As we continue to discuss what does and doesn’t constitute a legitimate claim to land, today’s daf relays the following dispute:
There was a certain person who said to another: What do you want with this land of mine?
The possessor said to him: I purchased it from you, and this is the bill of sale.
The first said to him in response: It is a forged bill of sale.
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The possessor leaned over and whispered to Rabba: Yes, it is a forged bill. But I had a proper bill of sale and it was lost, and I said to myself: I will hold this bill of sale in my possession, such as it is.
One person is currently in physical possession of the property, and another has proof that the property was previously theirs. The possessor is insisting that they purchased the property from the previous owner, but the document they’ve proffered is a forgery. Although it’s a forgery, the possessor promises Rabba that there once was a legitimate bill of sale. Rabba gives what, at first glance, may seem like a surprising ruling:
Rabba said: Why would he lie and state this claim? If he wants to lie, he can say to him that it is a proper bill of sale.
Even with only a forged bill of sale, Rabba believes the land should remain in the hands of the possessor. His rationale is one that appears in several places throughout Gemara and which we sometimes translate as why-would-I-lie. This concept is often referred to in halakhic literature by the shorthand migo, or “from that,” which expresses the sentiment: From the fact that this person could have made a more advantageous claim and did not, we believe them. The logic of migo relies on the notion that people will usually make the most advantageous claim possible so if there’s a better claim someone could have made, we assume their less advantageous claim is actually the truth.
In this case, the possessor could have simply contested the claim that the document was forged and had both chazakah (presumption of ownership) and the document on his side. But he admitted the document was forged, weakening his own case, so Rabba argues that we should believe him.
Rav Yosef disagrees:
Rav Yosef said to Rabba: On what are you relying to award him the land? On this bill of sale? This admittedly forged bill is merely a worthless shard, and cannot be used in court as evidence.
Rav Yosef finds the migo argument insufficient. Ultimately, all the possessor has in hand is an admittedly forged document, which can’t be used in court to verify his claim.
The Gemara goes on to relate a similar incident involving a monetary claim. In this case, a person tries to collect a debt of 100 dinars with a forged promissory note. Again, they come to Rabba, and again the would-be collector admits the promissory note is forged, but claims there once was a real one that has since been lost. Again, Rabba rules in favor of the person with the forged document, because the claimant could have simply asserted the promissory note was legitimate. And, again, Rav Yosef maintains his position that, in the absence of an actual legitimate document that could be used in court, we don’t award the claimant this money.
In determining how we ultimately rule, the Gemara distinguishes between these two cases, siding in the first with Rabba and in the second with Rav Yosef. Here’s why:
Rav Idi bar Avin said: The halakhah is in accordance with the opinion of Rabba with regard to land, and the halakhah is in accordance with the opinion of Rav Yosef with regard to money. The halakhah is in accordance with the opinion of Rabba with regard to land, as the court rules that the land should remain where it is (i.e., with the possessor). And the halakhah is in accordance with the opinion of Rav Yosef with regard to money, as the court rules that the money should remain where it is (i.e., in the possession of the purported debtor).
Rav Idi bar Avin suggests that in neither scenario should we extract property from its current holder. The logic of migo is sufficient to maintain land in the hand of its current possessor who admitted to the falsified document, but it’s insufficient for the monetary claimant to successfully extract money without legitimate documentation. This is a metric that appears throughout this order of the Talmud (Nezikin): In general, we default to maintaining property in the hands of its current physical owner, unless someone else can bring definitive proof contesting that ownership. We would rather risk failing to extract property from someone lacking lawful ownership than incorrectly extracting property from its lawful owner.
Read all of Bava Batra 32 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 27, 2024. If you are interested in receiving the newsletter, sign up here.
