One of the most widespread halakhot is the legal device known as migu. If a litigant possesses a claim with which he could have triumphed, he is believed even if he lodges an alternate claim that in and of itself is not legally convincing. The mere potential to win a case with an alternate claim grants that litigant legal victory.
This halakha is discussed in countless gemarot, as well as extensively by the Rishonim. The gemara notes very few limitations to the application of migu, but one interesting limitation is raised by several of the Ba’alei Ha-Tosafot: migu le-hotzi lo amrinan – migu cannot be utilized to extract monies from a defendant. According to these positions, a migu can only be applied to protect the defendant, not to obtain money.
The issue of whether migu can be applied le-hotzi is the subject of great debate. Although Tosafot (Bava Metzia 2a; Bava Batra 32b) claim that migu cannot be utilized for extraction, several gemarot imply that it can. Based on these gemarot, the Ramban (Bava Batra 32) claims that the issue is inconclusive.
For those who disqualify migu le-hotzi, two possible logics can be applied. One possibility is that a migu is weaker than a chezkat mammon, and therefore cannot overcome the evidence implicit in possession. Every Jew is assumed to be honest; if he is in possession of an item, tacit proof exists that he acquired that item legally. Although the principle of migu also provides moderate indication that the litigant is honest (as if he were lying, he would have raised a more brazen lie), its forensic potency cannot overpower the tacit proof of possession which the muchzak enjoys.
An alternate logic would suggest that migu is not weaker than the “opposing” evidence implicit in possession, but is instead completely irrelevant for proactive extraction of monies. Migu is inherently a defensive tool employed to reinforce the legal position of the defendant/possessor. It is fundamentally incompatible with the extraction of monies.
In developing this idea, R. Lichtenstein would cite a parallel example of halakhic device that is solely intended as a defensive measure, rather than for proactive extraction of money: ta’aninan. Ta’aninan is a defense measure intended to protect orphans. If orphans are litigated against, a beit din will intervene and defend their inheritance with every possible claim that the deceased parent might have lodged. The orphans are too innocent of their parent’s financial details to adequately defend themselves, and they therefore require legal intervention. Obviously, ta’aninan is a defense measure; the prospect of beit din launching litigation on behalf of orphans against potential third parties defendants is absurd. It cannot be used to initiate litigation toward prosecution of funds. In a similar vein, migu may solely be a defense measure; its inability to extract funds is not (only) due to its being weaker than the opposing proof.
There are several potential consequences to these different logics. Foremost is the question of tzeirufim. Can migu be employed le-hotzi if it combines with other halakhic forces, which independently cannot overcome chezkat mammon? Perhaps, when coupled with migu, those forces may be potent enough to allow extraction.
Three gemarot (Ketuvot 12b; Shavuot 42a; Bava Metzia 110a) describe scenarios in which migu is employed to extract monies from defendants. Indeed, the Ramban cites these sources in his dispute of Tosafot’s position that migu le-hotzi lo amrinan. Yet in each scenario, migu is joined by an additional force: in Ketuvot, by a bari ve-shema (whereby the prosecution’s claim is lodged with certainty and the defendant merely speculates), and in the latter two gemarot there is the presence of an inconclusive shetar. In fact, Tosafot (Bava Batra 32b) who disqualifies migu le-hotzi deflect the question from Shavuot 42a by highlighting the cumulative force of both migu and shetar as justifying the possibility of extraction, and the Mordechai in the beginning of Bava Metzia raises a similar claim. Clearly, Tosafot view migu as insufficient to allow extraction of funds, and therefore allow migu to combine with other forces to overcome the potency of chezkat mammon and effect extraction. Had Tosafot regarded migu as completely unsuitable for hotza’ah, they would not have allowed migu to combine with other factors.
