Bava Kamma 75
שֶׁלֹּא בְּבֵית דִּין הֲוָה קָאֵי.
The Gemara answers: Nevertheless, Rabbi Yehoshua was not present in court when Rabban Gamliel encountered him.
וְהָתַנְיָא, אָמַר לוֹ: אֵין בִּדְבָרֶיךָ כְּלוּם, שֶׁכְּבָר הוֹדִיתָ,
The Gemara asks a question from a different source: But isn’t it taught in a baraita that Rabbi Yehoshua said to Rabban Gamliel: Your statement is nothing, as you have already admitted to inflicting the injury yourself? This indicates that even if witnesses would subsequently testify about the injury, Rabban Gamliel would not emancipate Tavi.
מַאי, לָאו תַּנָּאֵי הִיא – הַאי תַּנָּא דְּאָמַר ״שֶׁכְּבָר אֵין לְךָ עֵדִים״, סָבַר: מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – חַיָּיב; וְהַאי תַּנָּא דְּאָמַר ״שֶׁכְּבָר הוֹדִיתָ״, סָבַר: מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – פָּטוּר?
The Gemara suggests: What, is it not the case that the difference between these two baraitot is a dispute between tanna’im? This tanna of the first baraita, who says that Rabbi Yehoshua’s statement was: As you have no witnesses, holds that one who admits that he is liable to pay a fine is liable to pay the fine if afterward witnesses come and testify to his liability. And that tanna of the second baraita, who says that Rabbi Yehoshua’s statement was: As you have already admitted, holds that one who admits that he is liable to pay a fine is exempt from payment, even if afterward witnesses come and testify to his liability.
לָא; דְּכוּלֵּי עָלְמָא, מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – פָּטוּר; וּבְהָא קָמִיפַּלְגִי – הַאי תַּנָּא דְּאָמַר ״שֶׁכְּבָר אֵין לְךָ עֵדִים״, סָבַר: חוּץ לְבֵית דִּין הֲוָה. וְהָךְ תַּנָּא דְּאָמַר ״שֶׁכְּבָר הוֹדִיתָ״, סָבַר: בְּבֵית דִּין הֲוָה.
The Gemara rejects this suggestion: No; it is possible to understand the baraitot differently. Everyone agrees that one who admits he is liable to pay a fine is exempt, even if afterward witnesses come and testify to his liability. And they disagree with regard to the following: This tanna, who says that Rabbi Yehoshua said: As you have no witnesses, holds that Rabbi Yehoshua was outside the court when Rabban Gamliel encountered him, and therefore his admission is disregarded. And that tanna, who says that Rabbi Yehoshua said: As you have already admitted, holds that Rabbi Yehoshua was in the court when Rabban Gamliel met him, so Rabban Gamliel’s admission is a valid admission.
אִיתְּמַר: מוֹדֶה בִּקְנָס, וְאַחַר כָּךְ בָּאוּ עֵדִים – רַב אָמַר: פָּטוּר, וּשְׁמוּאֵל אָמַר: חַיָּיב.
The Gemara analyzes in detail the dispute alluded to above: It was stated with regard to one who admits that he is liable to pay a fine, and afterward witnesses come and testify to his liability, that Rav says he is exempt, and Shmuel says he is liable.
אָמַר רָבָא בַּר אֲהִילַאי: מַאי טַעְמָא דְּרַב? ״אִם הִמָּצֵא״ – בְּעֵדִים, ״תִמָּצֵא״ – בְּדַיָּינִין; פְּרָט לְמַרְשִׁיעַ אֶת עַצְמוֹ.
Rava bar Ahilai said: What is the reason for the ruling of Rav? With regard to theft, which is subject to a fine of double payment, the Torah states: “If the theft shall be found in his possession alive, whether it is an ox, or a donkey, or a sheep, he shall pay double” (Exodus 22:3). The verb for “shall be found” is doubled, as the verse states “himmatze timmatze.” Rav derives from the repetition that there are two matters that are found: The double payment is imposed only if it is found [himmatze], i.e., it is revealed that he stole the item, through the testimony of witnesses, and the theft is found [timmatze], as determined through judges. This excludes one who incriminates himself through his own admission.
לְמָה לִי? מֵ״אֲשֶׁר יַרְשִׁיעֻן״ נָפְקָא! אֶלָּא שְׁמַע מִינַּהּ, מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – פָּטוּר!
