Sa’if 10, Mechaber: If a husband and wife borrowed money from a lender, the wife is responsible for half of the loan. This can be collected from the money payable to her under her ketubah. If the husband or the heirs of the husband repaid the entire amount of the loan, they may recover one half of the loan from her. If the husband is alive, she cannot refuse to reimburse him for half of the loan by contending that she merely co-signed the note at his request but did not, in fact, receive any of the money. The court, however, will believe her that she is telling the truth when she says she received none of the money and rule in her favor, if, under the circumstances, she has a migo that she already repaid her husband.
Ner Eyal: We have seen that the husband and wife who borrow from one lender are treated at law exactly like co-borrowers discussed in Sa’if 1. Each is deemed an arev, a guarantor for the obligations of the other. Accordingly, if the wife has no assets, the lender may collect the entire amount of the loan from the husband in his capacity as guarantor. If the wife has property separately owned from her husband, the husband or his heirs will then have the right to sue the wife as co-borrower for reimbursement of the money they repaid on her behalf. If she has spent her separately owned money, they may deduct this amount from her ketubah money when she becomes entitled to it.
The woman’s defense to the husband’s claim for reimbursement that she merely co-signed the note at his request but did not, in fact, receive any of the borrowed money, will be rejected unless she has a migo. A migo, also referred to in halachic terminology as ma li leshaker, means that the court believes the statement of a litigant in his or her own defense to be true in a situation where, if he or she were lying, he or she could have come up with a better defense.
In this case, the court should believe the wife when she says she merely co-signed the note at her husband’s request but did not, in fact, receive any of the borrowed money because she has a migo in her favor. If the wife was indeed lying, she could have come up with a better lie. Instead of denying that she received any part of the loan, she could have said she had already repaid her husband. Such an alternative defense itself would, in turn, be believed on the basis of a further migo. The court would have believed her if she had said she had already repaid her husband, because if she wanted to lie she could have come up with an even better defense. She could have claimed that she, herself, had already repaid her half of the loan directly to the lender.
Why, she could have argued, should the court believe her husband when he says he repaid the whole loan to the lender? Why should the court not believe her instead when she says she repaid her half directly to the lender? Just because her husband is holding the promissory note is no proof that she did not repay the lender directly. After all, there is only one promissory note covering the whole amount of the loan owed by the husband and wife. They can’t both be holding it; only one of them can.
Such a defense that she repaid the lender directly would, however, only be possible if the husband had no proof that he in fact paid off the entire loan. If, however, there is written proof that the husband repaid the entire loan, this defense of the wife would be rejected. Such would be the case if the husband produced a receipt signed by the lender acknowledging that he received full repayment of the entire loan from the husband, not from the wife. In that situation, the wife’s argument that the court must believe her when she says she repaid her husband based on a further migo that she could have said that she repaid her half directly to the lender, is no longer tenable. It is refuted by the receipt signed by the lender who acknowledges payment of the loan in full from the husband, not from the wife.
Confronted by such a receipt, the wife could not have claimed she repaid half of the loan directly to the lender. Therefore, she has no migo to support her when she says she repaid her husband. In turn, she is not believed when she says she merely co-signed the note at her husband’s request but did not, in fact, receive any of the money.