Migu

It was stated (Bava Kamma 72): Abaye said: A zomeim witness is disqualified (for any other testimony) retroactively (from the time that he testified). Rava said: He is only disqualified from the time that he is found to be a zomeim.

The Gemora explains: Abaye said that he is disqualified retroactively, for it is at that time that he became an evildoer, for the Torah states: Do not place your hand with an evildoer to be a corrupt witness. Rava said that he is only disqualified from the time that he is found to be a zomeim, for his disqualification is itself a novelty (so why should we stretch it). This is because the two sets of witnesses are two against two, so why should we listen to the second set more than the first? Accordingly, we can only apply the disqualification novelty from the time that they become zomemin.

Tosfos asks: Why is it such a novelty that we believe the second set of witnesses over the first? They should be believed, for they have a migu that they could have disqualified the first set by testifying that the initial witnesses are thieves (“believe us when we say that they were with us, for if we would have wanted to lie, we could have said that they are thieves!”)!?

Tosfos answers that we do not apply the principle of “migu” by two witnesses, for each one of them is not aware as to what the other one is thinking.

Furthermore, it is similar to a “migu against witnesses,” where the migu is not effective, and since in this case, the first set of witnesses are testifying that they did in fact witness the event, they are clashing with the migu of the second set. In such types of cases, a migu is not effective.

The Tzlach answers that this is a migu for half a claim and that is why it is not effective. If they would have only testified that the initial witnesses were thieves, they would become disqualified, but they would not be liable to pay at all. However, if they would testify that the first set was not there at the time that they said the event took place, they would be disqualified and they would be liable to pay. Accordingly, the migu principle would not apply in this case.

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Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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