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|MODERATOR||Posted - 05 September 2002 22:19
Lamdan Wannabe Posted - 10 June 2002 3:08
Mod, what does "miggo zechus hataanah mean"? My Rebbi tells me that the believability goes from one taanah to the next just because it's there. I have no idea what this means, and I can't seem to get the explanation into my head. Can you help?
Reb Shimon (Bava Metziah #5) says that whoever has a Miggo becomes muchzak on the item in question. This is simply because muchzak means whoever is more incontrol of the item in question. Since someon has a miggos, it means that if he merely says the right words - makes the right claim - the item becomes his. He kinda has it "in the palm of his hand", as it were. Therefore, he becomes muchzak.
But this cannot be what Reb Elchonon (Kovetz Shiurim II:3,4) means. Not only is this clear from his words, bu Reb Elchonon says that even witnbesses can have a Zechus HaTaanah. And if ZH"T means you become Muchzak, that cannto apply to witnesses, but only to a litigant.
It sounds from the way you describe your Rebbis explanation that he was indeed talking about Reb Elchonon's ZH"T. Your Rebbi' words are basically those of Reb Elchonon.
Dont worry that you cant get it into your head - at the surface, it indeed makes no sense. You are right - why should believability fly from one claim to the next? In a nutshell, the problem with ZH"T is this:
If it does not clarify anythign for us in terms of what really happened here (i.e. it is not "mevarer" anything), then why in the wolrd are we giving someone the money in question based on Miggo - we have no reason to believe that the money is his!!
There is only 2 reasons that Bsi Din would give money to someone in a Din Torah: 1) We assume that the money belongs ot him, and 2) The Torah says so. There is no other way in the world to win a Din Torah. Giving money to someon that we have no idea is his, withotuany Posuk in the Torah to tell us to do so, is ismple Gezeilah.
So how can a person win with Miggo?
The problem is, Miggo, to Reb ELchonon, is NOT a Mevarer, nor is there any Posuk to learn out Miggo. So what's left? Some "zechus"? Whats the heter to give away someones money to someone else because of some "zechus"???
Reb Elchonon himself (KS Bava Basra 153) says that AIn Odom Pereyah Btoch Zemano must be either a mevarer or a posuk - there is no third alternative.
Yet Miggo is neither.
I heard in the name of Rav Elya Yirkanski shlita, Rosh Yeshiva in Mir, Brooklyn, who was a student of Reb Elchonon in Baramovitch, that the students there indeed asked this to Reb Elchonon - that the whole idea makes no apparent sense. Reb Elchonon supposedly answered that if Miggo is a Zechus Hataanah, it must be a Halachah L'Moshe Misinai!
If thats the case, then we have no problem, because Migoo is a Gezeiras Hakasuv, and doesnt have to make sense.
Reb Elchonon was not the first one to say this. The Bais Yaakov in Kesuvos does indeed say that Miggo may be a Halachah L'Moshe Misinai.
I once asked Rav Elya Yirkonsly to confirm this. Unfortunately, he told me that his memory is not what it used to be, and he cannot confirm nor deny the story. It could be, he said, or could be not.
I will assume, then, that the person who told me he heard this from him years ago was correct.
But in any case, the Bais Yaakov does say Miggo can be Halachah L'Moshe Misinai, and thats what works here.
Once we have Halachah L'Moshe Misinai, then believeabilitoy can indeed fly around from claim to claim without any sevara. Just like Chazakah is not a svara but it worls since we have a Posuk for it, same thing applies to Miggo.
|Abcyr||Posted - 25 September 2002 1:16
Why does it have to be a halocha le'moshe misinai; why not derabonon? Can't beis din mafkir people's property? If Rabonon made an omeid hadas (based upon their analysis of average psychology) that such types of claims are mostly true, they can make a d'rabonon to take away money from one and give to another.
This can be similar to the phenomenon of gilgul shvuah.