Rav asks: But why do I need the Torah to teach this here? This principle is already derived from a different source: “The one whom the judges convict shall pay double to his neighbor” (Exodus 22:8), which indicates that self-incrimination is insufficient to render one liable for double payment. Rather, conclude from the fact that there are two verses to serve as the source for this principle that one who admits he is liable to pay a fine is exempt from paying even if afterward witnesses come and testify to his liability. The second verse teaches this additional novelty.
וּשְׁמוּאֵל אָמַר לָךְ: הָהוּא מִבְּעֵי לֵיהּ לְגַנָּב עַצְמוֹ, כִּדְתָנָא דְּבֵי חִזְקִיָּה.
And Shmuel would explain the double expression differently. He could have said to you: That verse is necessary to teach that a thief himself must pay double payment, i.e., the double payment is imposed not only upon a bailee who takes a false oath that the article entrusted to him was stolen, but it is also imposed upon a thief, as the school of Ḥizkiyya taught earlier in this chapter (63b).
אֵיתִיבֵיהּ רַב לִשְׁמוּאֵל: רָאָה עֵדִים שֶׁמְּמַשְׁמְשִׁים וּבָאִים, וְאָמַר: ״גָּנַבְתִּי, אֲבָל לֹא טָבַחְתִּי וְלֹא מָכַרְתִּי״ – אֵינוֹ מְשַׁלֵּם אֶלָּא קֶרֶן! אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁחָזְרוּ עֵדִים לַאֲחוֹרֵיהֶם.
Rav raised an objection to Shmuel from the following baraita: If a thief saw witnesses who were approaching with the intent to testify against him, and at that point he said: I admit that I stole an animal, but I did not slaughter or sell it, he pays only the principal. This indicates that even if those witnesses subsequently testify, the thief remains exempt from the double payment as well as the fourfold or fivefold payment. Shmuel said to him in response: With what are we dealing here in this baraita? With a case where the witnesses returned back, i.e., ultimately they did not testify.
וְהָא מִדְּתָנֵי סֵיפָא, רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן אוֹמֵר: יָבוֹאוּ עֵדִים וְיָעִידוּ; מִכְּלָל דְּתַנָּא קַמָּא סָבַר: לָא!
Rav raised an objection: But this interpretation is impossible, as can be seen from the fact that the latter clause of the baraita teaches: Rabbi Elazar, son of Rabbi Shimon, says: Let the witnesses come and testify. This means that their testimony will be accepted and the thief will be required to pay the relevant fines. By inference it may be deduced that the first tanna holds that no, there is no point in the witnesses testifying, as the thief will be exempt in any case.
אֲמַר לֵיהּ שְׁמוּאֵל: לָאו אִיכָּא רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן דְּקָאֵי כְּווֹתִי? אֲנָא דַּאֲמַרִי – כְּרַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן.
Shmuel said to Rav: Isn’t there the opinion of Rabbi Elazar, son of Rabbi Shimon, which stands in accordance with my opinion? When I said that one who admits that he is liable to pay a fine and afterward witnesses testified that he committed that act is deemed liable, I said this ruling in accordance with the opinion of Rabbi Elazar, son of Rabbi Shimon.
לִשְׁמוּאֵל וַדַּאי תַּנָּאֵי הִיא; לְרַב מִי לֵימָא תַּנָּאֵי הִיא?
The Gemara comments: According to Shmuel, his opinion on this matter is certainly subject to a dispute between tanna’im, as he himself was forced to admit that his opinion is in accordance only with the opinion of Rabbi Elazar, son of Rabbi Shimon, not that of the first tanna of the baraita. But according to Rav, shall we say that his opinion too is necessarily subject to this dispute between tanna’im?
אָמַר לְךָ רַב: אֲנָא דַּאֲמַרִי – אֲפִילּוּ לְרַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן; עַד כָּאן לָא קָאָמַר רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן הָתָם, אֶלָּא מִשּׁוּם דְּקָא מוֹדֵי מֵחֲמַת בִּיעֲתוּתָא דְעֵדִים; אֲבָל הָכָא, דְּמוֹדֶה מֵעַצְמוֹ – אֲפִילּוּ רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן מוֹדֶה.
The Gemara explains: Rav could have said to you: I say my opinion in accordance with the rulings of both tanna’im of the baraita, even according to the opinion of Rabbi Elazar, son of Rabbi Shimon. Rabbi Elazar, son of Rabbi Shimon, says that the testimony of the witnesses obligates the thief to pay a fine even after his admission only there, in that specific case, because the thief admitted his guilt solely due to his fear of the impending testimony of the witnesses. But here, in an ordinary case of admission, where there is no impending testimony to incriminate him, and he admits his guilt of his own volition, even Rabbi Elazar, son of Rabbi Shimon, would concede that the thief is exempt from payment even if witnesses subsequently testify that he is liable.
