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January 14, 2024 | ื“ืณ ื‘ืฉื‘ื˜ ืชืฉืคืดื“

  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

Bava Kamma 73

This week’s learning is sponsored anonymously in honor of our dear friend and gifted teacher Rabba Yaffa Epstein to pay tribute to the memory of her nephew Yakir Yamin Hexter zโ€l who was killed in Azza.

Todayโ€™s learning is dedicated by the Hadran Zoom family in honor of the birthday of our very own โ€œRabbi Yirmiyaโ€, Becki Goldstein, whose pointed questions keep us on our toes always. Happy birthday! To many more years of curiosity, Becki, with lots of love.

Abaye and Rava disagree about whether an eid zomem is disqualified from being a witness when they testified falsely or when convicted to be an eid zomem. To understand why Rava holds they are disqualified only from when they are convicted, the Gemara brings two different explanations. Whaqt is the practical difference between the two? Rav Ashi ruled that we hold according to Abaye and this is one of the six exceptions to the rule where we hold like Abaye when he disagrees with Rava. A difficulty is raised against Abaye’s position from our Mishna, but is resolved. The Gemara suggests that the argument between Rava and Abaye is also a subject of debate between two tannaim and brings a braita to prove it. However, this suggestion is rejected as inconclusive as it is possible the source of the debate there was regarding whether one views two different statements made in a very short time frame as if they are one unit (toch k’dei dibur k’dibur damei). If the debate is based on the latter, then Rabbi Yosi contradicts what he says in a sugya in Temura 26a where he rules we do not view two statements made one after the other as one unit. How is this resolved? Rava rules that if witnesses were first contradicted and then others came and made them into eidim zomemim, they are convicted as eidim zomemim as one cannot be convicted on contradictory testimony but it is viewed as a start toward making the witnesses zomemim. Rava proves this from a braita.

ืžืฉื•ื ืคืกื™ื“ื ื“ืœืงื•ื—ื•ืช


It is due to the potential monetary loss for purchasers, whose acquisitions had been validated by these witnesses between the time of the witnessesโ€™ first testimony and when they were rendered conspiring witnesses. If the disqualification of the witnesses were applied retroactively, as by right it should, all these transactions would be nullified, which would cause a loss to these purchasers.


ืžืื™ ื‘ื™ื ื™ื™ื”ื• ื“ืืกื”ื™ื“ื• ื‘ื™ื” ืชืจื™ ืœื—ื“ ื•ืชืจื™ ืœื—ื“ ืื™ ื ืžื™ ื“ืคืกืœื™ื ื”ื• ื‘ื’ื–ืœื ื•ืชื


The Gemara asks: What is the practical difference between these two explanations of Ravaโ€™s opinion? After all, according to both explanations Rava did not apply the disqualification of conspiring witnesses retroactively. The Gemara explains that there is a difference in a case where two witnesses testify about one of the witnesses that he was not at the scene of the supposed crime, and two other witnesses testify about the other one witness in a similar manner. Alternatively, there is a practical difference between the two explanations in a case where two witnesses disqualified the first set of witnesses by testifying that they had once committed robbery and are therefore unfit to give testimony.


ืœื”ืš ืœื™ืฉื ื ื“ืืžืจืช ืžืฉื•ื ื—ื™ื“ื•ืฉ ืœื™ื›ื ืœื”ืš ืœื™ืฉื ื ื“ืืžืจืช ืžืฉื•ื ืคืกื™ื“ื ื“ืœืงื•ื—ื•ืช ืื™ื›ื


The Gemara elaborates: According to this version in which you say that Ravaโ€™s rejection of retroactive disqualification was because it is a novelty, in these two circumstances there is no novelty, and therefore he would agree that the disqualification should be retroactive. According to that version in which you say that Ravaโ€™s concern was due to a potential loss for purchasers, in these two circumstances there is a concern for a potential loss for purchasers. Consequently, in these circumstances as well Rava would reject retroactive disqualification.


ืืžืจ ืจื‘ื™ ื™ืจืžื™ื” ืžื“ืคืชื™ ืขื‘ื“ ืจื‘ ืคืคื ืขื•ื‘ื“ื ื›ื•ื•ืชื™ื” ื“ืจื‘ื ืจื‘ ืืฉื™ ืืžืจ ื”ืœื›ืชื ื›ื•ื•ืชื™ื” ื“ืื‘ื™ื™ ื•ื”ืœื›ืชื ื›ื•ื•ืชื™ื” ื“ืื‘ื™ื™ ื‘ื™ืขืœ ืงื’ื


Rabbi Yirmeya of Difti related: Rav Pappa once took action, i.e., ruled in a case, in accordance with the opinion of Rava, and rejected retroactive disqualification of conspiring witnesses. Rav Ashi said: The halakha is in accordance with the opinion of Abaye with regard to retroactive disqualification of conspiring witnesses. The Gemara provides a principle: And in disputes between Abaye and Rava the halakha is in accordance with the opinion of Rava, except for six cases in which the halakha is in accordance with the opinion of Abaye. They are: In the cases represented by the mnemonic yod-ayin-lamed kuf-gimmel-mem. These halakhot are the following: Unknown despair [yeโ€™ush]; conspiring witness [eidim] who are disqualified retroactively; a side post [leแธฅi] standing alone; betrothal [kiddushin] that is not given to consummation; revealing intent with a bill of divorce [get]; and an apostate [mumar] who sins rebelliously.


ืชื ืŸ ื’ื ื‘ ืขืœ ืคื™ ืฉื ื™ื ื•ื˜ื‘ื— ื•ืžื›ืจ ืขืœ ืคื™ื”ื ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฉืœืžื™ืŸ ืืช ื”ื›ืœ


The Gemara asks a question with regard to Abayeโ€™s opinion from that which we learned in the mishna: If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he slaughtered the animal or sold it, also based on the testimony of the same witnesses, and these witnesses were found to be conspiring witnesses, these conspiring witnesses pay everything, including the fourfold or fivefold payment.


ืžืื™ ืœืื• ืฉื”ืขื™ื“ื• ืขืœ ื”ื’ื ื™ื‘ื” ื•ื—ื–ืจื• ื•ื”ืขื™ื“ื• ืขืœ ื”ื˜ื‘ื™ื—ื” ื•ื”ื•ื–ืžื• ืขืœ ื”ื’ื ื™ื‘ื” ื•ื—ื–ืจื• ื•ื”ื•ื–ืžื• ืขืœ ื”ื˜ื‘ื™ื—ื”


The Gemara explains the question: What, is it not referring to a case in which the events occurred in the following sequence: The witnesses testified concerning the theft of the animal, and then testified concerning the animalโ€™s slaughter. And subsequently they were rendered conspiring witnesses for their testimony concerning the theft, and then they were rendered conspiring witnesses for their testimony concerning the slaughter.


ื•ืื™ ืกืœืงื ื“ืขืชืš ืœืžืคืจืข ื”ื•ื ื ืคืกืœ ื”ื ื™ ื›ื™ื•ืŸ ื“ืื™ืชื–ืžื• ืœื”ื• ืื’ื ื™ื‘ื” ืื™ื’ืœืื™ ืžื™ืœืชื ืœืžืคืจืข ื“ื›ื™ ืืกื”ื“ื• ืื˜ื‘ื™ื—ื” ืคืกื•ืœื™ืŸ ื”ื•ื• ืืžืื™ ืžืฉืœืžื™ืŸ ืื˜ื‘ื™ื—ื”


And if it enters your mind to say, in accordance with the opinion of Abaye, that a conspiring witness is disqualified retroactively from the time he provided his testimony, then with regard to these witnesses, once they are rendered conspiring witnesses concerning the theft, the matter becomes clarified retroactively that when they testified concerning the slaughter they were disqualified to serve as witnesses. Consequently, that testimony should be rejected. Why, then, must they pay the fourfold or fivefold payment for their testimony concerning the animalโ€™s slaughter?