Or am I wrong?
|MODERATOR||Posted - 25 September 2002 1:24
Cant be. Miggo works even when there is no psychological Umdenah, such as when the litigants do not even know they could have entered a better claim (like Nichsei Yesomim). The whole idea of Zechus Hataaneh was created in order to explain how Miggo can work even when there is no logic to it. The Rabbonim have no reason to create such a mechanis. It makes no sense. The only possibility is a Gezeiras Hakasuv, and in the absence of any posuk to derive Miggo, it can only be Halachah L'moshe misinai.
|Rachack||Posted - 01 October 2003 13:47
I wonder if my Rebbe takes his shuiruim from this website... :)
|Adir||Posted - 08 October 2003 15:17
Miggo zh"t or muchzakos is very famous raid: those same Reb Shmuels and Reb Elchonons, respectively are brought down whenever in Shas there is a miggo sugya, so chances are your Rebbe didn't get in from this website. ;)
|MODERATOR||Posted - 08 October 2003 15:22
Except that nowhere do any of those seforim explain that Reb Elchonon held that Miggo was Halachah L'Moshe MiSinai. That's stright mipi hashemuah, from a Talmid of Reb Elchonon. It's really ikar choser min hasefer, but without it, Zechus Hattanah - Reb Elchonon's version at lest - has no pshat.
Incidently, when Reb Elchonon was mechadesh this yesod, it was considered an extremely great chidush in the Yeshivos. And it was pretty much the exclusive trademark of Branovich. I heard once from Reb Schenur Kotler ZTL, who learned in Kaminetz by Reb Boruch Ber ZTL, that when the student from Baranovitch came to Kaminetz (Baranovitz had younger students, kind of like a High School; Kaminetz was for older students), "all they used to speak about all day was zechus hattanah."
|AJewishJew||Posted - 17 April 2008 17:22
B'Chol Kavod to R' ELchonon, if he actually said that Migu was a halacha l'Moshe MiSinai, he would have to be mechadesh a whole new chapter in history. Why isn't it possible to attribute the makkor to the gemara Kesubos 18, when the gemara learns out the makor of peh she'assur. A peh she'assur may just be a quantitatively better migu, since it can involve silence?
(As to the problem of the "lama li kra svara" on peh she'assur, note the Rashi (I believe in B'K) still quotes the makor for Hamotzi MeChaveiro Alav Harayah as MiBa'al Devarim Yigash, after a similar rejection over there.
|MODERATOR||Posted - 17 April 2008 17:26
first, the sefer kesef nivchar says that - that the source for migo is peh sheasar. the problem with that is, sinec peh sheasars are less of a chidush than miggo - since nobody would forget to be silent - ain lecho bo ele chidusho would say that the posuk cannot tell you migo. that is true certinaly if you are goign to say that migo is a gezeiras hakasuv that makes no sense al pi svara (which is the case with zechus hatannah). since that is so, you certianly cannot leanr it out from a place that is less of a chidush.
reb elchonon is not being mechadesh a new part of history - he is merely explaining the history that we already know exists - namely, we have a din that is not a svara and also has no posuk to learn it out of.
|FlippedOutFish||Posted - 22 September 2008 2:13
I dont understand the pshat of the kesef nivchar that the source for miggo is hapeh sheissar.Forget about being a lesser chiddush than miggo but ask that according to all the Rishonim the idea is disproven.First off Rashi in Kesubos 18b and throughout the perek Haisha shenisarmila holds that happeh sheassur is a seperate new din from Miggo in that since a person is the only source of information regarding a matter at hand(ie. a person states this field that i own originally was youre father's but i bought it from him) so therefore we say that just as we believed him about the issur or chiyuv(that the field was youre fathers [so i would owe it to u]) so to we must believe him about his qualification (that he bought the field) and so Rashi learns that this is not Miggo which is when a person has the oppurtunity to make a strong claim but instead made a weak claim the weak claim is believed since if he is actually lying he would of made the stronger claim.According to Rashi Miggo would be effective only at the moment when the admission of his chiyuv is made only then would there be a Miggo but Happeh sheissur would give a person the right to mmodify his admission even at a later time. From Tosfos in Kesubos throughout perek Haisha shenisarmila on 18b and also on 19b i think, one would not be able to say the source for Miggo is happeh sheissur since Tos. learns that Hapeh shissar as a form of Miggo in that a person could have refrained from making his original admission,therefore we believe him now when he qaulifies his admission.So even according to Tosfos the source for miggo can not be happeh sheissar because Tosfos learns happeh sheissur from Miggo itself as only one type of it (which would also be the lesser chiddush).Furthermore, the Ramban and the Reah on 19b i believe, ask on a case in the Mishna there that holds "ein neamanim-we do not believe them that granted the witnesses do not have the power of happeh sheissar so they are not believed but let them be believed because of the din of Miggo? They answer by distinguishing between Miggo to Happeh sheissar that Miggo can be used to bolster the claim of a litigant because he is making a weaker claim from a stronger one however the testimony of witnesses must stand on its own and thus a statement that relies upon miggo is not in the category of "eidut"=testimony.But happeh sheissur may be applied when witnesses are the sole source of information which makes them have the power of happeh sheissar and their entire statement is considered as "eidut"=testimony which would dictate that part of their testimony can not be accepted without its entirety statement.So in the case of the Gemara is only whether the witnesses have the power of happeh sheissur but miggo is irrelevant.
