1) A "MIGU" WHEN A PERSON HAS A CHAZAKAH WITH A VALID CLAIM

QUESTION: The RASHBAM (DH u'Modu) writes that when a person (the Machzik) has a Chazakah of three years on a field and he claims that the field was his father's and that his father purchased it from the previous owner, he is believed because he has a Chazakah with a valid claim. The Rashbam adds that the Machzik has a Migu that he could have said that he bought the field himself directly from the previous owner and he occupied it for three years.

Why does the Rashbam need to add that the Machzik has a Migu? The Machzik should be believed even without a Migu, because he has a Chazakah with a valid claim! Why is the claim that his father purchased it from the original owner weaker than the claim that he purchased it himself from the original owner?

The same question may be asked on the words of the Rashbam earlier (30b, DH Amar Lei) and the Gemara later (41b): when a person has a Chazakah of three years and says that he purchased the field from a third party who purchased it from the original owner in his presence, he is believed because of a Migu that he could have said that he purchased it himself from the original owner. In that case, too, the Machzik's Chazakah is accompanied by a valid claim, and thus the Migu is unnecessary! (KETZOS HA'CHOSHEN 146:12)

ANSWERS:

(a) The KETZOS HA'CHOSHEN answers that the Rashbam mentions the Migu only for added measure, but in truth the Migu is not necessary for the Machzik to win the case. When the Gemara later says that he is believed with a Migu that he could have said that he bought it directly from the original owner, it means that he is believed just as a person is believed when he makes that claim.

However, this answer is somewhat forced. Moreover, the ROSH (3:13) writes explicitly that in the case of the Gemara later (41b), the Machzik is believed only because of a Migu.

(b) The KEHILOS YAKOV (end of #22) answers that the Migu is necessary because the claim of the Machzik has a weakness ("Re'usa"). The weakness is that no one saw the third party occupy the field even for one day. If the third party really bought the field from the claimant, then undoubtedly someone would have seen him on the field for at least one day.

This answer is also not entirely satisfactory, because the third party might have owned the field for only a few hours. Where does the Gemara ever say that not being seen on the field proves that the field is not his? Also, perhaps there are witnesses who can testify that the third party used the field, but the Machzik merely did not go searching for those witnesses!

(c) The NESIVOS HA'MISHPAT (146:22) writes that the question does not begin. If not for a Migu, a Chazakah would only be effective when it is accompanied by a claim that the Machzik himself acquired the field from the original owner. If the claim of the Machzik is that he purchased it from a third party, then the Chazakah cannot support that claim if not for a Migu that he could have said that he purchased it himself.

The Nesivos ha'Mishpat does not explain why this should be so. Why should a Chazakah support only a claim that the Machzik himself purchased the field?

Perhaps the logic behind this distinction is as follows. If a third party owned the field at one point, then perhaps the original owner protested the third party's use of the field and the Machzik was not aware of that protest. Had the original owner protested in the presence of the Machzik, the Machzik would have known that he needed to keep his Shtar for more than three years. However, since he cannot know whether or not the original owner protested against the presence of the third party, he should be required to keep his Shtar indefinitely, out of doubt. Therefore, his Chazakah should not be able to prove that the field belongs to him, unless he is holding the Shtar. However, since he has a Migu that he could have claimed that he bought the field directly from the original owner and he knows for certain that the original owner did not protest against his occupancy of the field, he does not have to present a Shtar, even if the original owner did protest the occupancy of the third party. (The same Migu allows the Machzik to lose his Shtar three years after the original owner protests the Machzik's occupancy. Since the Machzik can claim that he purchased the field after the protest, he is believed to say that the field was his even before the protest.)

2) CHANGING ONE'S CLAIM IN COURT

OPINIONS: The Gemara mentions a case in which the Machzik first asserted that the field belonged to his father. After the claimant brought witnesses that the field belonged to his father, the Machzik changed his claim and said that the field did not actually belong to his father, but rather he purchased it himself from the claimant's father. It is clear from the Gemara that the Machzik's second claim would not be accepted if not for the fact that he found a way to fit it into the wording of his original claim (he explains that the reason why he said originally that it was his father's field was because he felt that his claim to the field was so strong that it was as if he had inherited the field from his father).