ืืžืจื™ ื”ื›ื ื‘ืžืื™ ืขืกืงื™ื ืŸ ื›ื’ื•ืŸ ืฉื”ื•ื–ืžื• ืขืœ ื”ื˜ื‘ื™ื—ื” ืชื—ื™ืœื”


The Sages say in response: With what are we dealing here? We are dealing with a case where the events did not happen in this sequence. Rather, the witnesses were first rendered conspiring witnesses with regard to their testimony concerning the animalโ€™s slaughter, and only afterward were they rendered conspiring witnesses with regard to the theft.


ืืžืจื™ ืกื•ืฃ ืกื•ืฃ ื›ื™ ื”ื“ืจื™ ืžื™ืชื–ืžื™ ืื’ื ื™ื‘ื” ืื™ื’ืœืื™ ืžื™ืœืชื ื“ื›ื™ ืืกื”ื“ื• ืื˜ื‘ื™ื—ื” ืคืกื•ืœื™ืŸ ื”ื•ื• ืืžืื™ ืžืฉืœืžื™ ืื˜ื‘ื™ื—ื”


The Sages say, in rejection of this answer: Ultimately, when they are subsequently rendered conspiring witnesses with regard to their testimony concerning the theft, the matter becomes clarified retroactively that when they testified concerning the slaughter they were disqualified from providing testimony. Why, then, must they pay the fourfold or fivefold payment for their testimony concerning the animalโ€™s slaughter?


ื•ื”ืœื›ืชื ืฉื”ืขื™ื“ื• ื‘ื‘ืช ืื—ืช ื•ื”ื•ื–ืžื•


The Gemara gives its final answer: And the halakha is in accordance with the opinion of Abaye, since the mishna can be explained as discussing a case where the witnesses testified concerning the theft of the animal and its slaughter at the same time, and afterward they were rendered conspiring witnesses with regard to testimony about both matters. Therefore, even if the disqualification of these witnesses is established retroactively, they were not disqualified when they provided their single testimony concerning the theft and the slaughter.


ืœื™ืžื ื›ืชื ืื™ ื”ื™ื• ืฉื ื™ื ืžืขื™ื“ื™ืŸ ืื•ืชื• ืฉื’ื ื‘ ื•ื”ืŸ ืžืขื™ื“ื™ืŸ ืื•ืชื• ืฉื˜ื‘ื— ื•ื”ื•ื–ืžื• ืขืœ ื”ื’ื ื™ื‘ื” ืขื“ื•ืช ืฉื‘ื˜ืœื” ืžืงืฆืชื” ื‘ื˜ืœื” ื›ื•ืœื”


The Gemara proposes: Let us say that the dispute between Abaye and Rava is parallel to a dispute between tannaโ€™im. As it is taught in a baraita: In a case where there were two witnesses testifying against someone, claiming that he stole an animal, and they subsequently testify against him that he slaughtered the animal, and they were rendered conspiring witnesses only with regard to their testimony concerning the theft, the halakha is in accordance with the principle that testimony that was partially invalidated is entirely invalidated. In other words, the testimony concerning the slaughter of the animal is null and void, as there is no longer any testimony that the animal was ever stolen. Therefore, the witnesses pay the double payment for having attempted to cause the alleged thief to pay that amount, while the accused is entirely exempt.


ื”ื•ื–ืžื• ืขืœ ื”ื˜ื‘ื™ื—ื” ื”ื•ื ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ื•ื”ืŸ ืžืฉืœืžื™ืŸ ืชืฉืœื•ืžื™ ืฉืœืฉื”


But if they were rendered conspiring witnesses only with regard to their testimony concerning the slaughter, their testimony about the theft remains valid. Consequently, the thief pays the double payment, and the witnesses pay a twofold or threefold payment for having attempted to cause the thief to pay this amount, which is the fine for slaughter or sale beyond his double payment.


ืืžืจ ืจื‘ื™ ื™ื•ืกื™ ื‘ืžื” ื“ื‘ืจื™ื ืืžื•ืจื™ื ื‘ืฉืชื™ ืขื“ื™ื•ืช ืื‘ืœ ื‘ืขื“ื•ืช ืื—ืช ืขื“ื•ืช ืฉื‘ื˜ืœื” ืžืงืฆืชื” ื‘ื˜ืœื” ื›ื•ืœื”


The baraita continues: Rabbi Yosei said: In what case is this statement said? It is said when the theft and the slaughter were established by two separate testimonies. But if these matters were established by one single testimony, then even if they were rendered conspiring witnesses with regard to the testimony concerning the slaughter, the halakha is in accordance with the principle that testimony that was partially invalidated is entirely invalidated. When the testimony concerning the slaughter is invalidated the testimony concerning the theft is likewise negated, and the alleged thief is not required to pay the double payment. This concludes the baraita.


ืžืื™ ื‘ืฉืชื™ ืขื“ื™ื•ืช ื•ืžืื™ ื‘ืขื“ื•ืช ืื—ืช ืื™ืœื™ืžื ื‘ืฉืชื™ ืขื“ื™ื•ืช ื‘ืฉืชื™ ืขื“ื™ื•ืช ืžืžืฉ ื‘ืฉืชื™ ื›ืชื•ืช ื‘ืขื“ื•ืช ืื—ืช ื‘ื›ืช ืื—ืช ื‘ื–ื” ืื—ืจ ื–ื”


The Gemara analyzes Rabbi Yoseiโ€™s statement. What did Rabbi Yosei mean when he said: By two separate testimonies, and what did he mean when he said: By one single testimony? If we say that the phrase: By two separate testimonies, means literally by two separate testimonies, i.e., by two separate sets of witnesses, one of which testifies concerning the theft while the other testifies concerning the slaughter, this would mean that the expression: By one single testimony, means by one set of witnesses that testifies to both the theft and the slaughter, one matter after the other.


ื•ืืžืจ ืจื‘ื™ ื™ื•ืกื™ ื‘ืขื“ื•ืช ืื—ืช ื‘ื›ืช ืื—ืช ื‘ื–ื” ืื—ืจ ื–ื” ื›ื™ ืžืกื”ื“ื™ ืื’ื ื™ื‘ื” ื•ื”ื“ืจ ืžืกื”ื“ื™ ืื˜ื‘ื™ื—ื” ื›ื™ ืžืชื–ืžื™ ืื˜ื‘ื™ื—ื” ืขื“ื•ืช ืฉื‘ื˜ืœื” ืžืงืฆืชื” ื‘ื˜ืœื” ื›ื•ืœื” ื•ืื™ืชื–ืžื• ืœื”ื• ืื’ื ื™ื‘ื” ืžื”ื™ื›ื ืชื™ืชื™ ื”ืš


And if so, when Rabbi Yosei then says that the facts are established by one testimony, he meant one set of witnesses testifying about both matters, one matter after the other, i.e., that they testify concerning the theft and then testify concerning the slaughter. Therefore, when they are rendered conspiring witnesses only with regard to the slaughter, the halakha is determined in accordance with the principle that testimony that was partially invalidated is entirely invalidated. And consequently Rabbi Yosei would maintain that they are considered to have been rendered conspiring witnesses concerning the theft as well. The Gemara asks: From where would this be derived? Why should the earlier testimony about the theft be negated by their status as conspiring witnesses from the later testimony concerning the slaughter?


