Rabbi Meir Orlean
Mr. Mandel had lent Mr. Lewin $5,000, documented with a proper loan document. A year later, he approached Mr. Lewin with the document and demanded payment.
"I repaid you $5,000 three months ago," Mr. Lewin said. "Don't you remember?"
"That money was for a former loan," replied Mr. Mandel. "The loan connected with this document remains outstanding."
"What are you talking about?" asked Mr. Lewin. "I borrowed only once, and repaid you."
"No, I lent you twice," insisted Mr. Mandel. "That's why I am still holding this document."
"I refuse to pay," said Mr. Lewin adamantly.
Mr. Mandel sued Mr. Lewin before Rabbi Dayan's beis din.
"Mr. Lewin owes me $5,000," Mr. Mandel claimed, presenting his loan document
"I repaid Mr. Mandel," responded Mr. Lewin.
"Do you have a record of the payment?" asked Rabbi Dayan. "A copy of the check, proof of transfer, or receipt from Mr. Mandel?"
"No, I don't," replied Mr. Lewin. "I paid Mr. Mandel cash and didn't bother to get a receipt. I trusted him, and didn't expect him to turn around like this. Mr. Mandel himself admits that I paid him $5,000 – ask him."
"Did Mr. Lewin repay you $5,000?" asked Rabbi Dayan.
"He did pay me $5,000 three months ago," acknowledged Mr. Mandel, "but I had lent him twice. That payment was for the other loan, which was undocumented; the loan associated with this document was not repaid."
"What do you say about that?" Rabbi Dayan asked Mr. Lewin.
"I deny the existence of another loan," answered Mr. Lewin. "I borrowed only once, with this loan document, and repaid $5,000, as Mr. Mandel himself acknowledges."
"The claims are clear," said Rabbi Dayan. "Let us convene before issuing the ruling." The two litigants exited the room.
A short time later, they were called back in for the ruling.
Is Mr. Mandel believed that the payment was for another, undocumented loan?
"Since there is no proof of the $5,000 payment," ruled Rabbi Dayan, "Mr. Mandel is believed that there was another, undocumented, loan."
"Why is that?" asked Mr. Lewin.
"The Gemara (Kesubos 85a; Shavuos 42a) addresses our case," answered Rabbi Dayan. "A lender holding a loan document acknowledged that he received payment, but claimed that the payment was on behalf of another, undocumented, loan. The Gemara concludes that if there is evidence of the payment, the lender is not believed, and his loan document is countered. However, if there is no evidence of payment other than the lender's own admission, he is believed that there was another loan, based on migo." (C.M. 58:1)
"Remind me, what is migo?" asked Mr. Lewin. "I remember hearing that term."
"Migo is the Aramaic equivalent of 'mitoch,' and means 'due to the fact,' or 'since,'" explained Rabbi Dayan. "When a person can make a winning claim, but instead claims something else that is questionable, he retains much of the rights of the winning claim. Simply stated, if he is dishonest and fabricating a lie, he could have simply stated the other, winning claim, and won the case. Since the lender did not do so, it lends credence that his current claim is true, although questionable in its own right. This lends credence that his current claim is true, although questionable in its own right.
In this context, Mr. Mandel's claim that there was another loan is questionable, in its own right. However, since he could deny outright having received the $5,000 and would then be able to collect on the basis of his loan document, he is also believed when he says that he received the money but there is an additional outstanding debt. Had there been evidence of payment, though, Mr. Mandel could not claim that he didn't receive the money; migo would then not apply, and his claim that there was another loan would not be believed."
Verdict: The lender is believed and his document remains intact if there was no evidence of payment other than his admission, on account of migo; if there is evidence of payment he is not believed, and the document is countered.