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January 15, 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 74

Rava and Abaye disagree on the understanding of a braita, which causes them to disagree about whether witnesses contradicted in court can later be convicted of being eidim zomemim. Rabbi Elazar and Rabbi Yochanan also debated the same issue. The next Mishna brings cases where the thief will not be charged payments of four/five times. From the beginning of the Mishna one can infer that if one confesses (which would exempt them from the four/five payment as it is a penalty) and then witnesses come later, they would be liable to pay the four/five payment. This goes against Rav Huna who states in the name of Rav that once one admits to it in court, they will be exempt, even if witnesses come to court later.

 

ืžื“ืกื™ืคื ื‘ืžื™ืคืš ื•ื”ื–ืžื” ืจื™ืฉื ื ืžื™ ื‘ืžื™ืคืš ื•ื”ื–ืžื”


From the fact that the latter clause of the baraita states a ruling with regard to a case in which the second set of witnesses both reverses the order of events and renders the first pair as conspiring witnesses, it may be inferred that the first case as well, in parallel fashion, states a ruling with regard to a case in which the second set of witnesses both reverses the order of events and renders the first pair as conspiring witnesses.


ื“ืงืชื ื™ ืกื™ืคื ืžืขื™ื“ื ื• ืืช ืื™ืฉ ืคืœื•ื ื™ ืฉื”ืคื™ืœ ืืช ืฉืŸ ืขื‘ื“ื• ื•ืกื™ืžื ืืช ืขื™ื ื• ืฉื”ืจื™ ื”ืขื‘ื“ ืื•ืžืจ ื›ืŸ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืจื‘


This is as it teaches in the latter clause of the baraita, that if witnesses say: We testify with regard to so-and-so that he knocked out his Canaanite slaveโ€™s tooth and afterward blinded his eye, which requires the master to emancipate him and compensate him for the value of his eye, as that is what the slave says, i.e., this testimony is advantageous to the slave, and subsequently they were found to be conspiring witnesses, they pay the value of an eye to the master.


ื”ื™ื›ื™ ื“ืžื™ ืื™ ื“ืœื ืงื ืžื•ื“ื• ืœื”ื• ื‘ืชืจืื™ ื‘ื—ื‘ืœื ื›ืœืœ ื“ืžื™ ื›ื•ืœื™ื” ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืฉืœื•ืžื™ ืœื™ื”


Abaye analyzes this clause of the baraita: What are the circumstances of this case? If it is speaking of a situation where the latter set of witnesses, who attested that the first set of witnesses were conspiring witnesses, do not concede that there was any injury at all inflicted on the slave by his master, then there is no testimony to confirm that those injuries were inflicted other than that given by the witnesses who were shown to be conspiring witnesses. Consequently, they should be required to pay the entire value of the slave to the master, as this is the amount of monetary damage the master stood to incur as a result of their false testimony.


ืืœื ืคืฉื™ื˜ื ื“ืงื ืžื•ื“ื• ื›ื•ืœื”ื• ื‘ื—ื‘ืœื


Rather, it is obvious that all of them, i.e., both the first set of witnesses and the latter set, concede with regard to the injury inflicted on the slave by the master. They both agree that the master both blinded the slaveโ€™s eye and knocked out his tooth and therefore is obligated to emancipate him. They disagree concerning only the order of events. The first set of witnesses said that the tooth injury occurred first and the eye injury occurred afterward. Consequently, they sought to require the master to emancipate the slave and compensate him for the eye injury.


ื•ื“ืงื ืืคื›ื™ื ืŸ ื•ืื–ืžื™ื ื”ื•


And the second set of witnesses reversed the order of events in their testimony, saying that the eye injury took place first, and in the same testimony, they rendered the first pair conspiring witnesses, by testifying that they were not present when the events occurred. Since the latter clause of the baraita must be interpreted in this manner, it stands to reason that the first case should be explained similarly.


ื•ื”ื™ื›ื™ ื“ืžื™ ืื™ ื“ืงื ืžืื—ืจื™ ืื—ื•ืจื™ ื”ื ื™ ื‘ืชืจืื™ ืื›ืชื™ ื“ืžื™ ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืฉืœื•ืžื™


The Gemara analyzes Abayeโ€™s interpretation of the baraita: And what are the circumstances of the case? The second set of witnesses, who are deemed credible, have established that the injuries did not take place on the date reported by the first set of witnesses. According to their testimony, when did the injuries take place? If the latter witnesses postdated the events, by testifying that the injuries were actually inflicted at a later stage than that mentioned by the first set of witnesses, the first set of witnesses should still be required to pay the full value of a slave to the master.


ื“ื›ื™ ืžื—ื™ื™ื‘ื™ ืœื™ื” ืœื’ื‘ืจื ืื›ืชื™ ื’ื‘ืจื ืœืื• ื‘ืจ ื—ื™ื•ื‘ื ื”ื•ื ืืœื ื“ืงื ืžืงื“ืžื™ ืงื“ื•ืžื™ ื”ื ื™ ื‘ืชืจืื™


The reason the first set of witnesses should be liable is that when they sought to impose liability upon the man, i.e., the master, this man was not yet burdened with any liability. When the first set of witnesses testified about the injuries, the master was not yet obligated to emancipate his slave or pay damages. Therefore, these conspiring witnesses should be required to pay these sums, which they had sought to impose on the master. Rather, it must be that the latter set of witnesses predated the time of the injuries, by testifying that they were inflicted at an earlier date than that attested to by the first set of witnesses.


ื•ืื™ ื“ืœื ืขืžื“ ื‘ื“ื™ืŸ ืื›ืชื™ ื“ืžื™ ื›ื•ืœื™ื” ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืฉืœื•ืžื™ ืœื™ื” ื“ืื›ืชื™ ื’ื‘ืจื ืœื ืžื™ื—ื™ื™ื‘


The Gemara continues to analyze the case: And if the baraita is referring to a case where the master had not yet stood trial for having injured his slave when the first set of witnesses submitted their testimony, those witnesses should still be required to pay the entire value of the slave to the master, as at the time of their testimony the man, i.e., the master, was not yet liable. The first set of witnesses sought to render the master liable at a time when he was exempt from liability, and therefore they should be obligated to pay him the full value of the slave.


ืืœื ื“ืขืžื“ ื‘ื“ื™ืŸ


Rather, it must be that the master had already stood trial for having inflicted these injuries, and had been sentenced by the court to emancipate the slave for the first injury and pay him for the second injury. Then, the master evaded payment, and was subsequently brought before another court, where witnesses testified that the first court had established liability for knocking out the tooth first and then blinding the slaveโ€™s eye. This testimony was subsequently rendered conspiring testimony by a second set of witnesses, who testified both that the first set of witnesses was not at the scene of the first trial and that the results of the trial were actually reversed, i.e., the masterโ€™s liability was for blinding the eye first and then for knocking out the tooth. Since the first set of witnesses, who were rendered conspiring witnesses, sought to increase the masterโ€™s liability payment from that of the value of a tooth to that of an eye, they must pay the value of an eye to the master.


ืืžืจ ืœื™ื” ืจื‘ ืื—ื ื‘ืจื™ื” ื“ืจื‘ ืื™ืงื ืœืจื‘ ืืฉื™ ื“ื•ืงื™ื ื“ืจื‘ื ืžื”ื™ื›ื ืื™ืœื™ืžื ืžืจื™ืฉื ืจื™ืฉื ืžื™ ืงื ืžืชื›ื—ืฉื™ ืžืฆื™ืขืื™


Rava sought to infer from this baraita to his opinion that contradiction of testimony is the start of determining that testimony is conspiring testimony. Rav Aแธฅa, son of Rav Ika, said to Rav Ashi: From which case in the baraita is the inference of Rava? If we say that his inference is from the first clause, this is difficult. In the case of the first clause, if it involves three sets of witnesses, as claimed by Rava, is the intermediate set of witnesses contradicted and rejected before they are established as conspiring witnesses? The first set of witnesses testified that the eye injury took place after the tooth injury, whereas the intermediate set of witnesses reversed the order. If so, the intermediate set of witnesses sought to lower the masterโ€™s payment from the value of an eye to that of a tooth.