ืืœื ืœืื• ื‘ืฉืชื™ ืขื“ื™ื•ืช ื‘ืขื“ื•ืช ืื—ืช ื›ืขื™ืŸ ืฉืชื™ ืขื“ื™ื•ืช ื•ืžืื™ ื ื™ื ื”ื• ื›ืช ืื—ืช ื‘ื–ื” ืื—ืจ ื–ื” ืื‘ืœ ื‘ืขื“ื•ืช ืื—ืช ื‘ื‘ืช ืื—ืช ืœื


Rather, is it not the case that when Rabbi Yosei said: By two testimonies, he meant: By a single testimony that is similar to two testimonies. And what is that? It is one set of witnesses who testify about both the theft and the slaughter, one matter after the other, at two separate times. But if these matters were established by one single testimony, when the witnesses testified about both matters at the same time, Rabbi Yosei concedes that these are not considered two separate testimonies, despite the fact that they refer to two different events.


ื•ืกื‘ืจื•ื” ื“ื›ื•ืœื™ ืขืœืžื ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™


The Gemara continues to analyze the dispute between Rabbi Yosei and the Rabbis: The amoraโ€™im discussing this matter assumed that according to everyone, i.e., both Rabbi Yosei and the Rabbis, if a witness pauses briefly in his testimony and then continues to testify, it is considered one long testimony. This is in accordance with the principle that the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech. Therefore, the two testimonies, the one concerning the theft and the one concerning the slaughter, are considered a single testimony.


ืžืื™ ืœืื• ื‘ื”ื ืงืžื™ืคืœื’ื™ ื“ืจื‘ื ืŸ ืกื‘ืจื™ ืžื›ืืŸ ื•ืœื”ื‘ื ื”ื•ื ื ืคืกืœ ื•ื›ื™ื•ืŸ ื“ืžื”ื”ื™ื ืฉืขืชื ืงื ืžื™ืชื–ืžื™ ืื˜ื‘ื™ื—ื” ื“ืงื ืžื™ืชื–ืžื™ ืื™ืชื–ื•ื ืื’ื ื™ื‘ื” ื“ืœื ืžื™ืชื–ืžื™ ืœื ืื™ืชื–ื•ื


The Gemara asks with regard to the above: What, is it not with regard to this that Rabbi Yosei and the Rabbis disagree? As the Rabbis maintain, like Rava, that a conspiring witness is disqualified from here on, i.e., from when he is rendered a conspiring witness. And since it was only from that time, when the other witnesses testify about them, that they are rendered conspiring witnesses, it is only with regard to their testimony concerning the animalโ€™s slaughter that they are rendered conspiring witnesses, whereas concerning the theft itself they are not rendered conspiring witnesses.


ืจื‘ื™ ื™ื•ืกื™ ืกื‘ืจ ืœืžืคืจืข ื”ื•ื ื ืคืกืœ ื•ื›ื™ื•ืŸ ื“ืžื™ื“ ื›ื™ ืืกื”ื™ื“ื• ื”ื•ื ื“ืžื™ืคืกืœื™ ืื™ ืื™ืชื–ืžื• ืœื”ื• ืื˜ื‘ื™ื—ื” ืื™ืชื–ืžื• ืœื”ื• ื ืžื™ ืื’ื ื™ื‘ื” ื“ื”ื ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™


And Rabbi Yosei holds, like Abaye, that a conspiring witness is disqualified retroactively, from when he provided his testimony. And consequently, since they are disqualified immediately when they testify, if they are rendered conspiring witnesses concerning the slaughter they are rendered conspiring witnesses concerning the theft as well, as the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech, i.e., the two testimonies are considered one unit.


ืืžืจื™ ืื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ื“ื›ื•ืœื™ ืขืœืžื ืœืžืคืจืข ื”ื•ื ื ืคืกืœ ืืœื ื”ื›ื ื‘ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ืงื ืžื™ืคืœื’ื™ ืจื‘ื ืŸ ืกื‘ืจื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ


The Sages say, in rejection of this opinion: If it were accepted that the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech, everyone would agree that the witnesses are disqualified retroactively, and their testimony with regard to the theft would also be negated. But here they disagree about that very issue, i.e., whether the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech. The Rabbis maintain that if the pause is within the time required for speaking a short phrase, then the two aspects of the testimony provided by the witnesses


ืœืื• ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ื•ืจื‘ื™ ื™ื•ืกื™ ืกื‘ืจ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™


are not like one testimony of continuous speech, but are considered separate testimonies, and therefore the testimony concerning the theft remains valid. And Rabbi Yosei maintains that the legal status of a pause within the time required for speaking a short phrase is like that of continuous speech, and therefore the testimony about the theft is disqualified together with the testimony concerning the slaughter.


ื•ืกื‘ืจ ืจื‘ื™ ื™ื•ืกื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ื•ื”ืชื ืŸ ื”ืจื™ ื–ื• ืชืžื•ืจืช ืขื•ืœื” ืชืžื•ืจืช ืฉืœืžื™ื ื”ืจื™ ื–ื• ืชืžื•ืจืช ืขื•ืœื” ื“ื‘ืจื™ ืจื‘ื™ ืžืื™ืจ


The Gemara asks: But does Rabbi Yosei really maintain that the legal status of a statement interrupted or retracted within the time required for speaking a short phrase is like that of continuous speech? But didnโ€™t we learn otherwise in a mishna (Temura 25b): If one designates an animal by saying: This animal is hereby a substitute for a burnt-offering, a substitute for a peace-offering, he has issued two contradictory statements and therefore this animal is considered a substitute for a burnt-offering, i.e., only the first part of his statement is accepted. This is the statement of Rabbi Meir.


ืจื‘ื™ ื™ื•ืกื™ ืื•ืžืจ ืื ืœื›ืš ื ืชื›ื•ื•ืŸ ืžืชื—ื™ืœื” ื”ื•ืื™ืœ ื•ืื™ ืืคืฉืจ ืœืงืจื•ืช ืฉื ื™ ืฉืžื•ืช ื›ืื—ื“ ื“ื‘ืจื™ื• ืงื™ื™ืžื™ืŸ ื•ืื ืืžืจ ืชืžื•ืจืช ืขื•ืœื” ื•ื ืžืœืš ื•ืืžืจ ืชืžื•ืจืช ืฉืœืžื™ื ื”ืจื™ ื–ื• ืชืžื•ืจืช ืขื•ืœื”


Rabbi Yosei says: If he intended this outcome from the outset, that the animal should serve both as the substitute of a burnt-offering and as the substitute of a peace-offering, since it is impossible for one to call it by two names at once, i.e., the only way he can make his intent known is by issuing these two apparently contradictory declarations consecutively, his statement stands, and the animal has the status of both a substitute for a burnt-offering and a substitute for a peace-offering. But if he said: This animal is a substitute for a burntoffering and then changed his mind and said: A substitute for a peace-offering, it is a substitute for a burnt-offering.


ื•ื”ื•ื™ื ืŸ ื‘ื” ื ืžืœืš ืคืฉื™ื˜ื


And we discussed this ruling: If he changed his mind before saying: A substitute for a peace-offering, it is obvious that he cannot remove the status he already applied to the animal, and the animal certainly remains a substitute for a burnt-offering. Rabbi Yosei would not have issued such an obvious ruling.


ื•ืืžืจ ืจื‘ ืคืคื ื ืžืœืš ื‘ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ืงืืžืจื™ื ืŸ


And Rav Pappa said in response to this question: We are speaking of a case where the individual changed his mind within the time required for speaking a short phrase. Rabbi Yosei holds that when one adds to a statement after a pause, even if the addition was made within a short time, it is considered a separate statement, which does not reverse the initial declaration. This contradicts the explanation given for the baraita cited above, according to which Rabbi Yosei maintains that when one adds to an existing statement within the time required for speaking a short phrase it is considered continuous speech.