It emerges though from all the interpretations in the Rishonim that the source of miggo can not be learned out from happeh sheissur so i dont understand the Mods qoute of the kesef nivchar ? And this would answer Ajewishjew's question too?
|MODERATOR||Posted - 22 September 2008 2:20
All the kesef nivchar is saying is that from peh sheasar we see that we assume a person is telling the truth if he has no reason to lie. Without that sevora, peh sheasar wont work, because the only reason we allow the person to adjust his statement is because he has no reason to lie when doing is. If we could establish a reason he has to lie, then he would have no peh sheasar. That being the case, the kesef nivchar is saying, then miggo also works - since the person with the miggo has no reason to lie.
I also want to correct my post of October 8,2003, which has an error. The statement I quoted in the name of Rav Schneur Kotler was not regarding the bochurim that came form Baranovich to Kaminetz but ratehr from Baranovich to Kletzk - Rav Schenue said those bochurim who came from Baranovich to Kletzk all they would talk about for the first 2 years they were there, was zechus hattaneh.
|yaavetz||Posted - 20 November 2008 2:49
The way I remember my rebbe explaining R' Elchonon is that miggo has to be one of two logics. Either it could be a "coach hataanah", meaning that his unsaid claim gives his current claim "ne'emonus". Or it could be a "rayah", meaning that since if he was lying, he would have said the better claim, that proves that his current claim is true.
So your example of the guy who didn't know that the better claim would relieve his liability, that would be miggo as "coach hataanah" since the fact that there existed a better claim, that gives reliability to his current claim, even though the fact that he didn't say the better claim doesn't prove anything.
However, in a case, let's say, where we know that this guy thinks there is a better claim A, and instead he says claim B, which he thinks is inferior. But in reality, claim A is no better than claim B. In this case, he would still have a miggo from the logic of "rayah", since the fact that he said claim B, and not claim a which he thought was better (even though in reality it is not better, and therefore can't give "coach hataanah" to claim b), that proves that he's telling the truth.
I think this was how it was explained to me.
|MODERATOR||Posted - 20 November 2008 3:02
no, that explanation does not work. because - please see the first post in this thread -why should ne'emanus fly from one taaneh to another? it makes no sense. oyu have a guy in bais din who makes a claim. he could have said a better claim, but he doesnt. this means that he is admitting that his better claim is not true. in all cases of miggo, the fact that he didnt claim the better claim means there's hodaas bal din that the better claim is sheker. now oyu have a guy screaming that the better claim is sheker and he doesnt want to claim it, and yet he wins because he could have said the lie?!
no way. thats not a svara at all. either theres a posuk to tell us this (or halachah lmoshe misinai) or it doesnt work.
if we accept that its halachha lmoshe misinai, then zechus hataanah can work because its a gezeiras hakasuv, but there is no svara that says such a thing
|yaavetz||Posted - 28 November 2008 10:31
True, moderator, that the mekor for miggo as "coach hataanah" is halachah lemoshe misinai. Because, as you said, there is no svarah that a clearly untrue claim should make us believe another.
However, miggo, when used as a rayah, (just to say that because he did not say the better claim, and therefore it is clearly untrue, this proves that the claim he is saying is true,) is indeed a svarah, because it does make sense. Ne'emonus is not flying from one claim to another, rather this proof establishes ne'emonus in his said claim on its own.
Therefore in a normal case, I do not need the hlmm"s of "koach hataanah" because I already have the svarah. However, I do need this hlmm"s where the rayah does not suffice, and therefore there is no svarah. In such a case, there is also miggo.
Because of this, as I said, there are two sides to miggo. One is a gezairas hakosuv, like you said, while the other is purely svarah.
|MODERATOR||Posted - 28 November 2008 11:11
That is correct.
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