אָמַר רַב הַמְנוּנָא: מִסְתַּבְּרָא מִילְּתֵיהּ דְּרַב בְּאוֹמֵר ״גָּנַבְתִּי״, וּבָאוּ עֵדִים שֶׁגָּנַב – פָּטוּר, שֶׁהֲרֵי חִיֵּיב עַצְמוֹ בְּקֶרֶן.
Rav Hamnuna said: Rav’s statement is more reasonable in a case where the thief says: I stole an item, and subsequently witnesses came and testified that he stole that item. In that case it is logical that the thief is exempt from paying the fine despite the witnesses’ testimony, because he at least obligated himself to pay the principal amount via his admission.
אֲבָל אָמַר ״לֹא גָּנַבְתִּי״, וּבָאוּ עֵדִים שֶׁגָּנַב, וְחָזַר וְאָמַר ״טָבַחְתִּי וּמָכַרְתִּי״, וּבָאוּ עֵדִים שֶׁטָּבַח וּמָכַר – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִכְּלוּם.
But if he says: I did not steal anything, and witnesses came and testified that he did steal an animal, and subsequently the thief says: Yes, I did steal the animal, and I also slaughtered it, or I also sold it, and witnesses came and testified that he slaughtered or sold it, he is liable to pay the fourfold or fivefold payment. The reason he is liable is that through his admission he sought to exempt himself from any payment whatsoever. In order for an admission to exempt the perpetrator from a fine, it must include an admission that he is liable to pay some payment.
אָמַר רָבָא: קַפַּחְתִּינְהוּ לְסָבֵי דְּבֵי רַב. דְּהָא רַבָּן גַּמְלִיאֵל פּוֹטֵר עַצְמוֹ מִכְּלוּם הֲוָה, וְקָאָמַר לֵיהּ רַב חִסְדָּא לְרַב הוּנָא – וְלָא קָא מְשַׁנֵּי לֵיהּ.
Rava said: In this case I have gotten the better [kipaḥti] of the elders of the school of Rav, which is a reference to Rav Hamnuna. The reason is that in the baraita that discusses Rabban Gamliel injuring his slave, he was seeking to exempt himself from any payment whatsoever through his admission, and yet earlier in the Gemara it was said that Rav Ḥisda stated this baraita to Rav Huna to challenge Rav Huna’s opinion, and Rav Huna did not answer him that Rabban Gamliel’s case was different because his admission served to exempt him entirely.
אִיתְּמַר נָמֵי, אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: ״גָּנַבְתִּי״, וּבָאוּ עֵדִים שֶׁגָּנַב – פָּטוּר, שֶׁהֲרֵי חִיֵּיב עַצְמוֹ בְּקֶרֶן. אֲבָל אָמַר ״לֹא גָּנַבְ[תִּי]״, וּבָאוּ עֵדִים שֶׁגָּנַב, וְחָזַר וְאָמַר ״טָבַחְתִּי וּמָכַרְתִּי״, וּבָאוּ עֵדִים שֶׁטָּבַח וּמָכַר – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִכְּלוּם.
The Gemara notes: It was also stated that Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says the same opinion as Rav Hamnuna. If a thief says: I stole an item, and witnesses came and testified that he stole that item, the thief is exempt from paying the fine despite the witnesses’ testimony, because he at least obligates himself, through his admission, to pay the principal. But if he says: I did not steal anything, and witnesses came and testified that he did steal an animal, and subsequently the thief says: Yes, I did steal the animal, and I also slaughtered it, or I also sold it, and then witnesses came and testified that he slaughtered or sold it, he is liable to pay the fourfold or fivefold payment, as through his admission he was seeking to exempt himself from any payment whatsoever.
אָמַר רַב אָשֵׁי: מַתְנִיתִין וּבָרַיְיתָא נָמֵי דַּיְקָא; מַתְנִיתִין – דִּתְנַן: גָּנַב עַל פִּי שְׁנַיִם, וְטָבַח וּמָכַר עַל פִּי עֵד אֶחָד אוֹ עַל פִּי עַצְמוֹ – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, וְאֵינוֹ מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.
