Sholom Rav,

A very good point! I'm not sure that I have an answer to the question, but I would suggest the following. Bear in mind that had he remained silent, he would have had an undisputed Chazakah, and the question was whether his comment invalidated his own argument or not.

My point is that had he whispered something in his own favor, he would definitely not have been believed, and it is only because his basic comment agreed with his opponent that the question arises whether he has shot himself in the foot or not. And if not, he is only believed because he could have remained silent, not on account of a claim that he whispered to Rabah.

Be'Virchas Kol Tuv,

Eliezer Chrysler

Leslie, you are in good company, because Rav Moshe Feinstein and Rav Yaakov Kaminetsky, zt'l, also seemed to be rather mystified by this Gemara!

1) Rav Moshe, in Dibros Moshe here 58:23, was worried why it was necessary (and what Halachic ramification there is) for the Gemara to inform us that it was whispered, in this case. Rav Moshe's answer may help us to answer your question also. Rav Moshe writes that the occupier [there seems to be a printing error in Dibros Moshe, but I think this must be the correct understanding - DB] was worried that after he admitted that the deed was forged, he might not add immediately add that he had possessed a good shtar that got lost. If one does not say the alternative "Migo" argument immediately one loses the power of the Migo. This is called a "Migo l'Mafreia" which Tosfos explains at length (above 30a DH Lav) is invalid. Tosfos writes that normally if one says a bad argument, but could have said instead a good argument, one is believed with the weaker argument because one possessed the option of making the stronger ta'ana. However if one did not say the alternative argument immediately, one is no longer believed with it, because one would anyway be forced to say it in order to wiggle out of the weak argument.

2) Using the above idea, we may be able to resolve your problem, Leslie. The litigant was afraid that if he would say out loud that the deed was forged, he would immediately be attacked by the protester and would not have the chance to add immediately that he had possessed a good one. [Rashbam DH Lachish does write that the reason he whispered was in order that the opponent would not hear] Therefore, even though generally speaking it is not proper to whisper things in court, sometimes one may do this if one is afraid of a hostile reaction from the opponent, which may prevent one from saying necessary things.

3) Rav Yaakov Kaminetsky (in Emes l'Yaakov) adds another reason why it would seem logical that a Dayan is not allowed to hear the whispering of one of the litigants. This is the idea of "Mistatmin Ta'antei". For instance, the Gemara Shavuos 30b reports an account where Rav Papa allowed one litigant to sit down in court, even though the other litigant was required to stand. The Gemara there asks how was Rav Papa allowed to do this; discrimination against one of the parties will lead to "Mistatmin Ta'antei"; his "arguments will be blocked up". Because he feels the Dayan is prejudiced against him, he will not be able to argue his case properly. We learn from this that one should not do things in court which cause one of the parties to feel that bias is involved.

To resolve this problem Rav Yaakov asserts that even though the other litigant did not hear what his opponent said, nevertheless the other witnesses present in court did, so there would not be a feeling of secrecy and prejudice on the part of the Dayan.

4) However it occured to me that according to Rav Moshe's idea one can resolve Rav Yaakov's problem. If one is afraid of a powerful attack on the part of the opponent one need not be worried about favoritism in court, because on the contrary the opponent is suspected of intimidating behavior.

Incidentally, Rav Feinstein concludes that this difficulty still requires fuirther study.

KOL TUV

Dovid Bloom