The “Silver of Rabbi Abba”

The following case was brought before the court of Rabbi Abba:

Plaintiff: the defendant grabbed a piece of silver from my hand; I have one witness who saw it happen!
Defendant: yes, I grabbed the silver from the plaintiff, but it belonged to me!

This is a dificult case to rule on, because we can't use the usual laws. Let me explain: According to Totah law a plaintiff must produce two witnesses in order to force the defendant to pay. If the plaintiff is only able to support his claim with the testimony of one witness, the defendant must take an oath asserting that his defensive claim is true, and he does not have to pay.

In the silver case we can’t rely on the usual ruling of forcing the defendant to take an oath to substantiate his claim, beacuse the defendant is not contradicting the witness. The defendant acknowledges the truth of the witness’s claim, he, however, claims that the silver belongs to him. (One witness can only force the defendant to sware if the defendant contradicts the witness’s testimony, in this case the defendant is not disputing the facts that the witness is testifying about.)

Rabbi Abba ruled that since the defendant can't sware, he must pay.

Rabbi abba Explaine: if the plaintiff wouldn't have one witness supporting his claim, we would belive the defendnds claim that the silver belonged to him. The reason: he could have denied that he grabbed the silver from the plaintiff, and we would believe him since he is in possession of the silver. Now that he admits to grabbeing the silver his claim that the silver belonged to him must be true.

This legal principle is called “migo” which is Aramaic for “because”. We believe the defendant “because” he could have made a better claim. If he were lying he would choose a better lie.

In the “silver” case the defendant does not have a “migo”. He does not have the option to claim the better claim denying his grabbing the silver, because a witness saw him do it. Without a "migo" we have no reason to belibve the defendant that the silver belonged to him.

The only other way we could belive the defendant would be if he swore that his claim is true. the problem is, we can't impose an oath since the defendant is not contradicting the witness.

Rabbi Abba therefore ruled, and established a precedent, that since the defendant can’t swear in his own defense he must pay. In our case he must return the silver.