ื›ื™ื•ืŸ ื“ืื™ ืœื ืžืชื–ืžื™ ืกื”ื“ื•ืชื ื›ื•ื•ืชื™ื™ื”ื• ืงื ืงื™ื™ืžื ื“ื“ื™ื ื ื›ื•ื•ืชื™ื™ื”ื• ืคืกืงื™ื ืŸ ื“ื™ืฉ ื‘ื›ืœืœ ืžืืชื™ื ืžื ื”


Rav Aแธฅa continues: Since if the second set of witnesses would not have been rendered conspiring witnesses, the testimony would have been established in accordance with their statement, as the judgment would have been decided in accordance with their testimony. The reason their testimony would have determined the ruling is that one hundred dinars is subsumed within two hundred, i.e., testimony concerning a large sum includes testimony concerning a smaller sum.


ื”ืœื›ืš ืงืžืื™ ื”ื•ื ื“ืงื ืžืชื›ื—ืฉื™ ืžืฆื™ืขืื™ ืœื ืžืชื›ื—ืฉื™ ืžื™ื“ื™


Rav Aแธฅa continues: Therefore, it is the first set of witnesses, who testified that the eye injury occurred last, whose testimony would be considered contradicted and rejected, whereas the testimony of the intermediate set of witnesses would not be considered contradicted at all, as it is accepted in full. If so, this is not a case of witnesses who were rejected due to contradiction and then subsequently rendered conspiring witnesses.


ืืžืจ ืœื™ื” ืจื‘ื ืกื‘ืจ ืžื“ืจื™ืฉื ื‘ืฉืœืฉ ื›ื™ืชื•ืช ืกื™ืคื ื ืžื™ ื‘ืฉืœืฉ ื•ื“ื™ื™ืง ืžืกื™ืคื


Rav Ashi said to Rav Aแธฅa in response: Rava maintains that from the fact that the ruling of the first clause of the baraita is stated with regard to a case involving three sets of witnesses, it is logical to assume that the ruling of the latter clause is also stated with regard to a case involving three sets of witnesses, and Rava infers his ruling from the latter clause.


ื›ื’ื•ืŸ ื“ืืชื• ื‘ื™ ืชืจื™ ื•ืืžืจื™ ื”ืคื™ืœ ืืช ืฉื™ื ื• ื•ืกื™ืžื ืขื™ื ื• ื•ืคืกืงื™ื ื™ื” ืœื“ื™ื ื ืืคื•ืžื™ื™ื”ื•


Rava explains that the latter clause is referring to a case where two witnesses, i.e., the ones mentioned in the baraita, come and say: The master knocked out the slaveโ€™s tooth and afterward blinded his eye, and the court ruled its judgment in accordance with their statement, obligating the master to emancipate his slave and compensate him for the value of his eye.


ื•ืืชื• ื‘ื™ ืชืจื™ ืื—ืจื™ื ื™ ื•ืืžืจื™ ืกื™ืžื ืืช ืขื™ื ื• ื•ื”ืคื™ืœ ืืช ืฉื™ื ื• ื“ืงื ืžื›ื—ืฉื™ ืœื”ื• ืœื”ื ื™ ืงืžืื™ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืงืžืื™ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืจื‘


And subsequently two other witnesses, who were not mentioned in the baraita, come and say that the events were reversed: First the master blinded his slaveโ€™s eye and then he knocked out his tooth, so that they contradict the testimony of those first witnesses. At this point the master is obligated to emancipate his slave and pay him only the value of his tooth, as this much was required of him according to both sets of witnesses. And then the first pair were found to be conspiring witnesses. Therefore, as the baraita states, the first set of witnesses pays the value of an eye to the master, less the value of a tooth.


ื•ืื™ ืกืœืงื ื“ืขืชืš ื”ื›ื—ืฉื” ืœืื• ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื ืืžืื™ ืžืฉืœืžื™ ื”ื ืืชื›ื—ืฉื• ืœื”ื• ืžืขื™ืงืจื ืืœื ืฉืžืข ืžื™ื ื” ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื


Rava reaches his conclusion based on the following reasoning: And if it enters your mind that the contradiction of testimony is not the start of determining that testimony is conspiring testimony, and witnesses who were first contradicted and then rendered conspiring witnesses are not punished as conspiring witnesses, why must these witnesses pay? They were already contradicted from the outset, before they were shown to be conspiring witnesses. Rather, conclude from the latter clause of the baraita that the contradiction of testimony is the start of determining that testimony is conspiring testimony.


ื•ืื‘ื™ื™ ืืžืจ ืœืš ื‘ืฉืœืžื ืจื™ืฉื ืœื ืกื’ื™ ื“ืœื ืฉืœืฉ ื›ื™ืชื•ืช ืฉื”ืจื™ ืงืชื ื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ


And how could Abaye, who disagrees with Rava, refute this proof? He could say to you: Granted, it is impossible to interpret the first clause without the supposition that there are three sets of witnesses involved. The reason is that it is taught with regard to that first clause: As that is what the master says, i.e., this testimony is satisfactory to the master. The only testimony recorded in the baraita is that the master blinded the slaveโ€™s eye and then knocked out his tooth. Why would this be considered satisfactory to the master? It must therefore be assumed that this testimony was preceded by another one that was even less advantageous to the master. That testimony confirmed the injuries but placed the eye injury after the tooth injury, which involves greater liability for the master. Finally, a third set of witnesses must have arrived and rendered the intermediate set as conspiring witnesses, so that there are a total of three sets of witnesses.


ืืœื ืกื™ืคื ืœืžื” ืœื™ ืฉืœืฉ ื›ื™ืชื•ืช ืฉื”ืจื™ ื”ืขื‘ื“ ืื•ืžืจ ื›ืŸ


But with regard to the latter clause, why do I need to explain it as referring to three sets of witnesses? If you say that it is because the baraita states concerning this case: As that is what the slave says, i.e., this testimony is satisfactory to the slave, this does not prove that there is another testimony, not mentioned in the baraita, that is less favorable to the slave than this one.


ืขื‘ื“ ื›ืœ ื“ื”ื• ืžื™ืžืจ ืืžืจ ื“ื ื™ื—ื ืœื™ื” ื“ื ื™ืคื•ืง ืœื—ื™ืจื•ืช


The reason is that a slave would say anything, i.e., any form of testimony would be favorable to him, as it is satisfactory for him that he should be emancipated. The courtโ€™s acceptance of testimony confirming either order of events would result in his emancipation from slavery, and therefore both testimonies are satisfactory to him. Although there is a compelling reason to posit the existence of three sets of witnesses in the first clause, there is no justification to do so in the second clause, and therefore it should be explained as did Abaye, as discussing only two sets of witnesses.


ืžืชืงื™ืฃ ืœื” ืจื‘ื™ ื–ื™ืจื ืื™ืžื ืกื™ืžื ืืช ืขื™ื ื•


Rabbi Zeira objects to the basic assumption of the baraita that when a master inflicts two injuries upon his Canaanite slave he must indemnify the slave for the second injury. One can say instead that if the master blinded his slaveโ€™s eye,


ื ื™ืคื•ืง ื‘ืขื™ื ื• ื”ืคื™ืœ ืืช ืฉื™ื ื• ื ื™ืคื•ืง ื‘ืฉื™ื ื• ืกื™ืžื ืืช ืขื™ื ื• ื•ื”ืคื™ืœ ืืช ืฉื™ื ื• ื ื™ืคื•ืง ื‘ืขื™ื ื• ื•ืฉื™ื ื•


the slave should go free on account of his eye, and if he knocked out his tooth he should go free on account of his tooth, and if the master both blinded his eye and knocked out his tooth, the slave should go free on account of both his eye and his tooth, without the master having to pay damages for the loss of his tooth.


