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Migu or miggo (translation: "since") (Hebrew: מיגו) is a Talmudic law concept relating to civil law disputes. A migu is a reason that a claim that would otherwise be rejected by a Jewish civil court should be accepted based on the fact that the litigant could have prevailed in the case based on a different claim were he disposed to lie. To be effective, the logic underlying the migu must be impeccable and there are a variety of cases in which the Migu argument is invalid.
Example of an effective Migu
One classic example of where a Migu does work is in the area of a loan repayment dispute. Where the lender accuses an alleged borrower of defaulting on an oral loan made without witnesses, the borrower may prevail in the case by claiming that the loan did occur, but that it had already been repaid. Normally, when one makes a claim that a loan has been repaid, he would be expected to produce evidence that it had been repaid, such as a receipt. However, in this scenario the borrower would prevail under the theory that he must be telling the truth, as if he were interested in lying to the court, he could have simply said that the loan never happened. Since the lender cannot prove the existence of the loan, that claim would have prevailed. Therefore, the claim that the loan was repaid is believed as well. This is a classic Migu, although many cases of Migu exist to support a position in court.
Other cases in which Migu is invoked are cases in which witnesses might have a personal gain in testifying, which would normally disqualify the testimony. If another option can be found for the witnesses to achieve the same personal gain, some authorities rule that the testimony can be accepted.
Exceptions to the rule
There are exceptions to the rule of Migu, perhaps the most common one is known as "Migu in the place of witnesses" (Hebrew מיגו במקום עדים). This takes on two meanings. The first is that in a case in which the claimant has irrefutable proof - such as valid witnesses - supporting his claim, the litigant cannot use Migu as a defense. The reasoning is that the witnesses are "stronger" than the Migu. (This means that in the order of acceptance of proofs and logic the court of law will rule based on the stronger proof/logic.) A second meaning to "Migu in the place of witnesses" is similar yet very different from the first. That is, when witnesses support the alternative claim, thereby destroying the litigant's position, as the litigant can no longer claim that if he was looking to win dishonestly he/she would have claimed the alternative. Because the alternative is no longer possible. This exception is true even if the witnesses bear testimony after the litigant made his/her claim. (see Rabbi Busel On Migu)
Another exception would be if the proposed alternative claim is considered to be an embarrassment to the defendant. Cases that would qualify are, if the story being told is embarrassing by its very nature, it is a highly unlikely story and a person would not be so brazen as to make the alternative claim (Hebrew, מיגו דהעזה לא אמרינן) or it is well known that the particular proposed fact is untrue, even if the claimant can't prove it. The logic behind this exception is elementary. The Migu lends credibility to the defendant by asking the question: "if he is lying in an effort to exempt himself from paying his dues, he should have told more believable lie". If the court can find a probable reason why he would avoid telling the harder-to-disprove story, then the entire logic falls apart.
A third rule in the non acception of Migu's is that "a Migu to extract is not said" (Hebrew מיגו להוציא לא אמרינן). This means that the logic of Migu will not be excepted on the claimants side. ("Why did he claim that the item used to belong to the possessing party and that he had bought it from him, he could have said that the item never belonged to the possessing party?"). The predominant reason for this is that the burden of proof is on the claimant (Hebrew המוציא מחבירו עליו הראיה) and therefore even though a defendant can avoid payment using the Migu as a defense, it is not sufficient proof for the claimant. Another point is that this would open endless opportunities for con men (Many Jewish laws are designed to make con games more difficult)This is the opinion of the Tosafists.The Ramban among other Rishonim disagree with this rule and contend that it is a valid reasoning. Some explain that the root of the question lays in understanding Migu's properties as a tool in court. The Tosafists felt that a Migu is a leverage tool (Hebrew, כח הטענה), meaning that if a person chose to make a less favorable claim over a more favorable one, he is given the benefit of the doubt, although he is not necessarily believed based on his Migu, therefore his Migu can only deflect charges but not charge others. The Ramban on the other hand felt that Migu provides proof of the legitimacy of the claim, it can therefore be used as an attack tool.
Rabbi Busel on Migu
According to Rabbi Betzalel Busel there exists a fourth exception to the rule of Migu, and that is a stipulation that the potential claim be an alternative to the current claim and not an additional claim. ("I could have said something else instead", not "I could have added another point".) The reasoning given is a bit difficult to understand, and that is that avoiding adding a claim gives the claimant credence, whereas giving an alternative claim gives the claim itself credence, and for a Migu to be effective it must be a boost for the claim and not for the person. (There is no rule to believe a more trustworthy person over a less trustworthy one, even though there is reason to believe one over the other.) This goes against the ruling of many leading commentators.
Rabbi Busel gave a rule of thumb in regards to Migu: No Migu can accomplish more than the alternative claim on which the Migu is based. The logic is that it would be unseemly to base the value of a claim on an alternative one and thereby give the actual claim greater power than the alternative. Also in most cases the greater power that the Migu has would be a logical reason for a dishonest litigant to make the Migu claim, which would in effect disqualify the Migu itself. (In most cases the Migu claim is in place of a claim that would be effective without a Migu, which is generally favored over a claim that requires a Migu to uphold it. In addition, a Migu is not completely believed; it is no more that a law that the Migu claim must be accepted by the court.) This explains why witnesses who come after the Migu claim is invoked and accepted, disqualify the Migu, even though the logic still exists (the litigant had no idea that the witnesses would come, and still he chose to use the weaker claim), because since the alternate claim would have been rejected at this point, the Migu may no longer operate.
Rabbi Busel made a general point, that to disqualify a Migu, any gain that can be found that is achieved by making the current claim will suffice to disqualify the Migu. This includes a gain that most people would not lie for, which means that even a gain that would not create doubt about a claim would disqualify the Migu.
- Tosafis to Talmud, Baba metzia 2b
- Tosafis to Talmud, Bava Basra 33b
- Shaar Mishpat
- Ramban to Baba Basra 30a
- Rashba ibid.
- Chidushi Harim
- Rabbi Akivah Eiger to Baba Basra 31a