Monday, December 06, 2004
R. Michael J. Broyde, The Pursuit of Justice and Jewish Law
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What is migo? It is a common talmudic legal device that gives litigants believability when they otherwise would not have it. Since - migo - he could have lied and claimed X and been in a better position, the fact that he did not claim X means that he must be telling the truth. This never sat well with me. In a footnote to R. Michael J. Broyde's The Pursuit of Justice and Jewish Law, the author explains in contemporary legal terms how a migo works (from here, emphasis added):
Essentially, migo is a sophisti�cated pleading in the alternative, in which a defendant states that since he has a legally provable defense that would allow him to triumph in court if he wished to disregard the ethical obligation of justice, that false defense, coupled with defendant?s sincere claim that he has a truthful defense (that he cannot prove) is sufficient in Jewish law to allow the defendant to triumph. (For example, if "A" borrowed $100 from "B" without any loan documentation and repaid the loan in the same way, then when "B" sues "A" for payment of the loan, "A" would claim that he already paid the loan. The court should believe him on that unprovable claim, because he has a very strong migo claim-that he never borrowed the money-which, if he were to assert, would allow him to prevail.)I found this explanation very helpful. If it were not for migo, Jewish law would inadvertently encourage lying and even reward it. Migo, at least of this type (there is another type), forestalls this possibility and protects the integrity of the legal system by rewarding honesty.
It is important to realize (and this is commonly overlooked) that in order for a migo claim to be valid, the false claim must be one that the defendant would triumph with if the case and the false defense were actually litigated in court. If the migo claim can be defeated by the plaintiff through the presentation of evidence, then it is of no value. Jewish law essentially rewards the defendant for his honesty in labeling his provable defense as false, by allowing him to press it anyway. The common law tradition in that case simply encouraged perjury...
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