ืืžืจื™ ืชืจื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื”ื•ื™ ื—ื“ ื›ื“ื™ ืฉืื™ืœืช ืชืœืžื™ื“ ืœืจื‘ ื•ื—ื“ ื›ื“ื™ ืฉืื™ืœืช ื”ืจื‘ ืœืชืœืžื™ื“ ื›ื™ ืœื™ืช ืœื™ื” ืœืจื‘ื™ ื™ื•ืกื™ ื›ื“ื™ ืฉืื™ืœืช ืชืœืžื™ื“ ืœืจื‘ ืฉืœื•ื ืขืœื™ืš ืจื‘ื™ ื•ืžื•ืจื™ ื“ื ืคื™ืฉ ื›ื“ื™ ืฉืื™ืœืช ื”ืจื‘ ืœืชืœืžื™ื“ ืฉืœื•ื ืขืœื™ืš ืื™ืช ืœื™ื”


The Sages say in response: There are two time frames that are referred to as being within the time required for speaking a short phrase. One is the time required for a student to greet a rabbi, and the other one is the time required for the rabbi to greet a student. When does Rabbi Yosei hold that a statement added within the time required for speaking a short phrase is not considered continuous speech? When the words are added within the time required for a student to greet his rabbi using the phrase: Peace be upon you, my rabbi and teacher, as that is a long pause. By contrast, if the statement is added within the shorter time frame required for the rabbi to greet his student: Peace be upon you, Rabbi Yosei is of the opinion that the added words constitute speech that is continuous with the original statement.


ืืžืจ ืจื‘ื ืขื“ื™ื ืฉื”ื•ื›ื—ืฉื• ื•ืœื‘ืกื•ืฃ ื”ื•ื–ืžื• ื ื”ืจื’ื™ืŸ ื“ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื ืืœื ืฉืœื ื ื’ืžืจื”


ยง Rava says: Witnesses to a capital crime who were first contradicted by two other witnesses, and ultimately they, the first set of witnesses, were rendered conspiring witnesses, are killed, in accordance with the punishment for conspiring witnesses involved in a capital case, despite the fact that their testimony was already disqualified prior to the discovery of their conspiracy. The reason is that the contradiction of testimony is the start of determining that testimony is conspiring testimony, only the process has not yet been completed at the time of the contradiction.


ืืžืจ ืจื‘ื ืžื ื ืืžื™ื ื ืœื” ื“ืชื ื™ื ืžืขื™ื“ื ื™ ื‘ืื™ืฉ ืคืœื•ื ื™ ืฉืกื™ืžื ืืช ืขื™ืŸ ืขื‘ื“ื• ื•ื”ืคื™ืœ ืืช ืฉื™ื ื• ืฉื”ืจื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืขื‘ื“


Rava said: From where do I say that this is so? As it is taught in a baraita (Tosefta, Makkot 1:3) that if witnesses say: We testify with regard to so-and-so that he blinded his Canaanite slaveโ€™s eye and afterward knocked out his tooth, and therefore the master is obligated to pay him compensation for the value of his tooth, as that is what the master says, i.e., this testimony is advantageous to the master, and subsequently they were found to be conspiring witnesses, they pay the value of an eye to the slave.


ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ื›ื“ืงืชื ื™ ื“ืœื™ื›ื ื›ืช ืื—ืจื™ื ื ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืขื‘ื“ ื‘ืชืจ ื“ืžืคืงื™ ืœื™ื” ืœื—ื™ืจื•ืช ื“ืžื™ ืขื™ื ื• ืงื‘ืขื™ ืฉืœื•ืžื™


Rava explains that the baraita as written is problematic: What are the circumstances of this case? If we say that it is exactly as it is taught in the baraita, i.e., that there is no other set of witnesses other than those whose statement is quoted in the baraita and the opposing set of witnesses who establish them as conspiring witnesses, several problems arise: First, why should they pay the value of an eye to the slave? After emancipating him by testifying that his master has blinded him, should they be required to pay him the value of his eye?


ื•ืขื•ื“ ื“ืžื™ ื›ื•ืœื™ื” ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืœืฉืœื•ืžื™ ื•ืขื•ื“ ืฉื”ืจื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ ื”ืจื‘ ืžื™ ื ื™ื—ื ืœื™ื”


And furthermore, they should be required to pay the value of the entire slave to the master, as they intended to cause him to lose ownership of his slave through their false testimony. And furthermore, why does the baraita say: As that is what the master says, i.e., this testimony is advantageous to the master. Is it really satisfactory to the master that his slave be emancipated as a result of this testimony?


ืืœื ืœืื• ื›ื’ื•ืŸ ื“ืืชื• ื‘ื™ ืชืจื™ ื•ืืžืจื™ ื”ืคื™ืœ ืืช ืฉื™ื ื• ืกื™ืžื ืืช ืขื™ื ื• ื“ื‘ืขื™ ืžื™ืชื™ื‘ ืœื™ื” ื”ืจื‘ ื“ืžื™ ืขื™ื ื• ื•ืืชื• ื‘ื™ ืชืจื™ ืžืฆื™ืขืื™ ื•ืืžืจื™ ืขื™ื ื• ื•ื”ื“ืจ ืฉื™ื ื• ื“ืœื ื‘ืขื™ ืœืžื™ืชื‘ ืœื™ื” ืืœื ื“ืžื™ ืฉื™ื ื• ื“ืงื ืžื›ื—ืฉื™ ืœื™ื” ืงืžืื™ ืœืžืฆื™ืขืื™


Rather, it must be that this case involves another, competing, testimony that is not mentioned in the baraita. Is it not correct to say that the baraita is dealing with a case where prior to the testimonies mentioned in the baraita two other witnesses came and said: The master first knocked out the slaveโ€™s tooth and then blinded his eye, in which case the master is required to emancipate the slave and also to give him the value of his eye; and then an intermediate set of two witnesses came and said the testimony quoted in the baraita, that first the master blinded the slaveโ€™s eye and then knocked out his tooth? According to this account the master would still be required to emancipate the slave, but he would be required to give him only the value of his tooth, which is much less than the value of an eye. In this case the testimony of the first set of witnesses contradicts the testimony of the intermediate ones.


ื•ื”ื™ื™ื ื• ืฉื”ืจื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ ื“ื ื™ื—ื ืœื™ื” ื‘ืžืื™ ื“ืงืืžืจื™


And this is the meaning of the clause: As that is what the master says, i.e., this testimony is advantageous to the master. It means that what the intermediate witnesses say, i.e., that he owes the value of a tooth, is satisfactory to him, as according to the claim of the first set, he owes the value of an eye. Since there are now contradictory testimonies, the testimony stating the claim of a loss of lesser value is accepted, and in that case the master would have to pay the slave only for the value of his tooth, in addition to emancipating him. This judgment corresponds exactly to the testimony of the intermediate set of witnesses.


ื•ืงืชื ื™ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฆื™ืขืื™ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืขื‘ื“


And the baraita subsequently teaches: And then the intermediate set of witnesses were found to be conspiring witnesses, as a third set of witnesses testified that the intermediate set was not at the scene of the incident at all. Therefore, the intermediate set of witnesses pays the value of an eye to the slave less the value of a tooth, as this is the amount of monetary damage the slave stood to incur as a result of their testimony.


ืฉืžืข ืžื™ื ื” ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื


Rava concludes his proof: Learn from the baraita that the contradiction of testimony is the start of determining that testimony is conspiring testimony. Although the testimony of the intermediate set of witnesses had already been contradicted before it was shown to be conspiring testimony, nevertheless, they can still be established as conspiring witnesses at that later stage, which means that they must pay an amount equivalent to the loss they were attempting to cause through their testimony.


ืืžืจ ืื‘ื™ื™ ืœื


Abaye said: No. There is another possible interpretation for the baraita, which answers the questions raised above and yet does not serve as proof for Ravaโ€™s opinion. According to this interpretation, the contradictory testimony was given after, not before, the testimony mentioned in the baraita.