ืืžืจ ืื‘ื™ื™ ืขืœื™ืš ืืžืจ ืงืจื ืชื—ืช ืขื™ื ื• ื•ืœื ืชื—ืช ืขื™ื ื• ื•ืฉื™ื ื• ืชื—ืช ืฉื™ื ื• ื•ืœื ืชื—ืช ืฉื™ื ื• ื•ืขื™ื ื•


Abaye said to him in response: With regard to your claim, the verse states: โ€œAnd if a man smites the eye of his slave or the eye of his maidservant and destroys it, he shall let him go free for his eyeโ€™s sakeโ€ (Exodus 21:26). The phrase โ€œfor his eyeโ€™s sakeโ€ indicates: But not for the sake of both his eye and his tooth. The same can be inferred from the subsequent verse: โ€œAnd if he smites out his bondmanโ€™s tooth or his bondwomanโ€™s tooth, he shall let him go free for his toothโ€™s sakeโ€ (Exodus 21:27). The phrase โ€œfor his toothโ€™s sakeโ€ indicates: But not for the sake of both his eye and his tooth.


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


The Gemara returns to Ravaโ€™s opinion that the contradiction of testimony is the start of determining that testimony is conspiring testimony. Rav Idi bar Avin said: We too can learn from the mishna that Ravaโ€™s claim is correct, as it teaches (72b): If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently 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 must pay everything, i.e., not only the principal amount but also the fourfold or fivefold payment.


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


What, is it not referring to a case where they testified concerning the theft and then testified concerning the slaughter, and they were subsequently rendered conspiring witnesses with regard to the theft and then were rendered conspiring witnesses with regard to the slaughter?


ื•ื”ื ื›ื™ื•ืŸ ืฉื”ื•ื–ืžื• ืขืœ ื”ื’ื ื™ื‘ื” ืœื’ื‘ื™ ื˜ื‘ื™ื—ื” ื”ื•ื” ืœื”ื• ืžื•ื›ื—ืฉื™ืŸ ื•ืงืชื ื™ ืžืฉืœืžื™ืŸ ืœื• ืืช ื”ื›ืœ ื•ืื™ ืกืœืงื ื“ืขืชืš ื”ื›ื—ืฉื” ืœืื• ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื ืื˜ื‘ื™ื—ื” ืืžืื™ ืžืฉืœืžื™ืŸ ืืœื ืœืื• ืฉืžืข ืžื™ื ื” ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื


Rav Idi bar Avin states his inference: But once they were rendered conspiring witnesses with regard to the theft, their testimony with regard to the slaughter is in effect contradicted, i.e., nullified, as testimony concerning the slaughter of an animal without prior testimony establishing that the animal was stolen is meaningless. And yet the mishna teaches that the witnesses must pay everything. And if it enters your mind that the contradiction of testimony is not the start of determining that testimony is conspiring testimony, why should they pay a fine for lying about the slaughter? Their testimony concerning the slaughter was rendered irrelevant before it was established as conspiring testimony. Rather, must one not conclude from this mishna that the contradiction of testimony is the start of determining that testimony is conspiring testimony?


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


The Sages say in refutation of this inference: With what are we dealing here? We are dealing with a case where the witnesses were rendered conspiring witnesses with regard to the slaughter first, before they were rendered conspiring witnesses in their testimony concerning the theft itself. In this case, the testimony concerning the slaughter was not rendered irrelevant before it was rendered conspiring testimony.


ื•ื‘ืคืœื•ื’ืชื ืขื“ื™ื ืฉื”ื•ื›ื—ืฉื• ื•ืœื‘ืกื•ืฃ ื”ื•ื–ืžื• ืจื‘ื™ ื™ื•ื—ื ืŸ ื•ืจื‘ื™ ืืœืขื–ืจ ื—ื“ ืืžืจ ื ื”ืจื’ื™ืŸ ื•ื—ื“ ืืžืจ ืื™ืŸ ื ื”ืจื’ื™ืŸ


And this is a matter in the dispute between other amoraโ€™im, before Rava and Abaye discussed it. As it was stated: With regard to witnesses to a capital crime who were first contradicted by two other witnesses and ultimately were rendered conspiring witnesses, this is a matter of dispute between Rabbi Yoแธฅanan and Rabbi Elazar. One said: These witnesses are killed, like all conspiring witnesses in a capital case, as the contradiction of testimony is the start of determining that testimony is conspiring testimony, and one said: They are not killed.


ืชืกืชื™ื™ื ื“ืจื‘ื™ ืืœืขื–ืจ ื”ื•ื ื“ืืžืจ ืื™ืŸ ื ื”ืจื’ื™ืŸ ื“ืืžืจ ืจื‘ื™ ืืœืขื–ืจ ืขื“ื™ื ืฉื”ื•ื›ื—ืฉื• ื‘ื ืคืฉ ืœื•ืงื™ืŸ


The Gemara suggests: It may be concluded that it is Rabbi Elazar who says they are not killed. As Rabbi Elazar says: Witnesses who were contradicted in a case involving the taking of a life, i.e., a capital case, are flogged for violating the prohibition: โ€œYou shall not bear false witness against your neighborโ€ (Exodus 20:13).


ื•ืื™ ืกืœืงื ื“ืขืชืš ืจื‘ื™ ืืœืขื–ืจ ื”ื•ื ื“ืืžืจ ื ื”ืจื’ื™ืŸ ืืžืื™ ืœื•ืงื™ืŸ ื”ื•ื” ืœื™ื” ืœืื• ืฉื ื™ืชืŸ ืœืื–ื”ืจืช ืžื™ืชืช ื‘ื™ืช ื“ื™ืŸ ื•ื›ืœ ืœืื• ืฉื ื™ืชืŸ ืœืื–ื”ืจืช ืžื™ืชืช ื‘ื™ืช ื“ื™ืŸ ืื™ืŸ ืœื•ืงื™ืŸ ืขืœื™ื•


And if it enters your mind that it is Rabbi Elazar who says that witnesses to a capital crime who were first contradicted and ultimately found to be conspiring witnesses are killed, why are they flogged in this case? There is always the possibility that they might be rendered conspiring witnesses, which would render them liable to receive court-imposed capital punishment. Consequently, this is a case of a prohibition given as warning of liability for court-imposed capital punishment, and there is a principle that one is not flogged for violating any prohibition given as warning of liability for court-imposed capital punishment.


ืืœื ืœืื• ืฉืžืข ืžื™ื ื” ืจื‘ื™ ืืœืขื–ืจ ื”ื•ื ื“ืืžืจ ืื™ืŸ ื ื”ืจื’ื™ืŸ ืชืกืชื™ื™ื


Rather, isnโ€™t it correct to conclude from this statement that it is Rabbi Elazar who says that witnesses to a capital crime who were first contradicted and ultimately were found to be conspiring witnesses are not killed? The Gemara affirms: It may be concluded that this is so.


ืœื•ืงื™ืŸ ืชืจื™ ื•ืชืจื™ ื ื™ื ื”ื• ืžืื™ ื—ื–ื™ืช ื“ืกืžื›ืช ืื”ื ื™ ืกืžื•ืš ืื”ื ื™


The Gemara asks a question with regard to Rabbi Elazarโ€™s opinion that witnesses who were contradicted in a capital case are flogged. Why are they flogged simply because their testimony was contradicted? They are two witnesses, and they are contradicted by two other witnesses. What did you see in the testimony of the second set of witnesses that leads you to rely on those witnesses to the extent that the first set of witnesses is flogged? You could just as well rely on these witnesses, i.e., the first witnesses. How can the court ever determine with certainty that a given testimony is false based merely on contradictory testimony?


ืืžืจ ืื‘ื™ื™ ื‘ื‘ื ื”ืจื•ื’ ื‘ืจื’ืœื™ื•


Abaye said: The contradiction to which Rabbi Elazar is referring involves a case where the witnesses testified that they saw a certain person murdered, and subsequently the individual who was allegedly killed came to the court on his feet, conclusively disproving their testimony.


ืžืชื ื™ืณ ื’ื ื‘ ืขืœ ืคื™ ืฉื ื™ื ื•ื˜ื‘ื— ื•ืžื›ืจ ืขืœ ืคื™ ืขื“ ืื—ื“ ืื• ืขืœ ืคื™ ืขืฆืžื• ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ื•ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


MISHNA: If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently slaughtered or sold the stolen animal, as established based on the testimony of one witness or based on his own admission, i.e., he himself admitted that he performed these acts, without there being any witness testimony, he pays the double payment, but he does not pay the fourfold or fivefold payment.


