[Avodah] Migo vs Chazakah

[Micha Berger]

AhS 82:18 is a qunterus on migo. Looking at #6 (within se'if 18), RYMEpstein
looks at two gemaros that discuss migo bemaqom rov -- BB 5a and Qiddushin 64.

In BB, Raza"l say that while rov adif meichazaqah, this is not true for
every chazaqah. Chezqas mamon outranks rov (you don't make someone pay
up on a "probably"), because the mi'ut yeshno ba'olam, so we can't take
something out of his hands -- maybe he is of the mi'ut.

This is true even though chezas haguf adif mechezqas mamon and
migo adif meichezqas haguf.

So chazaq

IOW:
	rov > migo
	rov > chezaqa
	chezqas haguf > chezqas mamon
So
	rov > chezqas haguf > chezqas mamon
But
	chezqas mamon > rov  -- where mi'ut yeshno be'olam, without bitul

Acharei rabim lehatos is a case of bitul, so if the majority of dayanim
rule that the nit'an has to pay up, that rov does trump chezqas mamon.


Hoserver the gemara in R' Nasan says:
    "Mah li leshaqer?" ki chazaqah dami.
    Lo asi chazaqah ve'aqrah chazaqah legamrei.

(R' Nasan shows up in two of my posts in a row!)

Migo doesn't trump chazaqah, because assuming a person wouldn't give
that particular lie is itself a chazaqah.

Which is it?


Another related issue that confuses me is what kind of chazaqah is
a chezqas mamon:

One could say it's a chazaqah demei'iqara -- preserving the status quo
of who has the money.
One could say it's a chazaqah disvara -- normally property belongs to
the person holding it.

Now, say the to'ein is tofeis the money he claims. This can at times
work, because it shifts which is hamotzi meichaveiro when they get
to BD. However, we know this is a normal case of the person holding
the money, we know how he got it. So how would my chazaqah disvara
apply? OTOH, it's not your usual case of presrving the old halachic
state, because everyone agrees that before the dispute, the property
was the nitan's.

:-)BBii!
-Micha

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