The Gemara presents a similar ruling earlier (6a). The Gemara teaches that if a person first says that he never borrowed money from the claimant, and afterwards witnesses testify that he did borrow money but he paid it back, the defendant cannot claim -- as the witnesses say -- that he borrowed and paid it back. Rather, his first claim is upheld in court, and by saying that he did not borrow he effectively admits that he did not pay back any money. Beis Din therefore obligates him to repay the loan based on his admission that no money was paid back.

In the cases of these Gemaras, the Machzik changed his claim after witnesses came and contradicted his first claim. Is a person allowed to change his claim before any contradictory evidence is presented in court?

(a) TOSFOS (32b, DH Amai) implies that a person cannot change his claim, even when no contradictory evidence has been brought. This also seems to be the opinion of the RASHBAM (33b, DH Meheman).

The logic of Tosfos seems to be that the first claim was an implied admission on the part of the defendant that there is no other evidence to support his position. If the defendant says that his parents acquired the field, it is as if he admits that he did not acquire the field. His admission, the Hoda'as Ba'al Din, overrides his later claim, as the Rashbam writes (end of 30b).

(b) The TUR (CM 80) cites the YAD RAMAH here who maintains that before the defendant's claim is contradicted in court, he may change his original claim and make a different claim to support his case. (For example, if he originally said "I never borrowed," he can change his mind and say, "I borrowed but I paid it back," as long as no witnesses are brought to testify that he borrowed.) The Tur explains that the defendant's second claim is accepted because of a Migu: had he wanted, he could have remained silent and maintained his original claim, which would have won the case for him. Now that he changes his claim to a different claim, he is believed with a Migu that he could have remained silent.

The MAGID MISHNEH (Hilchos To'en v'Nit'an 7:8) and the RI MI'GASH (see (c) below) cite support for this from the fact that the Gemara makes a point of saying that only after the claim of the Machzik was contradicted by witnesses did the Machzik change his claim ("*Hadar* Amar Lei"; see also BI'UR HA'GRA CM 79:21 and 80:5, who cites further support from the Yerushalmi in Shevuos).

The Ramah adds that if testimony is brought later to contradict the original claim, the defendant's second claim is no longer accepted. The BEIS YOSEF explains that the reason for this is that the defendant's second claim was accepted only because of a Migu that he could have remained with the first claim. When the first claim is contradicted -- even after the second claim was made -- there no longer is a Migu and the second claim is not accepted (as the Mishnah in Kesuvos 16a and 18b teaches).

The KOVETZ SHI'URIM (#113) asks, why should the second claim be accepted with a Migu? That claim is contradicted by the implicit Hoda'as Ba'al Din of the first claim, and the law is that Hoda'as Ba'al Din is tantamount to testimony of witnesses. Just as a Migu does not give a person credibility to counter the testimony of witnesses, it should also not give him credibility to contradict a Hoda'as Ba'al Din. The Kovetz Shi'urim answers that the second claim does not contradict Hoda'as Ba'al Din because the person is saying that his original claim was mistaken, or that it was based on a misunderstanding or on forgotten facts (or whatever excuse the Ba'al Din gives when he presents his second claim). If a witness would try to change his own testimony in such a manner, Beis Din would not accept his second testimony because of the rule of "Keivan she'Higid Shuv Eino Chozer u'Magid" (Kesuvos 18b), which teaches that a witness cannot change his testimony even if he gives an excuse to explain why he originally presented different testimony. This rule, however, does not apply to Hoda'as Ba'al Din. Even though Hoda'as Ba'al Din is tantamount to testimony of witnesses, nevertheless the rule of "Keivan she'Higid" applies only to actual testimony of witnesses and not to Hoda'as Ba'al Din.

According to this approach, why is it necessary for the Tur to mention a Migu at all? The Ba'al Din should be believed for the same reason that his first claim was believed -- simply because he is presenting a valid claim in court! (See Kovetz Shi'urim there, #113.)

