Commentary for Bava Metzia 11:14
לא הכא במאי עסקינן כגון דאתו לקמן כדתפיסו לה תרוייהו ואמרינן להו זילו פלוגו ונפקו והדר אתו כי תפיס לה חד מינייהו האי אמר אודויי אודי לי והאי אמר בדמי אגרתי ניהליה דאמרינן ליה עד השתא חשדת ליה בגזלן והשתא מוגרת ליה בלא סהדי
— No. Here we deal with a case where both of them came before us holding [the garment], and we said to them, 'Go and divide it.' They went out, and when they came back one of them was holding it. One said, 'He really admitted [my claim],'<span class="x" onmousemove="('comment',' 'And this is why he let me have the garment.' ');"><sup>12</sup></span>
Tosafot on Bava Metzia
You rented it to him without witnesses? Let us study the Gemara together:
Ruvain and Shimon come to Bais Din, each of them holding the same garment and each claiming it is entirely mine. The court rules that the cloak is to be divided. The litigants leave the room with the intention of dividing the garment. A few moments later they return to Bais Din. Now Ruvain is holding the garment himself. He claims that Shimon admitted to him outside that the garment was Ruvain’s. Shimon claims I never admitted that Ruvain owns the garment, but the reason Ruvain has possession is because I rented my half to Ruvain.
The Gemara tells us that the Baraisa rules in favor of Ruvain, because Shimon’s claim is very difficult to believe. A few moments ago you claimed that Ruvain was a thief, attempting to steal your garment and now you rented it to him without witnesses? That really doesn’t make sense.
Tosfos points out that although Shimon’s present claim is weak, he does however, have a migo to prove that he is telling the truth. Had he claimed that Ruvain has possession because he snatched it from me, we would believe him. If so, why not believe him when he says that he rented his half to Ruvain? Tosfos explains: [Shimon] is not believed with a migo that if he wanted he could have said [Ruvain] snatched it from me1See רמב"ם פ'ט הלכות טוען ונטען הי'ג who clearly says that we would not believe Shimon even if he claimed that Ruvain snatched it from him outside the Bais Din. Perhaps רמב"ם holds that since our Gemara obviously does not consider the possibility of a migo, it is proof that he has no migo, and would not be believed had he claimed Ruvain snatched it from him. רמב"ם does not believe that this would be the equivalent of a migo against witnesses. Perhaps he maintains that a migo against witnesses is not believed only when there are actual witnesses. In our discussion Tosfos is arguing that Shimon’s claim is the equivalent of witnesses testifying that he is not telling the truth, but there are no actual witnesses. and we would have believed him and returned half the garment to Shimon. For this is the equivalent of a migo against the testimony of witnesses. When a defendant has a migo that contradicts witnesses, we rule in favor of the testimony of witnesses. Nothing can overpower the testimony of witnesses. In this case Shimon’s counterclaim is so weak that it is as if witnesses are testifying that he is lying. His claim is so improbable that we are convinced he is lying as if witnesses had told us so. Therefore, we consider his migo as contradicting the testimony of witnesses and we rule in favor of the ‘witnesses’ who tell us Shimon is lying.
Ruvain and Shimon come to Bais Din, each of them holding the same garment and each claiming it is entirely mine. The court rules that the cloak is to be divided. The litigants leave the room with the intention of dividing the garment. A few moments later they return to Bais Din. Now Ruvain is holding the garment himself. He claims that Shimon admitted to him outside that the garment was Ruvain’s. Shimon claims I never admitted that Ruvain owns the garment, but the reason Ruvain has possession is because I rented my half to Ruvain.
The Gemara tells us that the Baraisa rules in favor of Ruvain, because Shimon’s claim is very difficult to believe. A few moments ago you claimed that Ruvain was a thief, attempting to steal your garment and now you rented it to him without witnesses? That really doesn’t make sense.
Tosfos points out that although Shimon’s present claim is weak, he does however, have a migo to prove that he is telling the truth. Had he claimed that Ruvain has possession because he snatched it from me, we would believe him. If so, why not believe him when he says that he rented his half to Ruvain? Tosfos explains: [Shimon] is not believed with a migo that if he wanted he could have said [Ruvain] snatched it from me1See רמב"ם פ'ט הלכות טוען ונטען הי'ג who clearly says that we would not believe Shimon even if he claimed that Ruvain snatched it from him outside the Bais Din. Perhaps רמב"ם holds that since our Gemara obviously does not consider the possibility of a migo, it is proof that he has no migo, and would not be believed had he claimed Ruvain snatched it from him. רמב"ם does not believe that this would be the equivalent of a migo against witnesses. Perhaps he maintains that a migo against witnesses is not believed only when there are actual witnesses. In our discussion Tosfos is arguing that Shimon’s claim is the equivalent of witnesses testifying that he is not telling the truth, but there are no actual witnesses. and we would have believed him and returned half the garment to Shimon. For this is the equivalent of a migo against the testimony of witnesses. When a defendant has a migo that contradicts witnesses, we rule in favor of the testimony of witnesses. Nothing can overpower the testimony of witnesses. In this case Shimon’s counterclaim is so weak that it is as if witnesses are testifying that he is lying. His claim is so improbable that we are convinced he is lying as if witnesses had told us so. Therefore, we consider his migo as contradicting the testimony of witnesses and we rule in favor of the ‘witnesses’ who tell us Shimon is lying.
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