Photo Credit: Jewish Press

According to this opinion, the only difference between hapeh and migo is that migo is only available as a defense to a suit, whereas hapeh is available even when the volunteered statement was not in response to a suit or was in response to a suit brought with no prima facie evidence.

Other opinions maintain that hapeh has nothing to do with migo. Hapeh is based on the fact that the person who qualifies the statement is the sole source of the unqualified statement and the court has therefore no choice but to believe her.

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There are those who reject the principle of migo on the grounds that perhaps the litigant never actually thought of the better defense or that perhaps he deliberately chose the worse defense because he wanted to avail himself of the migo principle. Everybody, however, accepts the principle of hapeh. That is because, being an unsolicited, voluntary statement, it is more credible than the migo statement, which is elicited from the defendant under the pressure of litigation. Hapeh, unlike migo, is applicable in matters of marriage and divorce

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Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Rabbi Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed.” Questions for the author can be sent to [email protected].