ื’ื ื‘ ื•ื˜ื‘ื— ื‘ืฉื‘ืช ื’ื ื‘ ื•ื˜ื‘ื— ืœืขื‘ื•ื“ื” ื–ืจื” ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ืžืช ืื‘ื™ื• ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ ื’ื ื‘ ื•ื”ืงื“ื™ืฉ ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ื•ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


If one stole an animal and slaughtered it on Shabbat, which is a capital offense, or if he stole an animal and slaughtered it for the purpose of idol worship, or if he stole his fatherโ€™s animal and subsequently his father died, and afterward he slaughtered or sold it, or if he stole an animal and subsequently he consecrated it as an offering and afterward he slaughtered or sold it, in all these cases the thief pays the double payment, but he does not pay the fourfold or fivefold payment.


ืจื‘ื™ ืฉืžืขื•ืŸ ืื•ืžืจ ืงื“ืฉื™ื ืฉื—ื™ื™ื‘ ื‘ืื—ืจื™ื•ืชื ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ืฉืื™ืŸ ื—ื™ื™ื‘ ื‘ืื—ืจื™ื•ืชื ืคื˜ื•ืจ


Rabbi Shimon says: In the case of sacrificial animals for which the owner bears financial responsibility to replace with another animal if one of the original animals that one stole is lost or dies, the thief is obligated to pay the fourfold or fivefold payment if he slaughters one of the animals. If it is a sacrificial animal for which the owner bears no financial responsibility, the thief is exempt from the fourfold or fivefold payment.


ื’ืžืณ ืขืœ ืคื™ ืขื“ ืื—ื“ ืคืฉื™ื˜ื


GEMARA: The mishna teaches that if the fact that the thief slaughtered or sold the animal was established based on the testimony of one witness, he is exempt from the fourfold or fivefold payment. The Gemara asks: Isnโ€™t this obvious?


ืืžืจื™ ื”ื ืงื ืžืฉืžืข ืœืŸ ืขืœ ืคื™ ืขืฆืžื• ื“ื•ืžื™ื ื“ืขืœ ืคื™ ืขื“ ืื—ื“ ืžื” ืขืœ ืคื™ [ืขื“] ืื—ื“ ื›ื™ ืืชื™ ืขื“ ืื—ื“ ืžืฆื˜ืจืฃ ื‘ื”ื“ื™ื” ืžื™ื—ื™ื™ื‘ ืขืœ ืคื™ ืขืฆืžื• ื ืžื™ ื›ื™ ืืชื• ืขื“ื™ื ืžื™ื—ื™ื™ื‘


The Sages say in response: By stating this case, the mishna teaches us this halakha: The case of the thief slaughtering the animal established based on the testimony of one witness is similar to a case where it is established based on his own admission. Just as in the case where the slaughter is established based on the testimony of one witness, if one other witness comes and corroborates the testimony of the first, he joins together with the first witness and together their testimony is rendered a valid testimony of two, and the thief becomes obligated to pay the fourfold or fivefold payment, so too, where the slaughter is established based on his own admission, if witnesses come after his admission he becomes obligated to pay the fourfold or fivefold payment.


ืœืืคื•ืงื™ ืžื“ืจื‘ ื”ื•ื ื ืืžืจ ืจื‘ ื“ืืžืจ ืจื‘ ื”ื•ื ื ืืžืจ ืจื‘ ืžื•ื“ื” ื‘ืงื ืก ื•ืื—ืจ ื›ืš ื‘ืื• ืขื“ื™ื ืคื˜ื•ืจ


The Gemara comments: This interpretation of the mishna serves to exclude that which Rav Huna says that Rav says. As Rav Huna says that Rav says: One who admits he is liable to pay a fine is exempt from payment, even if afterward witnesses come and testify to his liability.


ื’ื•ืคื ืืžืจ ืจื‘ ื”ื•ื ื ืืžืจ ืจื‘ ืžื•ื“ื” ื‘ืงื ืก ื•ืื—ืจ ื›ืš ื‘ืื• ืขื“ื™ื ืคื˜ื•ืจ ืื™ืชื™ื‘ื™ื” ืจื‘ ื—ืกื“ื ืœืจื‘ ื”ื•ื ื ืžืขืฉื” ื‘ืจื‘ืŸ ื’ืžืœื™ืืœ ืฉืกื™ืžื ืืช ืขื™ืŸ ื˜ื‘ื™ ืขื‘ื“ื• ื•ื”ื™ื” ืฉืžื— ืฉืžื—ื” ื’ื“ื•ืœื”


Since Rav Hunaโ€™s halakha was mentioned, the Gemara discusses in detail the matter itself. Rav Huna says that Rav says: One who admits he is liable to pay a fine is exempt from payment, even if afterward witnesses come and testify to his liability. Rav แธคisda raised an objection to Rav Huna from a baraita: There was an incident involving Rabban Gamliel, who blinded the eye of his Canaanite slave Tavi, and he experienced great joy as a result. Rabban Gamliel had long wanted to emancipate Tavi, but it is generally prohibited to emancipate a Canaanite slave. The injury provided a fortuitous opportunity for Rabban Gamliel to emancipate his slave, as blinding the eye of oneโ€™s slave results in his emancipation (see Exodus 21:27).


ืžืฆืื• ืœืจื‘ื™ ื™ื”ื•ืฉืข ืืžืจ ืœื• ืื™ ืืชื” ื™ื•ื“ืข ืฉื˜ื‘ื™ ืขื‘ื“ื™ ื™ืฆื ืœื—ื™ืจื•ืช ืืžืจ ืœื• ืœืžื” ืืžืจ ืœื• ืฉืกืžื™ืชื™ ืืช ืขื™ื ื• ืืžืจ ืœื• ืื™ืŸ ื‘ื“ื‘ืจื™ืš ื›ืœื•ื ืฉื›ื‘ืจ ืื™ืŸ ืœื• ืขื“ื™ื


Rabban Gamliel encountered Rabbi Yehoshua and said to him: Do you know that my slave Tavi was emancipated? Rabbi Yehoshua said to him: Why? What circumstances enabled you to emancipate him? Rabban Gamliel said to him: I was able to do so, as I blinded his eye. Rabbi Yehoshua said to Rabban Gamliel: Your statement is nothing, and is not grounds for his emancipation, as he has no witnesses who can testify that you did this to him. The principle is that one does not pay a fine based on his own admission. One pays a fine only based on the testimony of witnesses. The requirement to emancipate oneโ€™s slave after injuring his eye is a type of fine.


ื”ื ื™ืฉ ืœื• ืขื“ื™ื ื—ื™ื™ื‘ ื•ืฉืžืขื™ื ืŸ ืžื™ื ื” ืžื•ื“ื” ื‘ืงื ืก ื•ืื—ืจ ื›ืš ื‘ืื• ืขื“ื™ื ื—ื™ื™ื‘


The Gemara infers from the baraita: But if Tavi had witnesses who could testify with regard to the injury, Rabban Gamliel would be obligated to emancipate him, even if they testify after Rabban Gamlielโ€™s admission. And we can learn from this that one who admits that he is liable to pay a fine is liable, even if afterward witnesses come and testify with regard to his liability.


ืืžืจ ืœื™ื” ืฉืื ื™ ืจื‘ืŸ ื’ืžืœื™ืืœ ื“ืœื ื‘ืคื ื™ ื‘ื™ืช ื“ื™ืŸ ืื•ื“ื™ ื•ื”ื ืจื‘ื™ ื™ื”ื•ืฉืข ืื‘ ื‘ื™ืช ื“ื™ืŸ ื”ื•ื”


Rav Huna said to Rav แธคisda: This case involving Rabban Gamliel is different, as he admitted to his actions when he was not in the presence of a court. An admission not in the presence of a court does not exempt the perpetrator from paying the relevant fine. The Gemara challenges: But Rabbi Yehoshua was the president of the court, so it is likely that the encounter took place in court.


