Sa’if 13, Mechaber: The plaintiff claims the defendant snatched an item of property from him. He produces a witness who testifies he saw the item being snatched. The defendant admits he snatched the item but responds that he snatched it because the plaintiff had previously stolen it from him. The defendant is in the category of one who is obliged by the Torah to swear but is unable to do so. Therefore the defendant must return the object or pay its value.
Ner Eyal: The case described here is the famous case of Nascha DeRabi Abba. In that case, the defendant snatched a gold bar from the plaintiff. The case came before Rabbi Ami within the earshot of Rabbi Abba, who was sitting nearby. The plaintiff brought one witness who testified he saw the defendant snatch the gold bar from the plaintiff. The defendant admitted he snatched the gold bar from the plaintiff. He said, however, that he had a right to snatch it because the plaintiff had previously stolen it from him.
Rav Ami considered several potential resolutions to this case and dismissed them all.
The first possible resolution would be to make the defendant pay for the gold bar. But this resolution is unacceptable because only two witnesses can oblige a defendant to pay. Here, there was only one witness. Furthermore, the defendant’s response, that he snatched what was rightfully his, is supported by a migo. A migo, also referred to in halachic terminology as “ma li leshaker,” means that a court believes the statement of a litigant in his own defense to be true in a situation where, if he were lying, he could have come up with a better defense.
In this case, if the defendant had wanted to lie, he could have – instead of admitting he snatched it and explaining that it was stolen from him – simply denied that he snatched it altogether. Therefore we have to believe him when he says he snatched what originally belonged to him.
The second possible resolution would be to rule in the defendant’s favor and exempt him from paying for the bar of gold or returning it. But this resolution too is unacceptable because, after all, one witness saw him snatch the gold bar. The law is that a defendant who contradicts the testimony of one witness must swear a Torah oath that the witness is lying.
The third possible resolution is for the defendant to swear the Torah oath contradicting the witness. But he cannot do this because he has already admitted that the witness’s testimony is correct. He did snatch the gold bar. The only oath he could possibly swear would be that the gold bar was originally his. But no such oath is available at law and the judges cannot invent an oath for the sake of this defendant. Accordingly, Rav Ami could find no satisfactory resolution to this situation.
Rav Abba, however, suggested the following solution: This is a case of a litigant who is obliged to take an oath but is unable to do so. The rule is that one who is obliged by the Torah to swear but is unable to do so must pay.
Rama: Some are of the opinion that this is the result only where the witness does not testify that the defendant snatched the gold bar as a pledge for the repayment of a loan. But if the witness testifies the item was snatched as security for a loan the defendant had made to the plaintiff, but cannot testify how much the loan was, the defendant who snatched it may swear how much the loan was and retain the snatched item. Such a defendant is not in the category of one who is obliged by the Torah to swear but is unable to do so and therefore must pay, because the defendant has a legal right to retain the item as a pledge. Others, however, such as the Ramban in Siman 84 of his reponsa, disagree.
Ner Eyal: The rabbis permit a lender who is in the possession of a pledged item to swear that the amount of the loan is not less than the value of the pledge. They permit this on the basis that lender has a migo in his favor. If he wanted to lie, he could have invented a better defense. He could have said the item in his possession was not pledged to him by the borrower as security for the loan but was purchased by him from the borrower. Or the lender could claim he had already returned the pledged item to the borrower and this item in his possession was not the pledged item.
In the case mentioned here by the Rama, however, the lender cannot make either claim. He cannot claim he purchased the item, because one witness testified the item was pledged to the lender as security for a loan. The lender would not have the audacity to deny this. Neither can the lender claim he returned the pledge, because he admits he snatched it and it is still in his possession. Nevertheless, even though the lender does not have the benefit of a migo, according to the first opinion brought by the Rama he is still permitted to swear that the loan is not less than the value of the pledge. This is because he is not contradicting the witness. The witness only testifies that the item was pledged as a loan, he does not testify to the amount of the loan.
The case of the pledge mentioned by the Rema is not similar to the case in which a defendant responds to a claim by saying he repaid the loan but is then confronted by a witness who testifies that the defendant did not repay the loan. In that case, the law is that the defendant is in the category of one who is obliged by the Torah to swear but is unable to do so.
The case of the pledge mentioned by the Rema is different because the witness testifies that the lender is holding the item as a pledge and has a right to do so.