A second question surrounds the issue of how to define cases of migu le-hotzi. What would happen if the migu did not oppose a chezkat mammon, but was being utilized in an aggressive manner to extract money? Shavuot 42a presents such a case: The malveh claims money from the loveh/defendant, who claims that he repaid the debt at an earlier stage. The malveh retorts that the earlier payment was in lieu of a different debt; the currently litigated debt must still be paid. The malveh asserts his honesty, since he could have entirely denied the alleged earlier payment entirely (as no one witnessed it). In this instance, the actual dispute surrounds the monies previously paid to the malveh. These monies are already in possession of the malveh; he is applying his migu in support of his possession of these monies, so that there is absolutely no legal clash between the migu and the chezkat mammon regarding the disputed monies. However, the malveh is utilizing a migu to extract new funds from the defendant during the current litigation. Thus, this situation describes a scenario in which there is no legal clash between a migu and a chezkat mammon, but a migu is being employed to extract funds.
Presumably, if migu is weaker than a chezkat mammon, it would only fail in situations in which it directly clashes over disputed money with a chezkat mammon, as migu’s statement about disputed money cannot overcome the statement of the chezkat mammon. In our instance, migu should operate even according to those who claim migu le-hotzi lo amrinan, since there is no direct clash. Perhaps, Tosafot were not perturbed by this gemara in Shavuot 42a precisely because they viewed the failure of migu le-hotzi to be based on migu’s weakness vis a vis a chezkat mammon, and that issue is only relevant in situations of direct clashes.
If, however, migu is purely a defensive tool that can never be employed for proactive extraction, migu would fail in this scenario as well, since ultimately the malveh is wielding a migu for the overall purposes of hotza’ah of money from the loveh. Through the migu, he wants to be believed that the monies he collected earlier were independent of the current litigation, so that he can continue prosecuting the collection/extraction of new funds. Migu is being employed aggressively and should therefore fail.
The previous nafka mina discussed a scenario in which no clash exists between the migu and chezkat mammon, but the migu is nevertheless applied aggressively. What about an inverse situation, in which the migu is not applied for extraction, but a clash exists between the migu and chezkat mammon? Such a scenario arises in the first case of Bava Batra (32b), in which an alleged squatter of land defends his squatting against the previous owner through a migu. It appears (from the position of Tosafot) that the gemara is inclined to permit this migu because the squatter is currently resident upon the land, even though it disallows an identical migu for someone who is prosecuting collection of funds from a defendant. Legally, the two cases are not much different; in each instance, an identical migu combats a chezkat mammon of the opponent. From a purely halakhic standpoint, standing on land has no meaning; legally, the land is still in the possession of the last known owner (the mara kama). Yet the gemara justifies application of this migu because the squatter who is lodging it is already on the land. This is a situation in which migu is clashing with an opposing chezkat mammon, but is not being employed in an aggressive fashion, since the migu beneficiary is already physically on the land and seeks to remain. Although the migu would change his legal status and although it opposes a chezkat mammon, it is not being employed as an agent for empirical change. This scenario is the opposite from shavuot in which there was no clash between the migu and the chezkat mammon but migu was being employed aggressively. In this instance migu is being utilized defensively but it does clash with an opposing chezkat mammon.
If migu is weaker than an opposing chezkat mammon, it should fail against this chezkat mammon and should not be applied. If, however, migu is simply not suited for transforming situations, it may be applied in this context, since the situation is not being transformed.
A parallel to this scenario – legal clash without actual change – may be detected in the gemara in Bava Metzia (2a). Two people arrive in beit din jointly clutching a garment. Tosafot debate applying a migu to one of the parties. The Rivam (cited in Tosafot) disqualifies the migu, since it is employed to extract part of the jointly-held garment on behalf of the migu-proposer. Since the Rivam maintains that migu le-hotzi lo amrinan, he rejects this migu. Tosafot Ha-Rid disagrees (and ultimately provides a different reason to disqualify this migu). Since the migu candidate is also clutching the tallit, he is hoping to extract, but also to maintain (le-hachazik). This situation cannot be deemed migu le-hotzi. Indeed, legally the migu is clashing with the chezkat mammon (since each party is in full possession of the entire garment, part of which is being awarded to the migu party). However, in an overall sense, the migu party is not extracting items not previously possessed, since he too was in full possession of the garment. This resembles the situation in Bava Batra, where migu reinforces a squatter’s position. Legally, the migu clashes, but no change is being wrought.