  • 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 74

ืžื“ืกื™ืคื ื‘ืžื™ืคืš ื•ื”ื–ืžื” ืจื™ืฉื ื ืžื™ ื‘ืžื™ืคืš ื•ื”ื–ืžื”


From the fact that the latter clause of the baraita states a ruling with regard to a case in which the second set of witnesses both reverses the order of events and renders the first pair as conspiring witnesses, it may be inferred that the first case as well, in parallel fashion, states a ruling with regard to a case in which the second set of witnesses both reverses the order of events and renders the first pair as conspiring witnesses.


ื“ืงืชื ื™ ืกื™ืคื ืžืขื™ื“ื ื• ืืช ืื™ืฉ ืคืœื•ื ื™ ืฉื”ืคื™ืœ ืืช ืฉืŸ ืขื‘ื“ื• ื•ืกื™ืžื ืืช ืขื™ื ื• ืฉื”ืจื™ ื”ืขื‘ื“ ืื•ืžืจ ื›ืŸ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืจื‘


This is as it teaches in the latter clause of the baraita, that if witnesses say: We testify with regard to so-and-so that he knocked out his Canaanite slaveโ€™s tooth and afterward blinded his eye, which requires the master to emancipate him and compensate him for the value of his eye, as that is what the slave says, i.e., this testimony is advantageous to the slave, and subsequently they were found to be conspiring witnesses, they pay the value of an eye to the master.


ื”ื™ื›ื™ ื“ืžื™ ืื™ ื“ืœื ืงื ืžื•ื“ื• ืœื”ื• ื‘ืชืจืื™ ื‘ื—ื‘ืœื ื›ืœืœ ื“ืžื™ ื›ื•ืœื™ื” ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืฉืœื•ืžื™ ืœื™ื”


Abaye analyzes this clause of the baraita: What are the circumstances of this case? If it is speaking of a situation where the latter set of witnesses, who attested that the first set of witnesses were conspiring witnesses, do not concede that there was any injury at all inflicted on the slave by his master, then there is no testimony to confirm that those injuries were inflicted other than that given by the witnesses who were shown to be conspiring witnesses. Consequently, they should be required to pay the entire value of the slave to the master, as this is the amount of monetary damage the master stood to incur as a result of their false testimony.


ืืœื ืคืฉื™ื˜ื ื“ืงื ืžื•ื“ื• ื›ื•ืœื”ื• ื‘ื—ื‘ืœื


Rather, it is obvious that all of them, i.e., both the first set of witnesses and the latter set, concede with regard to the injury inflicted on the slave by the master. They both agree that the master both blinded the slaveโ€™s eye and knocked out his tooth and therefore is obligated to emancipate him. They disagree concerning only the order of events. The first set of witnesses said that the tooth injury occurred first and the eye injury occurred afterward. Consequently, they sought to require the master to emancipate the slave and compensate him for the eye injury.


ื•ื“ืงื ืืคื›ื™ื ืŸ ื•ืื–ืžื™ื ื”ื•


And the second set of witnesses reversed the order of events in their testimony, saying that the eye injury took place first, and in the same testimony, they rendered the first pair conspiring witnesses, by testifying that they were not present when the events occurred. Since the latter clause of the baraita must be interpreted in this manner, it stands to reason that the first case should be explained similarly.


ื•ื”ื™ื›ื™ ื“ืžื™ ืื™ ื“ืงื ืžืื—ืจื™ ืื—ื•ืจื™ ื”ื ื™ ื‘ืชืจืื™ ืื›ืชื™ ื“ืžื™ ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืฉืœื•ืžื™


The Gemara analyzes Abayeโ€™s interpretation of the baraita: And what are the circumstances of the case? The second set of witnesses, who are deemed credible, have established that the injuries did not take place on the date reported by the first set of witnesses. According to their testimony, when did the injuries take place? If the latter witnesses postdated the events, by testifying that the injuries were actually inflicted at a later stage than that mentioned by the first set of witnesses, the first set of witnesses should still be required to pay the full value of a slave to the master.


ื“ื›ื™ ืžื—ื™ื™ื‘ื™ ืœื™ื” ืœื’ื‘ืจื ืื›ืชื™ ื’ื‘ืจื ืœืื• ื‘ืจ ื—ื™ื•ื‘ื ื”ื•ื ืืœื ื“ืงื ืžืงื“ืžื™ ืงื“ื•ืžื™ ื”ื ื™ ื‘ืชืจืื™


The reason the first set of witnesses should be liable is that when they sought to impose liability upon the man, i.e., the master, this man was not yet burdened with any liability. When the first set of witnesses testified about the injuries, the master was not yet obligated to emancipate his slave or pay damages. Therefore, these conspiring witnesses should be required to pay these sums, which they had sought to impose on the master. Rather, it must be that the latter set of witnesses predated the time of the injuries, by testifying that they were inflicted at an earlier date than that attested to by the first set of witnesses.


ื•ืื™ ื“ืœื ืขืžื“ ื‘ื“ื™ืŸ ืื›ืชื™ ื“ืžื™ ื›ื•ืœื™ื” ืขื‘ื“ ืœืจื‘ ื‘ืขื™ ืฉืœื•ืžื™ ืœื™ื” ื“ืื›ืชื™ ื’ื‘ืจื ืœื ืžื™ื—ื™ื™ื‘


The Gemara continues to analyze the case: And if the baraita is referring to a case where the master had not yet stood trial for having injured his slave when the first set of witnesses submitted their testimony, those witnesses should still be required to pay the entire value of the slave to the master, as at the time of their testimony the man, i.e., the master, was not yet liable. The first set of witnesses sought to render the master liable at a time when he was exempt from liability, and therefore they should be obligated to pay him the full value of the slave.


ืืœื ื“ืขืžื“ ื‘ื“ื™ืŸ


Rather, it must be that the master had already stood trial for having inflicted these injuries, and had been sentenced by the court to emancipate the slave for the first injury and pay him for the second injury. Then, the master evaded payment, and was subsequently brought before another court, where witnesses testified that the first court had established liability for knocking out the tooth first and then blinding the slaveโ€™s eye. This testimony was subsequently rendered conspiring testimony by a second set of witnesses, who testified both that the first set of witnesses was not at the scene of the first trial and that the results of the trial were actually reversed, i.e., the masterโ€™s liability was for blinding the eye first and then for knocking out the tooth. Since the first set of witnesses, who were rendered conspiring witnesses, sought to increase the masterโ€™s liability payment from that of the value of a tooth to that of an eye, they must pay the value of an eye to the master.


ืืžืจ ืœื™ื” ืจื‘ ืื—ื ื‘ืจื™ื” ื“ืจื‘ ืื™ืงื ืœืจื‘ ืืฉื™ ื“ื•ืงื™ื ื“ืจื‘ื ืžื”ื™ื›ื ืื™ืœื™ืžื ืžืจื™ืฉื ืจื™ืฉื ืžื™ ืงื ืžืชื›ื—ืฉื™ ืžืฆื™ืขืื™


Rava sought to infer from this baraita to his opinion that contradiction of testimony is the start of determining that testimony is conspiring testimony. Rav Aแธฅa, son of Rav Ika, said to Rav Ashi: From which case in the baraita is the inference of Rava? If we say that his inference is from the first clause, this is difficult. In the case of the first clause, if it involves three sets of witnesses, as claimed by Rava, is the intermediate set of witnesses contradicted and rejected before they are established as conspiring witnesses? The first set of witnesses testified that the eye injury took place after the tooth injury, whereas the intermediate set of witnesses reversed the order. If so, the intermediate set of witnesses sought to lower the masterโ€™s payment from the value of an eye to that of a tooth.


ื›ื™ื•ืŸ ื“ืื™ ืœื ืžืชื–ืžื™ ืกื”ื“ื•ืชื ื›ื•ื•ืชื™ื™ื”ื• ืงื ืงื™ื™ืžื ื“ื“ื™ื ื ื›ื•ื•ืชื™ื™ื”ื• ืคืกืงื™ื ืŸ ื“ื™ืฉ ื‘ื›ืœืœ ืžืืชื™ื ืžื ื”


Rav Aแธฅa continues: Since if the second set of witnesses would not have been rendered conspiring witnesses, the testimony would have been established in accordance with their statement, as the judgment would have been decided in accordance with their testimony. The reason their testimony would have determined the ruling is that one hundred dinars is subsumed within two hundred, i.e., testimony concerning a large sum includes testimony concerning a smaller sum.