ื“ืืคื›ื™ื ื”ื• ื•ืื–ืžื™ื ื”ื•


It is possible that the baraita is discussing a case where a second set of witnesses both reversed the order of events, by testifying that the tooth was knocked out before the blinding of the eye, and at the same time rendered the first set witnesses as conspiring witnesses, by testifying that those original witnesses were not at the scene of the supposed events they claimed to have witnessed. It can be argued, albeit in a far-fetched manner, that the testimony of the first set of witnesses is considered to be to the masterโ€™s advantage even at this stage, because he knows what really happened, as reflected in the testimony of the later witnesses. Accordingly, Rava maintains that there are a total of three sets of witnesses in the case of the baraita, while Abaye says that there are only two sets.


ืžืžืื™


Abaye elaborates: From where do I say that my interpretation of the baraita is correct?


  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

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Bava Kamma 73

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Bava Kamma 73

ืžืฉื•ื ืคืกื™ื“ื ื“ืœืงื•ื—ื•ืช


It is due to the potential monetary loss for purchasers, whose acquisitions had been validated by these witnesses between the time of the witnessesโ€™ first testimony and when they were rendered conspiring witnesses. If the disqualification of the witnesses were applied retroactively, as by right it should, all these transactions would be nullified, which would cause a loss to these purchasers.


ืžืื™ ื‘ื™ื ื™ื™ื”ื• ื“ืืกื”ื™ื“ื• ื‘ื™ื” ืชืจื™ ืœื—ื“ ื•ืชืจื™ ืœื—ื“ ืื™ ื ืžื™ ื“ืคืกืœื™ื ื”ื• ื‘ื’ื–ืœื ื•ืชื


The Gemara asks: What is the practical difference between these two explanations of Ravaโ€™s opinion? After all, according to both explanations Rava did not apply the disqualification of conspiring witnesses retroactively. The Gemara explains that there is a difference in a case where two witnesses testify about one of the witnesses that he was not at the scene of the supposed crime, and two other witnesses testify about the other one witness in a similar manner. Alternatively, there is a practical difference between the two explanations in a case where two witnesses disqualified the first set of witnesses by testifying that they had once committed robbery and are therefore unfit to give testimony.


ืœื”ืš ืœื™ืฉื ื ื“ืืžืจืช ืžืฉื•ื ื—ื™ื“ื•ืฉ ืœื™ื›ื ืœื”ืš ืœื™ืฉื ื ื“ืืžืจืช ืžืฉื•ื ืคืกื™ื“ื ื“ืœืงื•ื—ื•ืช ืื™ื›ื


The Gemara elaborates: According to this version in which you say that Ravaโ€™s rejection of retroactive disqualification was because it is a novelty, in these two circumstances there is no novelty, and therefore he would agree that the disqualification should be retroactive. According to that version in which you say that Ravaโ€™s concern was due to a potential loss for purchasers, in these two circumstances there is a concern for a potential loss for purchasers. Consequently, in these circumstances as well Rava would reject retroactive disqualification.


ืืžืจ ืจื‘ื™ ื™ืจืžื™ื” ืžื“ืคืชื™ ืขื‘ื“ ืจื‘ ืคืคื ืขื•ื‘ื“ื ื›ื•ื•ืชื™ื” ื“ืจื‘ื ืจื‘ ืืฉื™ ืืžืจ ื”ืœื›ืชื ื›ื•ื•ืชื™ื” ื“ืื‘ื™ื™ ื•ื”ืœื›ืชื ื›ื•ื•ืชื™ื” ื“ืื‘ื™ื™ ื‘ื™ืขืœ ืงื’ื


Rabbi Yirmeya of Difti related: Rav Pappa once took action, i.e., ruled in a case, in accordance with the opinion of Rava, and rejected retroactive disqualification of conspiring witnesses. Rav Ashi said: The halakha is in accordance with the opinion of Abaye with regard to retroactive disqualification of conspiring witnesses. The Gemara provides a principle: And in disputes between Abaye and Rava the halakha is in accordance with the opinion of Rava, except for six cases in which the halakha is in accordance with the opinion of Abaye. They are: In the cases represented by the mnemonic yod-ayin-lamed kuf-gimmel-mem. These halakhot are the following: Unknown despair [yeโ€™ush]; conspiring witness [eidim] who are disqualified retroactively; a side post [leแธฅi] standing alone; betrothal [kiddushin] that is not given to consummation; revealing intent with a bill of divorce [get]; and an apostate [mumar] who sins rebelliously.


ืชื ืŸ ื’ื ื‘ ืขืœ ืคื™ ืฉื ื™ื ื•ื˜ื‘ื— ื•ืžื›ืจ ืขืœ ืคื™ื”ื ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฉืœืžื™ืŸ ืืช ื”ื›ืœ


The Gemara asks a question with regard to Abayeโ€™s opinion from that which we learned in the mishna: If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he slaughtered the animal or sold it, also based on the testimony of the same witnesses, and these witnesses were found to be conspiring witnesses, these conspiring witnesses pay everything, including the fourfold or fivefold payment.


ืžืื™ ืœืื• ืฉื”ืขื™ื“ื• ืขืœ ื”ื’ื ื™ื‘ื” ื•ื—ื–ืจื• ื•ื”ืขื™ื“ื• ืขืœ ื”ื˜ื‘ื™ื—ื” ื•ื”ื•ื–ืžื• ืขืœ ื”ื’ื ื™ื‘ื” ื•ื—ื–ืจื• ื•ื”ื•ื–ืžื• ืขืœ ื”ื˜ื‘ื™ื—ื”


The Gemara explains the question: What, is it not referring to a case in which the events occurred in the following sequence: The witnesses testified concerning the theft of the animal, and then testified concerning the animalโ€™s slaughter. And subsequently they were rendered conspiring witnesses for their testimony concerning the theft, and then they were rendered conspiring witnesses for their testimony concerning the slaughter.


ื•ืื™ ืกืœืงื ื“ืขืชืš ืœืžืคืจืข ื”ื•ื ื ืคืกืœ ื”ื ื™ ื›ื™ื•ืŸ ื“ืื™ืชื–ืžื• ืœื”ื• ืื’ื ื™ื‘ื” ืื™ื’ืœืื™ ืžื™ืœืชื ืœืžืคืจืข ื“ื›ื™ ืืกื”ื“ื• ืื˜ื‘ื™ื—ื” ืคืกื•ืœื™ืŸ ื”ื•ื• ืืžืื™ ืžืฉืœืžื™ืŸ ืื˜ื‘ื™ื—ื”


And if it enters your mind to say, in accordance with the opinion of Abaye, that a conspiring witness is disqualified retroactively from the time he provided his testimony, then with regard to these witnesses, once they are rendered conspiring witnesses concerning the theft, the matter becomes clarified retroactively that when they testified concerning the slaughter they were disqualified to serve as witnesses. Consequently, that testimony should be rejected. Why, then, must they pay the fourfold or fivefold payment for their testimony concerning the animalโ€™s slaughter?


ืืžืจื™ ื”ื›ื ื‘ืžืื™ ืขืกืงื™ื ืŸ ื›ื’ื•ืŸ ืฉื”ื•ื–ืžื• ืขืœ ื”ื˜ื‘ื™ื—ื” ืชื—ื™ืœื”


The Sages say in response: With what are we dealing here? We are dealing with a case where the events did not happen in this sequence. Rather, the witnesses were first rendered conspiring witnesses with regard to their testimony concerning the animalโ€™s slaughter, and only afterward were they rendered conspiring witnesses with regard to the theft.


