Resources for Kesubos 87

1.     The גמרא says that when a person is not paid back they remember that, but if they are paid back partially then they don’t necessarily remember how much they were paid. תוספות in ד"ה דמיפרע asks why the lady demanding her כתובה doesn’t have a מיגו that says “believe me when I say I was only paid $100 since if I was a liar I would have said I was paid zero!”? He answers that מיגו only makes sense where we think she is lying. However, in this case we think she simply forgot. In that case מיגו won’t help since it doesn’t prove she is correct. There is a famous piece in קובץ שיעורים in חלק ב׳ סימן ג about how מיגו works. One possibility is that מיגו works as a אנן סהדי that the person must be telling the truth since if they were liars they would have said the better claim. The other way מיגו may work is a כח הטענה. That means that you are simply win the case because you have the power of the טענה you could have said. There are many נפקא מינהs between these two possibilities. For example, תוספות earlier in כתובות on דף כ"ג ע"ב ד"ה שתי נשים  said that if there are witnesses that a woman was a שבויה but she doesn’t know that there were witnesses and she says I was נשבית but I am טהורה we don’t believe her. This is despite that fact that if not for the witnesses she would have had a מיגו that she could have said I wasn’t captured at all. רב אלחנן זצ"ל points out that, as mentioned, she didn’t know there were witnesses. If so, she should still have a מיגו because if she was a liar she would have said the better claim! In other words, if מיגו is all about believability then she should be believed here too. Rather this is a proof to the concept that מיגו just means you have the power of the טענה that you were entitled to say and in this case that טענה would not have helped her since there were witnesses. He says that which way מיגו is a מחלוקת ראשונים brought in various places in ש"ס. While I did not see him or anyone else quote our תוספות, our תוספות would seem to agree with the שיטה that מיגו is just an אנן סהדי so it won’t help if we think she is confused, but if תוספות held it was a זכות הטענה then לכאורה a מיגו would help even in a case where she may have been confused since the point is she has the power of the claim she could have said.

2.     There is another point that רב אלחנן זצ"ל makes in that piece that is relevant to our גמרא. The ראשונים say that a מיגו דהעזה can help לאיפטורי מממון but not לאיפטורי משבועה. That means that a מיגו where saying the other טענה requires חוצפּא is a weak מיגו and only helps to get you out of paying but doesn’t get you our of taking a שבועה. רב אלחנן זצ"ל asks what’s the explanation of this חילוק? He explains that מיגו when it comes to money is just a כח הטענה. Therefore, since she had a right to claim something he gets the benefits of that claim. However, the whole point of שבועה is בירור האמת, and that requires a מיגו that is a מה לי לשקר. תוספות as mentioned above asked why there is no מיגו by a פּוגמת and says because אנן סהדי doesn’t make sense here since we think she just doesn’t remember. The ריטב"א answered this question by saying that claiming she was paid nothing requires a העזה. That makes this a מיגו דהעזה and we don’t say a מיגו דהעזה to get you out of a שבועה. תוספות as mentioned above sounds like he holds מיגו is a כח נאמנות. The ריטב"א may hold it is a כח הטענה and that why he had to come on to the answer of מיגו דהעזה.

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