ื”ืœื›ืš ืงืžืื™ ื”ื•ื ื“ืงื ืžืชื›ื—ืฉื™ ืžืฆื™ืขืื™ ืœื ืžืชื›ื—ืฉื™ ืžื™ื“ื™


Rav Aแธฅa continues: Therefore, it is the first set of witnesses, who testified that the eye injury occurred last, whose testimony would be considered contradicted and rejected, whereas the testimony of the intermediate set of witnesses would not be considered contradicted at all, as it is accepted in full. If so, this is not a case of witnesses who were rejected due to contradiction and then subsequently rendered conspiring witnesses.


ืืžืจ ืœื™ื” ืจื‘ื ืกื‘ืจ ืžื“ืจื™ืฉื ื‘ืฉืœืฉ ื›ื™ืชื•ืช ืกื™ืคื ื ืžื™ ื‘ืฉืœืฉ ื•ื“ื™ื™ืง ืžืกื™ืคื


Rav Ashi said to Rav Aแธฅa in response: Rava maintains that from the fact that the ruling of the first clause of the baraita is stated with regard to a case involving three sets of witnesses, it is logical to assume that the ruling of the latter clause is also stated with regard to a case involving three sets of witnesses, and Rava infers his ruling from the latter clause.


ื›ื’ื•ืŸ ื“ืืชื• ื‘ื™ ืชืจื™ ื•ืืžืจื™ ื”ืคื™ืœ ืืช ืฉื™ื ื• ื•ืกื™ืžื ืขื™ื ื• ื•ืคืกืงื™ื ื™ื” ืœื“ื™ื ื ืืคื•ืžื™ื™ื”ื•


Rava explains that the latter clause is referring to a case where two witnesses, i.e., the ones mentioned in the baraita, come and say: The master knocked out the slaveโ€™s tooth and afterward blinded his eye, and the court ruled its judgment in accordance with their statement, obligating the master to emancipate his slave and compensate him for the value of his eye.


ื•ืืชื• ื‘ื™ ืชืจื™ ืื—ืจื™ื ื™ ื•ืืžืจื™ ืกื™ืžื ืืช ืขื™ื ื• ื•ื”ืคื™ืœ ืืช ืฉื™ื ื• ื“ืงื ืžื›ื—ืฉื™ ืœื”ื• ืœื”ื ื™ ืงืžืื™ ื•ื ืžืฆืื• ื–ื•ืžืžื™ืŸ ืงืžืื™ ืžืฉืœืžื™ืŸ ื“ืžื™ ืขื™ืŸ ืœืจื‘


And subsequently two other witnesses, who were not mentioned in the baraita, come and say that the events were reversed: First the master blinded his slaveโ€™s eye and then he knocked out his tooth, so that they contradict the testimony of those first witnesses. At this point the master is obligated to emancipate his slave and pay him only the value of his tooth, as this much was required of him according to both sets of witnesses. And then the first pair were found to be conspiring witnesses. Therefore, as the baraita states, the first set of witnesses pays the value of an eye to the master, less the value of a tooth.


ื•ืื™ ืกืœืงื ื“ืขืชืš ื”ื›ื—ืฉื” ืœืื• ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื ืืžืื™ ืžืฉืœืžื™ ื”ื ืืชื›ื—ืฉื• ืœื”ื• ืžืขื™ืงืจื ืืœื ืฉืžืข ืžื™ื ื” ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื


Rava reaches his conclusion based on the following reasoning: And if it enters your mind that the contradiction of testimony is not the start of determining that testimony is conspiring testimony, and witnesses who were first contradicted and then rendered conspiring witnesses are not punished as conspiring witnesses, why must these witnesses pay? They were already contradicted from the outset, before they were shown to be conspiring witnesses. Rather, conclude from the latter clause of the baraita that the contradiction of testimony is the start of determining that testimony is conspiring testimony.


ื•ืื‘ื™ื™ ืืžืจ ืœืš ื‘ืฉืœืžื ืจื™ืฉื ืœื ืกื’ื™ ื“ืœื ืฉืœืฉ ื›ื™ืชื•ืช ืฉื”ืจื™ ืงืชื ื™ ื”ืจื‘ ืื•ืžืจ ื›ืŸ


And how could Abaye, who disagrees with Rava, refute this proof? He could say to you: Granted, it is impossible to interpret the first clause without the supposition that there are three sets of witnesses involved. The reason is that it is taught with regard to that first clause: As that is what the master says, i.e., this testimony is satisfactory to the master. The only testimony recorded in the baraita is that the master blinded the slaveโ€™s eye and then knocked out his tooth. Why would this be considered satisfactory to the master? It must therefore be assumed that this testimony was preceded by another one that was even less advantageous to the master. That testimony confirmed the injuries but placed the eye injury after the tooth injury, which involves greater liability for the master. Finally, a third set of witnesses must have arrived and rendered the intermediate set as conspiring witnesses, so that there are a total of three sets of witnesses.


ืืœื ืกื™ืคื ืœืžื” ืœื™ ืฉืœืฉ ื›ื™ืชื•ืช ืฉื”ืจื™ ื”ืขื‘ื“ ืื•ืžืจ ื›ืŸ


But with regard to the latter clause, why do I need to explain it as referring to three sets of witnesses? If you say that it is because the baraita states concerning this case: As that is what the slave says, i.e., this testimony is satisfactory to the slave, this does not prove that there is another testimony, not mentioned in the baraita, that is less favorable to the slave than this one.


ืขื‘ื“ ื›ืœ ื“ื”ื• ืžื™ืžืจ ืืžืจ ื“ื ื™ื—ื ืœื™ื” ื“ื ื™ืคื•ืง ืœื—ื™ืจื•ืช


The reason is that a slave would say anything, i.e., any form of testimony would be favorable to him, as it is satisfactory for him that he should be emancipated. The courtโ€™s acceptance of testimony confirming either order of events would result in his emancipation from slavery, and therefore both testimonies are satisfactory to him. Although there is a compelling reason to posit the existence of three sets of witnesses in the first clause, there is no justification to do so in the second clause, and therefore it should be explained as did Abaye, as discussing only two sets of witnesses.


ืžืชืงื™ืฃ ืœื” ืจื‘ื™ ื–ื™ืจื ืื™ืžื ืกื™ืžื ืืช ืขื™ื ื•


Rabbi Zeira objects to the basic assumption of the baraita that when a master inflicts two injuries upon his Canaanite slave he must indemnify the slave for the second injury. One can say instead that if the master blinded his slaveโ€™s eye,


ื ื™ืคื•ืง ื‘ืขื™ื ื• ื”ืคื™ืœ ืืช ืฉื™ื ื• ื ื™ืคื•ืง ื‘ืฉื™ื ื• ืกื™ืžื ืืช ืขื™ื ื• ื•ื”ืคื™ืœ ืืช ืฉื™ื ื• ื ื™ืคื•ืง ื‘ืขื™ื ื• ื•ืฉื™ื ื•


the slave should go free on account of his eye, and if he knocked out his tooth he should go free on account of his tooth, and if the master both blinded his eye and knocked out his tooth, the slave should go free on account of both his eye and his tooth, without the master having to pay damages for the loss of his tooth.


ืืžืจ ืื‘ื™ื™ ืขืœื™ืš ืืžืจ ืงืจื ืชื—ืช ืขื™ื ื• ื•ืœื ืชื—ืช ืขื™ื ื• ื•ืฉื™ื ื• ืชื—ืช ืฉื™ื ื• ื•ืœื ืชื—ืช ืฉื™ื ื• ื•ืขื™ื ื•


Abaye said to him in response: With regard to your claim, the verse states: โ€œAnd if a man smites the eye of his slave or the eye of his maidservant and destroys it, he shall let him go free for his eyeโ€™s sakeโ€ (Exodus 21:26). The phrase โ€œfor his eyeโ€™s sakeโ€ indicates: But not for the sake of both his eye and his tooth. The same can be inferred from the subsequent verse: โ€œAnd if he smites out his bondmanโ€™s tooth or his bondwomanโ€™s tooth, he shall let him go free for his toothโ€™s sakeโ€ (Exodus 21:27). The phrase โ€œfor his toothโ€™s sakeโ€ indicates: But not for the sake of both his eye and his tooth.


