individual has children or brothers.  Therefore, the chazaka of the gemara in Bava Batra is more powerful, and it is harder to believe that somebody really paid before the due date.  On the other hand, it is possible that the presumed information about a certain individual is inaccurate.  According to this approach the distinction stems from the fact that one chazaka is viewed as better evidence than the other.
     Tosafot in Bava Batra (5b s.v. Mi) state that the sugyot are not related.  The chazaka in Bava Batra is a behavioral fact about people.  This, according to Tosafot, is entirely unrelated to chazakot which deal with the presumed halakhic status of an individual, namely, whether a woman is zekuka le-yibum.  In the sugya in Bava Batra there is something inherently unlikely about a claim that he paid back before the due date.  The sugya in Kiddushin deals with the relationship between migo and a halakhic chazaka.  Sometimes only testimony can overturn a chazaka.  The question is how powerful the "ma li leshaker" is.
     There is another related factor which is raised by the Ramban (in the Milchamot near the end) and other Rishonim.  The sugya in Kiddushin discusses a case where we have a positive chazaka that the man has a brother, and no information about children.  If the man states that his brother died, then he is not actually contradicting the factual chazaka, although he is overturning the halakhic chazaka.  If, however, he should claim that he never had a brother, then he is directly contradicting a factual chazaka.  In such a case the "ma li leshaker" may not suffice, since the factual chazaka already raises a suspicion about the truth of his statement.  Thus, sometimes we have no reason to suspect what somebody says, but we nevertheless require more definite proof.  In such a case "ma li leshaker" may provide the required proof.  However, in an instance where we have reason to believe that a person is lying, "ma li leshaker" may not suffice.  The sugya in Bava Batra can be compared to a case where the man claims that he never had any brothers.  He is making a claim which is inherently  suspect.  Therefore, even Rebbe may agree that a migo does not suffice to back up a claim which is suspect.
[The disagreement between Rebbe and R. Natan may deal with the power they ascribe to "ma li leshaker" in the case mentioned in the gemara.  Just as there is a machloket Amoraim about the rule mentioned in Bava Batra that people do not pay before the due date, there is a machloket Tannaim about "ma li leshaker" when somebody says at the time of the kiddushin that his wife is not zekuka le-yibum.  They either disagree about the factual basis of the "ma li leshaker," or about what level of proof is needed to create a chazaka that the woman is not zekuka le-yibum.]
     The sugya in Bava Batra (134a, b) states that if a husband says on his deathbed that he has sons he is believed even if we had a chazaka that his wife was zekuka le-yibum.  The reason is that he could divorce her, thereby saving her from yibum, so there is no reason for him to lie.  This may also be true according to R. Natan.  The case in the braita is when the husband says something at the time of the kiddushin.  As the Ritva (Kiddushin 64a s.v. De-amrinan Ma Li Leshaker) points out it is inaccurate to say that the claim that he could divorce her is valid, since he is interested in marrying her.  He can promise to divorce her.  The power of such a "ma li leshaker" is far weaker than having the actual ability to divorce immediately rather than lie.  (This point may depend on what precisely the "ma li leshaker" is based on.)  Tosafot (64b s.v. Rebbe) also raise the possibility that R. Natan agrees that the husband would be believed on his deathbed.
     In summary, several factors must be considered when a migo or "ma li leshaker" is measured against a chazaka.  One factor is how good the migo is.  Is it based on a reserve claim which may also be false, or is it based on a readily available and legitimate solution?  Are there other factors to back up the migo, such as the possibility that the truth may be revealed (for example, that the brother may appear)?
     Another factor is what type of chazaka is the migo or "ma li leshaker" operating against.  Is it an halakhic chazaka which already exists, or a chazaka which does not yet exist (the Rashba's distinction between a statement made before the marriage which prevents the creation of the chazaka of zekuka le-yibum, and a statement made after the marriage)?  Furthermore, does the migo merely seek to overturn an halakhic chazaka, or does it contradict a factual chazaka?  A factual chazaka may raise serious doubts about the migo.  If we are dealing with a factual chazaka how powerful is it?  Is it a universal chazaka, is it based on unknown sources?
     There are several other sugyot which deal with migo and chazaka.  A full discussion of all of them goes beyond the scope of this shiur.
     One topic which I have avoided is a discussion of the rule of migo.  In this shiur I have treated migo as an indication that a person is telling the truth since he had better options available and given those options would not have chosen to make this claim if it were false.  There is another way of viewing migo as a formal rule which gives the current claim the power of the reserve claim.  This point, however, goes well beyond the scope of this shiur.
Sources for next week's shiur:
Kiddushin (65a) mishna and gemara "Ka mashma lan" (the second one).
Ketubot (8b last line) Amar R. Eliezer ... alav Rashi s.v. Ha-omer.
Ketubot 9a "Ela hakhi ka-amar...eidim dami.
22a T"R Ha-isha ... ne'emenet (second to last line).
Keritut (11b) mishna "shnayim omrim...patur;" gemara 12a "Ibayeh le-hu...mimei'a ish."
Ketzot Ha-choshen 34:4 - segment in which he addresses the nature of Shavyei.
Shitta Mekubetzet Ketubot 22a in the name of Rabenu Yona s.v. Masnisin...Eidim.
Ritva Ketubot (8b) s.v. Amar R. Eliezer "Ve-ha Dika'amar R. Eliezer...Didei.
"Ve-ha Deamrinan...Le-kaima.
Rambam Hilkhot Ishut 24:17; Hilkhot Issurei Bi'a 20:13.
Shitta Mekubetzet Ketubot (8b) Ve-ata (page 91 in standard Shitta Mekubetzet).
Shitta Mekubetzet Ketubot (9a) Aval Hakha "Ve-da She-rashi...Be-bachur (page 89 in standard Shitta).
1) The gemara in Kiddushin questions whether shavyei should impose an issur upon the woman as well?  How is this question impacted by the nature of shavyei?
2) What are the different ways to read the maskana of the gemara in Ketubot (9a) that shavyei applies even when he might have erred?  Contrast the Ritva's reading with that of the Shitta Mekubetzet.
3) Why does Rashi demand that the husband's accusations are only accepted if the bed sheets were lost or the woman has a physiological condition?
4) According to the Shitta Mekubetzet we require that the husband actually demand that his wife be prohibited to him because of his claim.  Why do we require this rather than just listening to the evidence he presents?