ืืžืจื™ ืกื•ืฃ ืกื•ืฃ ื›ื™ ื”ื“ืจื™ ืžื™ืชื–ืžื™ ืื’ื ื™ื‘ื” ืื™ื’ืœืื™ ืžื™ืœืชื ื“ื›ื™ ืืกื”ื“ื• ืื˜ื‘ื™ื—ื” ืคืกื•ืœื™ืŸ ื”ื•ื• ืืžืื™ ืžืฉืœืžื™ ืื˜ื‘ื™ื—ื”


The Sages say, in rejection of this answer: Ultimately, when they are subsequently rendered conspiring witnesses with regard to their testimony concerning the theft, the matter becomes clarified retroactively that when they testified concerning the slaughter they were disqualified from providing testimony. Why, then, must they pay the fourfold or fivefold payment for their testimony concerning the animalโ€™s slaughter?


ื•ื”ืœื›ืชื ืฉื”ืขื™ื“ื• ื‘ื‘ืช ืื—ืช ื•ื”ื•ื–ืžื•


The Gemara gives its final answer: And the halakha is in accordance with the opinion of Abaye, since the mishna can be explained as discussing a case where the witnesses testified concerning the theft of the animal and its slaughter at the same time, and afterward they were rendered conspiring witnesses with regard to testimony about both matters. Therefore, even if the disqualification of these witnesses is established retroactively, they were not disqualified when they provided their single testimony concerning the theft and the slaughter.


ืœื™ืžื ื›ืชื ืื™ ื”ื™ื• ืฉื ื™ื ืžืขื™ื“ื™ืŸ ืื•ืชื• ืฉื’ื ื‘ ื•ื”ืŸ ืžืขื™ื“ื™ืŸ ืื•ืชื• ืฉื˜ื‘ื— ื•ื”ื•ื–ืžื• ืขืœ ื”ื’ื ื™ื‘ื” ืขื“ื•ืช ืฉื‘ื˜ืœื” ืžืงืฆืชื” ื‘ื˜ืœื” ื›ื•ืœื”


The Gemara proposes: Let us say that the dispute between Abaye and Rava is parallel to a dispute between tannaโ€™im. As it is taught in a baraita: In a case where there were two witnesses testifying against someone, claiming that he stole an animal, and they subsequently testify against him that he slaughtered the animal, and they were rendered conspiring witnesses only with regard to their testimony concerning the theft, the halakha is in accordance with the principle that testimony that was partially invalidated is entirely invalidated. In other words, the testimony concerning the slaughter of the animal is null and void, as there is no longer any testimony that the animal was ever stolen. Therefore, the witnesses pay the double payment for having attempted to cause the alleged thief to pay that amount, while the accused is entirely exempt.


ื”ื•ื–ืžื• ืขืœ ื”ื˜ื‘ื™ื—ื” ื”ื•ื ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ื•ื”ืŸ ืžืฉืœืžื™ืŸ ืชืฉืœื•ืžื™ ืฉืœืฉื”


But if they were rendered conspiring witnesses only with regard to their testimony concerning the slaughter, their testimony about the theft remains valid. Consequently, the thief pays the double payment, and the witnesses pay a twofold or threefold payment for having attempted to cause the thief to pay this amount, which is the fine for slaughter or sale beyond his double payment.


ืืžืจ ืจื‘ื™ ื™ื•ืกื™ ื‘ืžื” ื“ื‘ืจื™ื ืืžื•ืจื™ื ื‘ืฉืชื™ ืขื“ื™ื•ืช ืื‘ืœ ื‘ืขื“ื•ืช ืื—ืช ืขื“ื•ืช ืฉื‘ื˜ืœื” ืžืงืฆืชื” ื‘ื˜ืœื” ื›ื•ืœื”


The baraita continues: Rabbi Yosei said: In what case is this statement said? It is said when the theft and the slaughter were established by two separate testimonies. But if these matters were established by one single testimony, then even if they were rendered conspiring witnesses with regard to the testimony concerning the slaughter, the halakha is in accordance with the principle that testimony that was partially invalidated is entirely invalidated. When the testimony concerning the slaughter is invalidated the testimony concerning the theft is likewise negated, and the alleged thief is not required to pay the double payment. This concludes the baraita.


ืžืื™ ื‘ืฉืชื™ ืขื“ื™ื•ืช ื•ืžืื™ ื‘ืขื“ื•ืช ืื—ืช ืื™ืœื™ืžื ื‘ืฉืชื™ ืขื“ื™ื•ืช ื‘ืฉืชื™ ืขื“ื™ื•ืช ืžืžืฉ ื‘ืฉืชื™ ื›ืชื•ืช ื‘ืขื“ื•ืช ืื—ืช ื‘ื›ืช ืื—ืช ื‘ื–ื” ืื—ืจ ื–ื”


The Gemara analyzes Rabbi Yoseiโ€™s statement. What did Rabbi Yosei mean when he said: By two separate testimonies, and what did he mean when he said: By one single testimony? If we say that the phrase: By two separate testimonies, means literally by two separate testimonies, i.e., by two separate sets of witnesses, one of which testifies concerning the theft while the other testifies concerning the slaughter, this would mean that the expression: By one single testimony, means by one set of witnesses that testifies to both the theft and the slaughter, one matter after the other.


ื•ืืžืจ ืจื‘ื™ ื™ื•ืกื™ ื‘ืขื“ื•ืช ืื—ืช ื‘ื›ืช ืื—ืช ื‘ื–ื” ืื—ืจ ื–ื” ื›ื™ ืžืกื”ื“ื™ ืื’ื ื™ื‘ื” ื•ื”ื“ืจ ืžืกื”ื“ื™ ืื˜ื‘ื™ื—ื” ื›ื™ ืžืชื–ืžื™ ืื˜ื‘ื™ื—ื” ืขื“ื•ืช ืฉื‘ื˜ืœื” ืžืงืฆืชื” ื‘ื˜ืœื” ื›ื•ืœื” ื•ืื™ืชื–ืžื• ืœื”ื• ืื’ื ื™ื‘ื” ืžื”ื™ื›ื ืชื™ืชื™ ื”ืš


And if so, when Rabbi Yosei then says that the facts are established by one testimony, he meant one set of witnesses testifying about both matters, one matter after the other, i.e., that they testify concerning the theft and then testify concerning the slaughter. Therefore, when they are rendered conspiring witnesses only with regard to the slaughter, the halakha is determined in accordance with the principle that testimony that was partially invalidated is entirely invalidated. And consequently Rabbi Yosei would maintain that they are considered to have been rendered conspiring witnesses concerning the theft as well. The Gemara asks: From where would this be derived? Why should the earlier testimony about the theft be negated by their status as conspiring witnesses from the later testimony concerning the slaughter?


ืืœื ืœืื• ื‘ืฉืชื™ ืขื“ื™ื•ืช ื‘ืขื“ื•ืช ืื—ืช ื›ืขื™ืŸ ืฉืชื™ ืขื“ื™ื•ืช ื•ืžืื™ ื ื™ื ื”ื• ื›ืช ืื—ืช ื‘ื–ื” ืื—ืจ ื–ื” ืื‘ืœ ื‘ืขื“ื•ืช ืื—ืช ื‘ื‘ืช ืื—ืช ืœื


Rather, is it not the case that when Rabbi Yosei said: By two testimonies, he meant: By a single testimony that is similar to two testimonies. And what is that? It is one set of witnesses who testify about both the theft and the slaughter, one matter after the other, at two separate times. But if these matters were established by one single testimony, when the witnesses testified about both matters at the same time, Rabbi Yosei concedes that these are not considered two separate testimonies, despite the fact that they refer to two different events.


ื•ืกื‘ืจื•ื” ื“ื›ื•ืœื™ ืขืœืžื ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™


The Gemara continues to analyze the dispute between Rabbi Yosei and the Rabbis: The amoraโ€™im discussing this matter assumed that according to everyone, i.e., both Rabbi Yosei and the Rabbis, if a witness pauses briefly in his testimony and then continues to testify, it is considered one long testimony. This is in accordance with the principle that the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech. Therefore, the two testimonies, the one concerning the theft and the one concerning the slaughter, are considered a single testimony.


