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Kidushin, 64

1) THE APPLICATION OF A "MIGU"

QUESTION: The Mishnah states that the father of a Ketanah is believed to say that he married her off, and that he received her divorce for her (thus disqualifying her from marrying a Kohen). The Mishnah continues and states that he is *not* believed to say that his daughter was captured and that he redeemed her. The Gemara concludes that the reason the father is believed in the first case but not in the second case is because of the verse, "Es Biti Nasati l'Ish ha'Zeh" (Devarim 22:16), which teaches that the father is believed to testify about the marriage of his daughter, but not with regard to her captivity.

Even though the Halachah that the girl's father is believed was not stated with regard to testifying whether or not she was a Shevuyah, why, though, can we not apply the principle of "Migu" and believe the father due to "Migu?" Since the father is believed to say that he married her off, he could say that he married her off to a Pasul (that is, to a man to whom she is Asur through a Chiyuv Misah, according to the Gemara's conclusion) and thereby disqualify her from marrying a Kohen and from eating Terumah! Thus, now that he says that she was taken captive, he should be believed, for if he wanted, he could say that he married her off to a Pasul!

ANSWER: The RAN answers by establishing certain guidelines for when the Torah accepts the word of a father concerning his daughter. When the Torah says that a father's word is believed, it is clearly not referring to a man who is a sinner. Whenever the Torah teaches any Halachah, it is referring to a situation in which everything was done properly, within the bounds of the law. Likewise, the Halachah that a father is believed applies only in situations where the Kidushin that the father claims to have accepted for his daughter is *permissible*. In cases of Kidushei Isur, the Torah does not accept the father's word.

When the father says that he married off his daughter to a Pasul, he is testifying about having done something prohibited, and consequently he is not believed. Therefore, the foundation of the "Migu" does not exist, and there is no basis to believe him when he says that his daughter was taken captive.

However, even though the father is not believed to say that she was taken captive and to prohibit her from eating Terumah, he should at least be believed with regard to prohibiting her to marry a Kohen! Granted, he has no "Migu" that he could have said that he married her off to a Pasul, but he *does* have a "Migu" that he could have said he married her off to a normal man and that he then accepted her divorce on her behalf, thereby prohibiting her to marry a Kohen! We find in a number of places that "Palginan Ne'emanus" -- we may accept testimony for only part of its consequences even though we do not accept it for all of its consequences. Here, let us accept the father's testimony with regard to disqualifying her from marrying a Kohen with a "Migu" that he could have said "I married her off and then I received her divorce for her!"

The RAN offers two ways to answer this question.

1. The testimony of a witness is accepted based on a "Migu" only when his testimony will be accepted in its entirety, and not when only parts of his testimony will be accepted, or when his testimony will be accepted only with regard to certain consequences (and not all consequences).

The logic of the way "Migu" works is that if the person wanted to lie, he would have said a stronger and more believable lie. Since he did not say the "better" lie, we may assume that now he is saying the truth.

In our case, if the father would be believed when he says that his daughter was taken captive, there would be two consequences: first, she would become disqualified from marrying a Kohen, and, second, she would be prohibited from eating Terumah. If the father would say that he married her off and he received her divorce, she would only become disqualified from marrying a Kohen, but she would still be permitted to eat Terumah! Hence, when he says that she was taken captive, he cannot be believed based on the "Migu" that he could have said that he married her off and received her divorce, since that would accomplish only one of the two consequences of saying that she was taken captive, and thus the claim of the "Migu" is not a "better" lie that he would have preferred to say had he been lying, because it would not have accomplished as much as would have been accomplished had he said that she was taken captive!

2. The Halachah that a father is believed to testify about his daughter is a Chidush. Had the Torah not taught that the father is believed, there would have been no reason to believe his testimony. Normally, two witnesses are required for a "Davar she'b'Ervah," a matter involving marriage or Arayos. Moreover, there is a rule that the testimony of a Karov, a relative to the subject of the testimony, is not valid.

Since the father's trustworthiness is a Chidush altogether, we cannot stretch his trustworthiness to accept his word even in cases where there is additional reason not to believe him, where we would have to apply a "Migu" in order to accept his testimony. His trustworthiness is limited to the specific and unique cases for which the Torah establishes it.

64b

QUESTION: The Gemara explains that Rebbi and Rebbi Nasan argue about the status of "Mah Li l'Shaker," the principle that gives credence to a person's claim due to the fact that if he was lying, he would have said a better lie. In the case of our Gemara, the man claims that he has sons (and that his wife, therefore, is exempt from Yibum). The principle of "Mah Li l'Shaker" tell us to believe him, since, if he needed to lie in order to exempt his wife from Yibum, he would have said that he had given her a Get. The fact that he did not make that claim shows that he is telling the truth. However, there is a Chazakah that he had brothers and no sons; that Chazakah counters his claim. Rebbi maintains that a "Mah Li l'Shaker" has the power of witnesses, and, therefore, it is accepted over a Chazakah. Rebbi Nasan maintains that a "Mah Li l'Shaker" only has the power of a Chazakah, and, therefore, it cannot override the other Chazakah that says that he has no sons (and that his wife must do Yibum).

The Gemara in Bava Basra (5b) discusses the question of whether a "Migu" is stronger than a "Chazakah," or whether a "Chazakah" is stronger than a "Migu." It seems that this question is the subject of the Machlokes between Rebbi and Rebbi Nasan, for a "Migu" is essentially the same instrument of Ne'emanus as a "Mah Li l'Shaker." Hence, Rebbi maintains that the "Migu" is stronger than a Chazakah, and Rebbi Nasan maintains that it is not stronger than a "Chazakah." Why, then, is no mention made of this Machlokes in the Gemara in Bava Basra?

ANSWER: The RASHBA answers by differentiating between the two types of "Migu." Our Gemara is referring to the type of "Migu" of "b'Yado." That is, the man should be believed that he sons or that he has no brothers, and thus his wife will not have to do Yibum when he dies, because it is presently in his hands to give the woman a Get and to thereby free her from doing Yibum after he dies. The Gemara in Bava Basra is discussing a different type of "Migu," that of a *claim* that the person could have said. Since he could have said one claim that would have been more beneficial, but he said a different and less beneficial claim, we may assume that he is not lying (for otherwise he would have said the better claim). The second type of "Migu" is a weaker type, since the claim of his "Migu" would not have changed anything in a practical way; it merely would have been a more acceptable claim. Therefore, the "Migu" which is the subject of Machlokes between Rebbi and Rebbi Nasan is not related to the question of the Gemara in Bava Basra.