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


The Gemara returns to Ravaโ€™s opinion that the contradiction of testimony is the start of determining that testimony is conspiring testimony. Rav Idi bar Avin said: We too can learn from the mishna that Ravaโ€™s claim is correct, as it teaches (72b): If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently 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 must pay everything, i.e., not only the principal amount but also the fourfold or fivefold payment.


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


What, is it not referring to a case where they testified concerning the theft and then testified concerning the slaughter, and they were subsequently rendered conspiring witnesses with regard to the theft and then were rendered conspiring witnesses with regard to the slaughter?


ื•ื”ื ื›ื™ื•ืŸ ืฉื”ื•ื–ืžื• ืขืœ ื”ื’ื ื™ื‘ื” ืœื’ื‘ื™ ื˜ื‘ื™ื—ื” ื”ื•ื” ืœื”ื• ืžื•ื›ื—ืฉื™ืŸ ื•ืงืชื ื™ ืžืฉืœืžื™ืŸ ืœื• ืืช ื”ื›ืœ ื•ืื™ ืกืœืงื ื“ืขืชืš ื”ื›ื—ืฉื” ืœืื• ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื ืื˜ื‘ื™ื—ื” ืืžืื™ ืžืฉืœืžื™ืŸ ืืœื ืœืื• ืฉืžืข ืžื™ื ื” ื”ื›ื—ืฉื” ืชื—ื™ืœืช ื”ื–ืžื” ื”ื™ื


Rav Idi bar Avin states his inference: But once they were rendered conspiring witnesses with regard to the theft, their testimony with regard to the slaughter is in effect contradicted, i.e., nullified, as testimony concerning the slaughter of an animal without prior testimony establishing that the animal was stolen is meaningless. And yet the mishna teaches that the witnesses must pay everything. And if it enters your mind that the contradiction of testimony is not the start of determining that testimony is conspiring testimony, why should they pay a fine for lying about the slaughter? Their testimony concerning the slaughter was rendered irrelevant before it was established as conspiring testimony. Rather, must one not conclude from this mishna that the contradiction of testimony is the start of determining that testimony is conspiring testimony?


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


The Sages say in refutation of this inference: With what are we dealing here? We are dealing with a case where the witnesses were rendered conspiring witnesses with regard to the slaughter first, before they were rendered conspiring witnesses in their testimony concerning the theft itself. In this case, the testimony concerning the slaughter was not rendered irrelevant before it was rendered conspiring testimony.


ื•ื‘ืคืœื•ื’ืชื ืขื“ื™ื ืฉื”ื•ื›ื—ืฉื• ื•ืœื‘ืกื•ืฃ ื”ื•ื–ืžื• ืจื‘ื™ ื™ื•ื—ื ืŸ ื•ืจื‘ื™ ืืœืขื–ืจ ื—ื“ ืืžืจ ื ื”ืจื’ื™ืŸ ื•ื—ื“ ืืžืจ ืื™ืŸ ื ื”ืจื’ื™ืŸ


And this is a matter in the dispute between other amoraโ€™im, before Rava and Abaye discussed it. As it was stated: With regard to witnesses to a capital crime who were first contradicted by two other witnesses and ultimately were rendered conspiring witnesses, this is a matter of dispute between Rabbi Yoแธฅanan and Rabbi Elazar. One said: These witnesses are killed, like all conspiring witnesses in a capital case, as the contradiction of testimony is the start of determining that testimony is conspiring testimony, and one said: They are not killed.


ืชืกืชื™ื™ื ื“ืจื‘ื™ ืืœืขื–ืจ ื”ื•ื ื“ืืžืจ ืื™ืŸ ื ื”ืจื’ื™ืŸ ื“ืืžืจ ืจื‘ื™ ืืœืขื–ืจ ืขื“ื™ื ืฉื”ื•ื›ื—ืฉื• ื‘ื ืคืฉ ืœื•ืงื™ืŸ


The Gemara suggests: It may be concluded that it is Rabbi Elazar who says they are not killed. As Rabbi Elazar says: Witnesses who were contradicted in a case involving the taking of a life, i.e., a capital case, are flogged for violating the prohibition: โ€œYou shall not bear false witness against your neighborโ€ (Exodus 20:13).


ื•ืื™ ืกืœืงื ื“ืขืชืš ืจื‘ื™ ืืœืขื–ืจ ื”ื•ื ื“ืืžืจ ื ื”ืจื’ื™ืŸ ืืžืื™ ืœื•ืงื™ืŸ ื”ื•ื” ืœื™ื” ืœืื• ืฉื ื™ืชืŸ ืœืื–ื”ืจืช ืžื™ืชืช ื‘ื™ืช ื“ื™ืŸ ื•ื›ืœ ืœืื• ืฉื ื™ืชืŸ ืœืื–ื”ืจืช ืžื™ืชืช ื‘ื™ืช ื“ื™ืŸ ืื™ืŸ ืœื•ืงื™ืŸ ืขืœื™ื•


And if it enters your mind that it is Rabbi Elazar who says that witnesses to a capital crime who were first contradicted and ultimately found to be conspiring witnesses are killed, why are they flogged in this case? There is always the possibility that they might be rendered conspiring witnesses, which would render them liable to receive court-imposed capital punishment. Consequently, this is a case of a prohibition given as warning of liability for court-imposed capital punishment, and there is a principle that one is not flogged for violating any prohibition given as warning of liability for court-imposed capital punishment.


ืืœื ืœืื• ืฉืžืข ืžื™ื ื” ืจื‘ื™ ืืœืขื–ืจ ื”ื•ื ื“ืืžืจ ืื™ืŸ ื ื”ืจื’ื™ืŸ ืชืกืชื™ื™ื


Rather, isnโ€™t it correct to conclude from this statement that it is Rabbi Elazar who says that witnesses to a capital crime who were first contradicted and ultimately were found to be conspiring witnesses are not killed? The Gemara affirms: It may be concluded that this is so.


ืœื•ืงื™ืŸ ืชืจื™ ื•ืชืจื™ ื ื™ื ื”ื• ืžืื™ ื—ื–ื™ืช ื“ืกืžื›ืช ืื”ื ื™ ืกืžื•ืš ืื”ื ื™


The Gemara asks a question with regard to Rabbi Elazarโ€™s opinion that witnesses who were contradicted in a capital case are flogged. Why are they flogged simply because their testimony was contradicted? They are two witnesses, and they are contradicted by two other witnesses. What did you see in the testimony of the second set of witnesses that leads you to rely on those witnesses to the extent that the first set of witnesses is flogged? You could just as well rely on these witnesses, i.e., the first witnesses. How can the court ever determine with certainty that a given testimony is false based merely on contradictory testimony?


ืืžืจ ืื‘ื™ื™ ื‘ื‘ื ื”ืจื•ื’ ื‘ืจื’ืœื™ื•


Abaye said: The contradiction to which Rabbi Elazar is referring involves a case where the witnesses testified that they saw a certain person murdered, and subsequently the individual who was allegedly killed came to the court on his feet, conclusively disproving their testimony.


ืžืชื ื™ืณ ื’ื ื‘ ืขืœ ืคื™ ืฉื ื™ื ื•ื˜ื‘ื— ื•ืžื›ืจ ืขืœ ืคื™ ืขื“ ืื—ื“ ืื• ืขืœ ืคื™ ืขืฆืžื• ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ื•ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


MISHNA: If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently slaughtered or sold the stolen animal, as established based on the testimony of one witness or based on his own admission, i.e., he himself admitted that he performed these acts, without there being any witness testimony, he pays the double payment, but he does not pay the fourfold or fivefold payment.