The answer seems to be that it looks suspicious when a person retracts a claim that he presented in court because, normally, people think carefully about what they will say in front of the court. For this reason, the defendant's second claim would not be accepted if not for the Migu. (M. KORNFELD)

(c) The RI MI'GASH and the RAMBAM (Hilchos To'en v'Nit'an 7:8) also write that the defendant may change his claim in court before it is contradicted by witnesses. However, they add that if witnesses later come and contradict the original claim, Beis Din still accepts the new claim of the defendant (which is not contradicted by witnesses, since the claimant changed his mind before the appearance of witnesses).

This is difficult to understand. Why should the second claim of the defendant be accepted when witnesses later come and contradict his original claim? The defendant's second claim is accepted only because of a Migu, but when witnesses come -- even after his second claim -- their testimony should render the Migu invalid! This principle in the law of Migu is evident from many Mishnayos (see Kesuvos 16a, 18b, 22a; see also ME'IRI to Kesuvos 16a, who cites and argues with some Rishonim who seem to contradict this principle). (See KETZOS HA'CHOSHEN 80:3. See KOVETZ SHI'URIM #112, who attempts to refute the proofs from the Mishnayos in Kesuvos. However, his words do not address the cases there on 16a and 18b. See also the footnotes of RAV MOSHE SHMUEL SHAPIRO on the Ri mi'Gash.)

The answer is that the Ri mi'Gash and the Rambam apparently maintain that a person may present a second claim and change his first claim even without resorting to a Migu. Rather, just as he is believed to present a first claim, he is believed to present a second claim, as suggested in the question on the explanation of the Yad Ramah above. Since he is believed without a Migu, even if witness come later the second claim remains valid and is accepted. Why is the second claim not accepted if witnesses testify and contradict the first claim before the defendant changes his claim? Why should the second claim not be accepted the same way it is accepted when he changes his mind before witnesses come? The answer is that if witnesses contradict his claim, then the defendant becomes "Huchzak Kafran"; he becomes confirmed as a liar, and that makes his credibility much worse, such that Beis Din does not accept his second claim after that point, as the Rambam himself writes (Hilchos To'en v'Nit'an 6:6:), and as the RASHBA writes (in Teshuvos 6:38), as well as the SHULCHAN ARUCH (CM 79:9). If a person changes his mind before the witnesses come, he is not "Huchzak Kafran" and therefore he is believed. If he changes his mind after witnesses come, he is not believed because he is "Huchzak Kafran," and not because of the Hoda'as Ba'al Din, as the Rashbam writes (end of 30b). This is also the view of the HAGAHOS MAIMONIYOS (in Hilchos To'en v'Nit'an 7:20).

However, when the TUR (CM 80) quotes the RI MI'GASH, he writes that the Ri mi'Gash accepts the second claim because of the Migu (contrary to the above explanation)! He understands that it is because of the Migu that the Rambam gives credibility to the second claim (as the MAGID MISHNEH, Hilchos To'en v'Nit'an 7:8, writes; see also SHACH CM 79:23). If it is because of the Migu, then why should he be believed after witnesses contradict his first claim?

The KETZOS HA'CHOSHEN answers that the Tur does not really mean that the defendant's second claim is believed because of the Migu. Rather, the Tur means that since the defendant was not yet contradicted in court, his claim is not considered to be Hoda'as Ba'al Din. However, as mentioned above, the wording of the Tur and the Magid Mishneh implies that there is a Migu.

Perhaps the reason why a Migu is necessary is as follows. Both the Tur and the Magid Mishneh write that the second claim is believed even if the defendant left the court after he presented his first claim and then returned and presented the second claim. The Gemara here says that when a defendant leaves the court and comes back with a new claim, Beis Din must suspect that someone outside the court counseled him about what claims to make. Perhaps in such a case Beis Din would only believe the defendant's second claim because of a Migu. In such a case, where the defendant presents his second claim only after returning to the court, when witnesses come later to contradict his first claim his second claim indeed is not accepted (because he no longer has a Migu). The Ri mi'Gash and the Rambam accept the defendant's second claim only when he presented the second claim without leaving the court after his first claim. This fits well with the wording of the Rambam and the Magid Mishneh. (M. KORNFELD)

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