Claims to Fruit

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The Gemora establishes that a person is believed if he claims that fruit was sold to him. The commentators explain that this is not true in every case. A person is believed to have bought the fruit if he has already eaten them. He’s also believed to go and cut the fruit down if the owner is not present. Beis Din will not stop him even if we know the land belongs to someone else. This is the case in our Gemora. If, however, the owner is present and disputes the claim, the owner is believed. The Rashbam says if this were not the case, there would be no way to prevent people from stealing fruit.

Tosfos raises an interesting question. Our Gemora gave a case where the squatter could only give proof that he was on the land for two years. Rav Nachman therefore made him give back all the fruit which he ate during those years. Tosfos asks: Why couldn’t he keep those fruit by making use of a migo. Since he would have been believed if he said he bought the fruit, we should allow him to keep the fruit based on the claim that he bought the land!?

Tosfos answers by establishing a fundamental principle in migo. A migo is only applicable if one might make the alternative claim. In our case, however, the claimant is attempting to establish ownership on the entire property. A claim on the fruit alone would not accomplish this goal and, therefore, migo is not relevant here.

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Migu

It was stated (Bava Kamma 72): Abaye said: A zomeim witness is disqualified (for any other testimony) retroactively (from the time that he testified). Rava said: He is only disqualified from the time that he is found to be a zomeim.

The Gemora explains: Abaye said that he is disqualified retroactively, for it is at that time that he became an evildoer, for the Torah states: Do not place your hand with an evildoer to be a corrupt witness. Rava said that he is only disqualified from the time that he is found to be a zomeim, for his disqualification is itself a novelty (so why should we stretch it). This is because the two sets of witnesses are two against two, so why should we listen to the second set more than the first? Accordingly, we can only apply the disqualification novelty from the time that they become zomemin.

Tosfos asks: Why is it such a novelty that we believe the second set of witnesses over the first? They should be believed, for they have a migu that they could have disqualified the first set by testifying that the initial witnesses are thieves (“believe us when we say that they were with us, for if we would have wanted to lie, we could have said that they are thieves!”)!?

Tosfos answers that we do not apply the principle of “migu” by two witnesses, for each one of them is not aware as to what the other one is thinking.

Furthermore, it is similar to a “migu against witnesses,” where the migu is not effective, and since in this case, the first set of witnesses are testifying that they did in fact witness the event, they are clashing with the migu of the second set. In such types of cases, a migu is not effective.

The Tzlach answers that this is a migu for half a claim and that is why it is not effective. If they would have only testified that the initial witnesses were thieves, they would become disqualified, but they would not be liable to pay at all. However, if they would testify that the first set was not there at the time that they said the event took place, they would be disqualified and they would be liable to pay. Accordingly, the migu principle would not apply in this case.

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An Ignorant Person's Recognition

The Mishna (Daf Yomi: Gittin 27a) had stated: If an agent (who was bringing a get) lost the get and found it immediately, it is still valid. However, if he found it after some time, it cannot be used (for we are concerned that it fell from someone else and it is not the get which he lost). If he found the get in a chafisah or in a deluskema (types of containers), or if he recognizes the get, it is valid.

Rashi explains that if the agent himself found the get (not in a container) and he recognizes it, the get is valid.

Other Rishonim understand the Mishna to mean that the get is valid if he recognizes the container.

The Rashba writes that the get will be valid if the agent found it and claims that he recognizes it. This is true even if the agent is an ignorant person. That which the Gemora says below that an ignorant person cannot be trusted that he recognizes the get is only true when someone else found it and the agent is trying to claim it from him. There, we suspect that he is lying. However, if he himself found the get, he is trusted that he recognizes it, for he has a migu (believe me what I am saying, for if I would want to lie, I could have said a better lie); he could have said that he never lost it in the first place. (The Ritva seems to say that the ignorant person is believed even without the migu.)

The Ramban writes that it is only with respect to a lost article that we do not trust an ignorant person when he claims that he recognizes it. However, with regards to a get, which is a prohibitory matter, he is trusted. (The Magid Mishnah explains that this is because one witness is believed with respect to prohibitory matters.)

There are two glaring questions on the Ramban. Firstly, the Gemora below states explicitly that to return it to someone who claims that he recognizes it by sight, it is only to a Talmudic scholar who would be trusted, but not any ordinary person!? Secondly, a get should be regarded as a davar she’b’ervah, a matter with respect to relations, and two witnesses are required for testimony involving such matters!?

The Toras Gittin answers the first question as follows: When the Gemora states that an ordinary person will not be trusted that he recognizes the get, that is only with respect to the monetary issues of the get; however, with respect to the prohibitions stemming from the get, he will be trusted.

The Maharam Schick answers the second question: The halacha is if a father said, “I accepted a kiddushin for my daughter, but I do not know from whom,” and a fellow comes to us and says that it was him, he is believed and she is married to him. The Ran explains that although ordinarily, a davar she’b’ervah requires two witnesses, here it doesn’t, for his testimony is not in contrast with any preexisting status quo; it is merely a clarification as to whom the father accepted the kiddushin from. One person is sufficient for this. So too, here, the one witness is not testifying on the divorce; rather, he is clarifying for us as to who this get belongs to.

The Oneg Yom Tov answers this question by saying that the concern for two Yosef ben Shimon’s in the same city is only a Rabbinical one, and therefore, although it is a davar she’b’ervah, only one witness is required.

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Migu with an Impaired Document

The Mishna (Kesuvos 87a) had stated: If a woman impairs her kesuvah (she admitted that a portion of it was paid), she can only collect the remaining portion if she takes an oath that the complete kesuvah has not been paid.

The Shitah Mekubetzes cites Rabbeinu Yonah, who asks the following question: Why is it necessary for her to take an oath? Shouldn’t she be believed with a migu; “Believe me that I was only paid in part, for if I would want to lie, I could have said that I wasn’t paid at all”?

He answers: There is a principle that we do not believe someone with a migu to extract money from someone else. Secondly, we do not apply the principle of migu to exempt someone from taking an oath.

The Ketzos Hachoshen (82:10) asks: There are several Rishonim who maintain that we do apply the principle of migu to extract money in cases when a legal document is present; since her kesuvah document is intact, let us use the migu to collect the remaining portion of her kesuvah?

He answers: Since the woman admitted that the kesuvah is impaired, she will no longer be allowed to collect from encumbered properties (even from the portion that has not been collected). Only a valid document that has the ability to collect from encumbered properties can assist a migu to extract money. This document will not help her in this respect and therefore, she is compelled to take an oath.

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