ื’ื ื‘ ื•ื˜ื‘ื— ื‘ืฉื‘ืช ื’ื ื‘ ื•ื˜ื‘ื— ืœืขื‘ื•ื“ื” ื–ืจื” ื’ื ื‘ ืžืฉืœ ืื‘ื™ื• ื•ืžืช ืื‘ื™ื• ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ ื’ื ื‘ ื•ื”ืงื“ื™ืฉ ื•ืื—ืจ ื›ืš ื˜ื‘ื— ื•ืžื›ืจ ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ื•ืื™ื ื• ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื”


If one stole an animal and slaughtered it on Shabbat, which is a capital offense, or if he stole an animal and slaughtered it for the purpose of idol worship, or if he stole his fatherโ€™s animal and subsequently his father died, and afterward he slaughtered or sold it, or if he stole an animal and subsequently he consecrated it as an offering and afterward he slaughtered or sold it, in all these cases the thief pays the double payment, but he does not pay the fourfold or fivefold payment.


ืจื‘ื™ ืฉืžืขื•ืŸ ืื•ืžืจ ืงื“ืฉื™ื ืฉื—ื™ื™ื‘ ื‘ืื—ืจื™ื•ืชื ืžืฉืœื ืชืฉืœื•ืžื™ ืืจื‘ืขื” ื•ื—ืžืฉื” ืฉืื™ืŸ ื—ื™ื™ื‘ ื‘ืื—ืจื™ื•ืชื ืคื˜ื•ืจ


Rabbi Shimon says: In the case of sacrificial animals for which the owner bears financial responsibility to replace with another animal if one of the original animals that one stole is lost or dies, the thief is obligated to pay the fourfold or fivefold payment if he slaughters one of the animals. If it is a sacrificial animal for which the owner bears no financial responsibility, the thief is exempt from the fourfold or fivefold payment.


ื’ืžืณ ืขืœ ืคื™ ืขื“ ืื—ื“ ืคืฉื™ื˜ื


GEMARA: The mishna teaches that if the fact that the thief slaughtered or sold the animal was established based on the testimony of one witness, he is exempt from the fourfold or fivefold payment. The Gemara asks: Isnโ€™t this obvious?


ืืžืจื™ ื”ื ืงื ืžืฉืžืข ืœืŸ ืขืœ ืคื™ ืขืฆืžื• ื“ื•ืžื™ื ื“ืขืœ ืคื™ ืขื“ ืื—ื“ ืžื” ืขืœ ืคื™ [ืขื“] ืื—ื“ ื›ื™ ืืชื™ ืขื“ ืื—ื“ ืžืฆื˜ืจืฃ ื‘ื”ื“ื™ื” ืžื™ื—ื™ื™ื‘ ืขืœ ืคื™ ืขืฆืžื• ื ืžื™ ื›ื™ ืืชื• ืขื“ื™ื ืžื™ื—ื™ื™ื‘


The Sages say in response: By stating this case, the mishna teaches us this halakha: The case of the thief slaughtering the animal established based on the testimony of one witness is similar to a case where it is established based on his own admission. Just as in the case where the slaughter is established based on the testimony of one witness, if one other witness comes and corroborates the testimony of the first, he joins together with the first witness and together their testimony is rendered a valid testimony of two, and the thief becomes obligated to pay the fourfold or fivefold payment, so too, where the slaughter is established based on his own admission, if witnesses come after his admission he becomes obligated to pay the fourfold or fivefold payment.


ืœืืคื•ืงื™ ืžื“ืจื‘ ื”ื•ื ื ืืžืจ ืจื‘ ื“ืืžืจ ืจื‘ ื”ื•ื ื ืืžืจ ืจื‘ ืžื•ื“ื” ื‘ืงื ืก ื•ืื—ืจ ื›ืš ื‘ืื• ืขื“ื™ื ืคื˜ื•ืจ


The Gemara comments: This interpretation of the mishna serves to exclude that which Rav Huna says that Rav says. As Rav Huna says that Rav says: One who admits he is liable to pay a fine is exempt from payment, even if afterward witnesses come and testify to his liability.


ื’ื•ืคื ืืžืจ ืจื‘ ื”ื•ื ื ืืžืจ ืจื‘ ืžื•ื“ื” ื‘ืงื ืก ื•ืื—ืจ ื›ืš ื‘ืื• ืขื“ื™ื ืคื˜ื•ืจ ืื™ืชื™ื‘ื™ื” ืจื‘ ื—ืกื“ื ืœืจื‘ ื”ื•ื ื ืžืขืฉื” ื‘ืจื‘ืŸ ื’ืžืœื™ืืœ ืฉืกื™ืžื ืืช ืขื™ืŸ ื˜ื‘ื™ ืขื‘ื“ื• ื•ื”ื™ื” ืฉืžื— ืฉืžื—ื” ื’ื“ื•ืœื”


Since Rav Hunaโ€™s halakha was mentioned, the Gemara discusses in detail the matter itself. Rav Huna says that Rav says: One who admits he is liable to pay a fine is exempt from payment, even if afterward witnesses come and testify to his liability. Rav แธคisda raised an objection to Rav Huna from a baraita: There was an incident involving Rabban Gamliel, who blinded the eye of his Canaanite slave Tavi, and he experienced great joy as a result. Rabban Gamliel had long wanted to emancipate Tavi, but it is generally prohibited to emancipate a Canaanite slave. The injury provided a fortuitous opportunity for Rabban Gamliel to emancipate his slave, as blinding the eye of oneโ€™s slave results in his emancipation (see Exodus 21:27).


ืžืฆืื• ืœืจื‘ื™ ื™ื”ื•ืฉืข ืืžืจ ืœื• ืื™ ืืชื” ื™ื•ื“ืข ืฉื˜ื‘ื™ ืขื‘ื“ื™ ื™ืฆื ืœื—ื™ืจื•ืช ืืžืจ ืœื• ืœืžื” ืืžืจ ืœื• ืฉืกืžื™ืชื™ ืืช ืขื™ื ื• ืืžืจ ืœื• ืื™ืŸ ื‘ื“ื‘ืจื™ืš ื›ืœื•ื ืฉื›ื‘ืจ ืื™ืŸ ืœื• ืขื“ื™ื


Rabban Gamliel encountered Rabbi Yehoshua and said to him: Do you know that my slave Tavi was emancipated? Rabbi Yehoshua said to him: Why? What circumstances enabled you to emancipate him? Rabban Gamliel said to him: I was able to do so, as I blinded his eye. Rabbi Yehoshua said to Rabban Gamliel: Your statement is nothing, and is not grounds for his emancipation, as he has no witnesses who can testify that you did this to him. The principle is that one does not pay a fine based on his own admission. One pays a fine only based on the testimony of witnesses. The requirement to emancipate oneโ€™s slave after injuring his eye is a type of fine.


ื”ื ื™ืฉ ืœื• ืขื“ื™ื ื—ื™ื™ื‘ ื•ืฉืžืขื™ื ืŸ ืžื™ื ื” ืžื•ื“ื” ื‘ืงื ืก ื•ืื—ืจ ื›ืš ื‘ืื• ืขื“ื™ื ื—ื™ื™ื‘


The Gemara infers from the baraita: But if Tavi had witnesses who could testify with regard to the injury, Rabban Gamliel would be obligated to emancipate him, even if they testify after Rabban Gamlielโ€™s admission. And we can learn from this that one who admits that he is liable to pay a fine is liable, even if afterward witnesses come and testify with regard to his liability.


ืืžืจ ืœื™ื” ืฉืื ื™ ืจื‘ืŸ ื’ืžืœื™ืืœ ื“ืœื ื‘ืคื ื™ ื‘ื™ืช ื“ื™ืŸ ืื•ื“ื™ ื•ื”ื ืจื‘ื™ ื™ื”ื•ืฉืข ืื‘ ื‘ื™ืช ื“ื™ืŸ ื”ื•ื”


Rav Huna said to Rav แธคisda: This case involving Rabban Gamliel is different, as he admitted to his actions when he was not in the presence of a court. An admission not in the presence of a court does not exempt the perpetrator from paying the relevant fine. The Gemara challenges: But Rabbi Yehoshua was the president of the court, so it is likely that the encounter took place in court.


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