ืžืื™ ืœืื• ื‘ื”ื ืงืžื™ืคืœื’ื™ ื“ืจื‘ื ืŸ ืกื‘ืจื™ ืžื›ืืŸ ื•ืœื”ื‘ื ื”ื•ื ื ืคืกืœ ื•ื›ื™ื•ืŸ ื“ืžื”ื”ื™ื ืฉืขืชื ืงื ืžื™ืชื–ืžื™ ืื˜ื‘ื™ื—ื” ื“ืงื ืžื™ืชื–ืžื™ ืื™ืชื–ื•ื ืื’ื ื™ื‘ื” ื“ืœื ืžื™ืชื–ืžื™ ืœื ืื™ืชื–ื•ื


The Gemara asks with regard to the above: What, is it not with regard to this that Rabbi Yosei and the Rabbis disagree? As the Rabbis maintain, like Rava, that a conspiring witness is disqualified from here on, i.e., from when he is rendered a conspiring witness. And since it was only from that time, when the other witnesses testify about them, that they are rendered conspiring witnesses, it is only with regard to their testimony concerning the animalโ€™s slaughter that they are rendered conspiring witnesses, whereas concerning the theft itself they are not rendered conspiring witnesses.


ืจื‘ื™ ื™ื•ืกื™ ืกื‘ืจ ืœืžืคืจืข ื”ื•ื ื ืคืกืœ ื•ื›ื™ื•ืŸ ื“ืžื™ื“ ื›ื™ ืืกื”ื™ื“ื• ื”ื•ื ื“ืžื™ืคืกืœื™ ืื™ ืื™ืชื–ืžื• ืœื”ื• ืื˜ื‘ื™ื—ื” ืื™ืชื–ืžื• ืœื”ื• ื ืžื™ ืื’ื ื™ื‘ื” ื“ื”ื ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™


And Rabbi Yosei holds, like Abaye, that a conspiring witness is disqualified retroactively, from when he provided his testimony. And consequently, since they are disqualified immediately when they testify, if they are rendered conspiring witnesses concerning the slaughter they are rendered conspiring witnesses concerning the theft as well, as the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech, i.e., the two testimonies are considered one unit.


ืืžืจื™ ืื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ื“ื›ื•ืœื™ ืขืœืžื ืœืžืคืจืข ื”ื•ื ื ืคืกืœ ืืœื ื”ื›ื ื‘ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ืงื ืžื™ืคืœื’ื™ ืจื‘ื ืŸ ืกื‘ืจื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ


The Sages say, in rejection of this opinion: If it were accepted that the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech, everyone would agree that the witnesses are disqualified retroactively, and their testimony with regard to the theft would also be negated. But here they disagree about that very issue, i.e., whether the legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech. The Rabbis maintain that if the pause is within the time required for speaking a short phrase, then the two aspects of the testimony provided by the witnesses


ืœืื• ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ื•ืจื‘ื™ ื™ื•ืกื™ ืกื‘ืจ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™


are not like one testimony of continuous speech, but are considered separate testimonies, and therefore the testimony concerning the theft remains valid. And Rabbi Yosei maintains that the legal status of a pause within the time required for speaking a short phrase is like that of continuous speech, and therefore the testimony about the theft is disqualified together with the testimony concerning the slaughter.


ื•ืกื‘ืจ ืจื‘ื™ ื™ื•ืกื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื›ื“ื™ื‘ื•ืจ ื“ืžื™ ื•ื”ืชื ืŸ ื”ืจื™ ื–ื• ืชืžื•ืจืช ืขื•ืœื” ืชืžื•ืจืช ืฉืœืžื™ื ื”ืจื™ ื–ื• ืชืžื•ืจืช ืขื•ืœื” ื“ื‘ืจื™ ืจื‘ื™ ืžืื™ืจ


The Gemara asks: But does Rabbi Yosei really maintain that the legal status of a statement interrupted or retracted within the time required for speaking a short phrase is like that of continuous speech? But didnโ€™t we learn otherwise in a mishna (Temura 25b): If one designates an animal by saying: This animal is hereby a substitute for a burnt-offering, a substitute for a peace-offering, he has issued two contradictory statements and therefore this animal is considered a substitute for a burnt-offering, i.e., only the first part of his statement is accepted. This is the statement of Rabbi Meir.


ืจื‘ื™ ื™ื•ืกื™ ืื•ืžืจ ืื ืœื›ืš ื ืชื›ื•ื•ืŸ ืžืชื—ื™ืœื” ื”ื•ืื™ืœ ื•ืื™ ืืคืฉืจ ืœืงืจื•ืช ืฉื ื™ ืฉืžื•ืช ื›ืื—ื“ ื“ื‘ืจื™ื• ืงื™ื™ืžื™ืŸ ื•ืื ืืžืจ ืชืžื•ืจืช ืขื•ืœื” ื•ื ืžืœืš ื•ืืžืจ ืชืžื•ืจืช ืฉืœืžื™ื ื”ืจื™ ื–ื• ืชืžื•ืจืช ืขื•ืœื”


Rabbi Yosei says: If he intended this outcome from the outset, that the animal should serve both as the substitute of a burnt-offering and as the substitute of a peace-offering, since it is impossible for one to call it by two names at once, i.e., the only way he can make his intent known is by issuing these two apparently contradictory declarations consecutively, his statement stands, and the animal has the status of both a substitute for a burnt-offering and a substitute for a peace-offering. But if he said: This animal is a substitute for a burntoffering and then changed his mind and said: A substitute for a peace-offering, it is a substitute for a burnt-offering.


ื•ื”ื•ื™ื ืŸ ื‘ื” ื ืžืœืš ืคืฉื™ื˜ื


And we discussed this ruling: If he changed his mind before saying: A substitute for a peace-offering, it is obvious that he cannot remove the status he already applied to the animal, and the animal certainly remains a substitute for a burnt-offering. Rabbi Yosei would not have issued such an obvious ruling.


ื•ืืžืจ ืจื‘ ืคืคื ื ืžืœืš ื‘ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ืงืืžืจื™ื ืŸ


And Rav Pappa said in response to this question: We are speaking of a case where the individual changed his mind within the time required for speaking a short phrase. Rabbi Yosei holds that when one adds to a statement after a pause, even if the addition was made within a short time, it is considered a separate statement, which does not reverse the initial declaration. This contradicts the explanation given for the baraita cited above, according to which Rabbi Yosei maintains that when one adds to an existing statement within the time required for speaking a short phrase it is considered continuous speech.


ืืžืจื™ ืชืจื™ ืชื•ืš ื›ื“ื™ ื“ื™ื‘ื•ืจ ื”ื•ื™ ื—ื“ ื›ื“ื™ ืฉืื™ืœืช ืชืœืžื™ื“ ืœืจื‘ ื•ื—ื“ ื›ื“ื™ ืฉืื™ืœืช ื”ืจื‘ ืœืชืœืžื™ื“ ื›ื™ ืœื™ืช ืœื™ื” ืœืจื‘ื™ ื™ื•ืกื™ ื›ื“ื™ ืฉืื™ืœืช ืชืœืžื™ื“ ืœืจื‘ ืฉืœื•ื ืขืœื™ืš ืจื‘ื™ ื•ืžื•ืจื™ ื“ื ืคื™ืฉ ื›ื“ื™ ืฉืื™ืœืช ื”ืจื‘ ืœืชืœืžื™ื“ ืฉืœื•ื ืขืœื™ืš ืื™ืช ืœื™ื”


The Sages say in response: There are two time frames that are referred to as being within the time required for speaking a short phrase. One is the time required for a student to greet a rabbi, and the other one is the time required for the rabbi to greet a student. When does Rabbi Yosei hold that a statement added within the time required for speaking a short phrase is not considered continuous speech? When the words are added within the time required for a student to greet his rabbi using the phrase: Peace be upon you, my rabbi and teacher, as that is a long pause. By contrast, if the statement is added within the shorter time frame required for the rabbi to greet his student: Peace be upon you, Rabbi Yosei is of the opinion that the added words constitute speech that is continuous with the original statement.


ืืžืจ ืจื‘ื ืขื“ื™ื ืฉื”ื•ื›ื—ืฉื• ื•ืœื‘ืกื•ืฃ ื”ื•ื–ืžื• ื ื”ืจื’ื™ืŸ ื“ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื ืืœื ืฉืœื ื ื’ืžืจื”


ยง Rava says: Witnesses to a capital crime who were first contradicted by two other witnesses, and ultimately they, the first set of witnesses, were rendered conspiring witnesses, are killed, in accordance with the punishment for conspiring witnesses involved in a capital case, despite the fact that their testimony was already disqualified prior to the discovery of their conspiracy. The reason is that the contradiction of testimony is the start of determining that testimony is conspiring testimony, only the process has not yet been completed at the time of the contradiction.


ืืžืจ ืจื‘ื ืžื ื ืืžื™ื ื ืœื” ื“ืชื ื™ื ืžืขื™ื“ื ื™ ื‘ืื™ืฉ ืคืœื•ื ื™ ืฉืกื™ืžื ืืช ืขื™ืŸ ืขื‘ื“ื• ื•ื”ืคื™ืœ ืืช ืฉื™ื ื• ืฉื”ืจื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืขื‘ื“


Rava said: From where do I say that this is so? As it is taught in a baraita (Tosefta, Makkot 1:3) that if witnesses say: We testify with regard to so-and-so that he blinded his Canaanite slaveโ€™s eye and afterward knocked out his tooth, and therefore the master is obligated to pay him compensation for the value of his tooth, as that is what the master says, i.e., this testimony is advantageous to the master, and subsequently they were found to be conspiring witnesses, they pay the value of an eye to the slave.


ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ื›ื“ืงืชื ื™ ื“ืœื™ื›ื ื›ืช ืื—ืจื™ื ื ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืขื‘ื“ ื‘ืชืจ ื“ืžืคืงื™ ืœื™ื” ืœื—ื™ืจื•ืช ื“ืžื™ ืขื™ื ื• ืงื‘ืขื™ ืฉืœื•ืžื™


Rava explains that the baraita as written is problematic: What are the circumstances of this case? If we say that it is exactly as it is taught in the baraita, i.e., that there is no other set of witnesses other than those whose statement is quoted in the baraita and the opposing set of witnesses who establish them as conspiring witnesses, several problems arise: First, why should they pay the value of an eye to the slave? After emancipating him by testifying that his master has blinded him, should they be required to pay him the value of his eye?


ื•ืขื•ื“ ื“ืžื™ ื›ื•ืœื™ื” ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืœืฉืœื•ืžื™ ื•ืขื•ื“ ืฉื”ืจื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ ื”ืจื‘ ืžื™ ื ื™ื—ื ืœื™ื”


And furthermore, they should be required to pay the value of the entire slave to the master, as they intended to cause him to lose ownership of his slave through their false testimony. And furthermore, why does the baraita say: As that is what the master says, i.e., this testimony is advantageous to the master. Is it really satisfactory to the master that his slave be emancipated as a result of this testimony?


ืืœื ืœืื• ื›ื’ื•ืŸ ื“ืืชื• ื‘ื™ ืชืจื™ ื•ืืžืจื™ ื”ืคื™ืœ ืืช ืฉื™ื ื• ืกื™ืžื ืืช ืขื™ื ื• ื“ื‘ืขื™ ืžื™ืชื™ื‘ ืœื™ื” ื”ืจื‘ ื“ืžื™ ืขื™ื ื• ื•ืืชื• ื‘ื™ ืชืจื™ ืžืฆื™ืขืื™ ื•ืืžืจื™ ืขื™ื ื• ื•ื”ื“ืจ ืฉื™ื ื• ื“ืœื ื‘ืขื™ ืœืžื™ืชื‘ ืœื™ื” ืืœื ื“ืžื™ ืฉื™ื ื• ื“ืงื ืžื›ื—ืฉื™ ืœื™ื” ืงืžืื™ ืœืžืฆื™ืขืื™


Rather, it must be that this case involves another, competing, testimony that is not mentioned in the baraita. Is it not correct to say that the baraita is dealing with a case where prior to the testimonies mentioned in the baraita two other witnesses came and said: The master first knocked out the slaveโ€™s tooth and then blinded his eye, in which case the master is required to emancipate the slave and also to give him the value of his eye; and then an intermediate set of two witnesses came and said the testimony quoted in the baraita, that first the master blinded the slaveโ€™s eye and then knocked out his tooth? According to this account the master would still be required to emancipate the slave, but he would be required to give him only the value of his tooth, which is much less than the value of an eye. In this case the testimony of the first set of witnesses contradicts the testimony of the intermediate ones.


ื•ื”ื™ื™ื ื• ืฉื”ืจื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ ื“ื ื™ื—ื ืœื™ื” ื‘ืžืื™ ื“ืงืืžืจื™


And this is the meaning of the clause: As that is what the master says, i.e., this testimony is advantageous to the master. It means that what the intermediate witnesses say, i.e., that he owes the value of a tooth, is satisfactory to him, as according to the claim of the first set, he owes the value of an eye. Since there are now contradictory testimonies, the testimony stating the claim of a loss of lesser value is accepted, and in that case the master would have to pay the slave only for the value of his tooth, in addition to emancipating him. This judgment corresponds exactly to the testimony of the intermediate set of witnesses.


ื•ืงืชื ื™ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฆื™ืขืื™ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืขื‘ื“


And the baraita subsequently teaches: And then the intermediate set of witnesses were found to be conspiring witnesses, as a third set of witnesses testified that the intermediate set was not at the scene of the incident at all. Therefore, the intermediate set of witnesses pays the value of an eye to the slave less the value of a tooth, as this is the amount of monetary damage the slave stood to incur as a result of their testimony.


ืฉืžืข ืžื™ื ื” ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื


Rava concludes his proof: Learn from the baraita that the contradiction of testimony is the start of determining that testimony is conspiring testimony. Although the testimony of the intermediate set of witnesses had already been contradicted before it was shown to be conspiring testimony, nevertheless, they can still be established as conspiring witnesses at that later stage, which means that they must pay an amount equivalent to the loss they were attempting to cause through their testimony.


ืืžืจ ืื‘ื™ื™ ืœื


Abaye said: No. There is another possible interpretation for the baraita, which answers the questions raised above and yet does not serve as proof for Ravaโ€™s opinion. According to this interpretation, the contradictory testimony was given after, not before, the testimony mentioned in the baraita.


ื“ืืคื›ื™ื ื”ื• ื•ืื–ืžื™ื ื”ื•


It is possible that the baraita is discussing a case where a second set of witnesses both reversed the order of events, by testifying that the tooth was knocked out before the blinding of the eye, and at the same time rendered the first set witnesses as conspiring witnesses, by testifying that those original witnesses were not at the scene of the supposed events they claimed to have witnessed. It can be argued, albeit in a far-fetched manner, that the testimony of the first set of witnesses is considered to be to the masterโ€™s advantage even at this stage, because he knows what really happened, as reflected in the testimony of the later witnesses. Accordingly, Rava maintains that there are a total of three sets of witnesses in the case of the baraita, while Abaye says that there are only two sets.


ืžืžืื™


Abaye elaborates: From where do I say that my interpretation of the baraita is correct?


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