Responsa for Bava Batra 59:5
ההוא דאמר ליה לחבריה מאי בעית בהאי ביתא א"ל מינך זבנתיה ואכלתיה שני חזקה אמר ליה בשוקי בראי הואי אמר ליה והא אית לי סהדי דכל שתא הוה אתית תלתין יומי א"ל תלתין יומי בשוקאי הוה טרידנא אמר רבא עביד איניש דכל תלתין יומי טריד בשוקא
in which case should we not say to him: 'Prove your document to be valid and you can remain in ownership of the property'?<span class="x" onmousemove="('comment',' So here we can say to him, 'Prove that you have had unchallenged occupation'. Thus in both cases R. Nahman requires the party in possession to prove his right. ');"><sup>5</sup></span>
Teshuvot Maharam
Q. When A demanded of B the return of the money he had given him, B repaid part of it and provided A with a surety for the rest. The fact that B provided A with a surety is attested to by witnesses. Now, however, B claims that this money was originally given to him by A not as a loan but as an outright gift, that consequently he owes nothing to A, and that when he provided A with a surety he acted "inside the line of justice."
A. The testimony of the witnesses to the effect that B provided A with a surety, is convincing proof that A had given the money to B as a loan. Although a person will sometimes buy what by law belongs to him in order to avoid litigation, this principle applies only when the rightful owner is not in possession of the disputed property, while in our case B was in possession of the money. Moreover, even if there were no such witnesses, we would have put no credence in B's assertion that he provided A with a surety only because he acted "inside the line of justice." For the principle of Miggo — that we ought to believe B's present statement since, were he inclined to lie, he could have denied altogether having provided A with a surety — does not apply to this case, since we are thoroughly convinced that had B not owed the money to A, he would not have repaid part of it.
SOURCES: Cr. 166; Am II, 164.
A. The testimony of the witnesses to the effect that B provided A with a surety, is convincing proof that A had given the money to B as a loan. Although a person will sometimes buy what by law belongs to him in order to avoid litigation, this principle applies only when the rightful owner is not in possession of the disputed property, while in our case B was in possession of the money. Moreover, even if there were no such witnesses, we would have put no credence in B's assertion that he provided A with a surety only because he acted "inside the line of justice." For the principle of Miggo — that we ought to believe B's present statement since, were he inclined to lie, he could have denied altogether having provided A with a surety — does not apply to this case, since we are thoroughly convinced that had B not owed the money to A, he would not have repaid part of it.
SOURCES: Cr. 166; Am II, 164.
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