For an enlarged, easier to read index click here . To "google search" this site, scroll to the bottom of this page. (This site is best viewed with "Firefox")

(Tips: F11 key enables full screen viewing & Ctrl-F to search the index)


DIVREI TORAH-----lomdus of migo

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?

MODERATOR Posted - 10 June 2002 3:30
There are two versions of Zechus Hataanah: Reb Shimon's and Reb Elchonon's.

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 in control of the item in question. Since someone 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, but Reb Elchonon says that even witnesses can have a Zechus HaTaanah. And if ZH"T means you become Muchzak, that cannot apply to witnesses, but only to a litigant.

It sounds from the way you describe your Rebbi's explanation that he was indeed talking about Reb Elchonon's ZH"T. Your Rebbi' words are basically those of Reb Elchonon.

Don’t worry that you can’t 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 anything for us in terms of what really happened here (i.e. it is not "mevarer" anything), then why in the world are we giving someone the money in question based on Miggo - we have no reason to believe that the money is his!!

There are only 2 reasons that Bais Din would give money to someone in a Din Torah: 1) We assume that the money belongs to him, and 2) The Torah says so. There is no other way in the world to win a Din Torah. Giving money to someone that we have no idea is his, without any Posuk in the Torah to tell us to do so, is simple 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"? What’s the heter to give away someone’s 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 Baranovitch, 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 that’s the case, then we have no problem, because Migoo is a Gezeiras Hakasuv, and doesn’t 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 that’s what works here.

Once we have Halachah L'Moshe Misinai, then believability can indeed fly around from claim to claim without any sevara. Just like Chazakah is not a svara but it works since we have a Posuk for it, same thing applies to Miggo.

Abcyr Posted - 24 September 2002 20:16

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 - 24 September 2002 20:24

Can’t 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 mechanism. 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 8:47

I wonder if my Rebbe takes his shuiruim from this website... :)

Adir Posted - 08 October 2003 10:17

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 10:22

Except that nowhere do any of those seforim explain that Reb Elchonon held that Miggo was Halachah L'Moshe MiSinai. That's straight 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.

Incidentally, 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 Baranovich.

I heard once from Reb Schneur 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 hata'anah."

No comments: