THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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KIDUSHIN 61-65 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
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
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.
2) THE STRENGTH OF A "MIGU" AGAINST A "CHAZAKAH"
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.