Rav Ashi said: There is a mishna and a baraita that are also precisely formulated in accordance with this opinion. The mishna is as we learned (74b): 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, he pays the double payment, but he does not pay the fourfold or fivefold payment.
לְמָה לִי דְּתָנֵי גָּנַב עַל פִּי שְׁנַיִם? לִיתְנֵי: גָּנַב וְטָבַח [וּמָכַר] עַל פִּי עֵד אֶחָד אוֹ עַל פִּי עַצְמוֹ – אֵינוֹ מְשַׁלֵּם אֶלָּא הַקֶּרֶן!
Why do I need the mishna to teach in the beginning of this case: If one stole an ox or a sheep, as established based on the testimony of two witnesses? Let the mishna teach the case more simply: If one stole an animal and then slaughtered or sold it, as established based on the testimony of one witness or based on his own admission, he pays only the principal. This would serve to teach the same principle in a less complicated manner, without the need for two additional witnesses.
אֶלָּא לָאו הָא קָא מַשְׁמַע לַן: גָּנַב עַל פִּי שְׁנַיִם וְטָבַח עַל פִּי עֵד אֶחָד אוֹ עַל פִּי עַצְמוֹ – הוּא דְּלָא מְחַיֵּיב עַצְמוֹ בְּקֶרֶן,
Rather, is it not correct to say that by citing the more complicated case, this is what the mishna teaches us: It is only in this case, where it is established that the thief stole an animal based on the testimony of two witnesses, and it is established that he slaughtered or sold it based on the testimony of one witness or based on his own admission, and where he does not obligate himself through his admission to pay the principal, that he is obligated to pay the fine.
הוּא דְּאָמְרִינַן עַל פִּי עַצְמוֹ דּוּמְיָא דְּעַל פִּי עֵד אֶחָד; מָה עַל פִּי עֵד אֶחָד – כִּי אָתֵי עֵד אֶחָד מִצְטָרֵף בַּהֲדֵיהּ, מִחַיַּיב; עַל פִּי עַצְמוֹ נָמֵי – כִּי אָתוּ עֵדִים, מִחַיַּיב.
The Gemara elaborates: In other words, it is only in that case, where the theft is established based on the testimony of two witnesses, that we say that liability based on his own admission is similar to the testimony of one witness, in that just as when the slaughter is established based on the testimony of one witness, if one other witness later comes he joins together with the first witness and together their testimony is rendered a valid testimony of two witnesses and the thief becomes liable to pay, so too, in a case when the slaughter is established based on his own admission, if witnesses subsequently come and testify, he becomes liable to pay the fine, as his admission would not have rendered him liable to pay any payment.
אֲבָל גָּנַב וְטָבַח וּמָכַר עַל פִּי עֵד אֶחָד אוֹ עַל פִּי עַצְמוֹ – דְּחִיֵּיב עַצְמוֹ בְּקֶרֶן, לָא אָמְרִינַן עַל פִּי עַצְמוֹ דֻּומְיָא דְּעַל פִּי עֵד אֶחָד.
But if it is established that the thief stole an animal and slaughtered or sold it, all based on the testimony of one witness or based on his own admission, in which case through his admission he obligates himself to pay the principal amount, we do not say that when witnesses testify subsequent to his own admission it is similar to when they arrive subsequent to the testimony of one witness, and he is liable to pay the fine in both cases. Rather, since in this case his admission would have rendered him liable to pay the principal due to the fact that the theft was not established based on the testimony of two witnesses, it is considered a proper admission, which exempts him from paying the fine.
בָּרַיְיתָא – דְּתַנְיָא: רָאָה עֵדִים שֶׁמְּמַשְׁמְשִׁין וּבָאִין, וְאָמַר: ״גָּנַבְתִּי, אֲבָל לֹא טָבַחְתִּי וְלֹא מָכַרְתִּי״ – אֵינוֹ מְשַׁלֵּם אֶלָּא קֶרֶן. לְמָה לִי לְמִיתְנֵא: ״וְאָמַר גָּנַבְתִּי אֲבָל לֹא טָבַחְתִּי וְלֹא מָכַרְתִּי״? נִיתְנֵי: ״אוֹ גָּנַבְתִּי אוֹ טָבַחְתִּי וּמָכַרְתִּי״!
The baraita that supports Rav Hamnuna’s opinion is the one cited earlier, as it is taught: If a thief saw witnesses who were approaching with the intent to testify against him, and at that point he said: I admit that I stole an animal, but I did not slaughter or sell it, he pays only the principal. Why do I need the baraita to teach: And the thief said: I admit that I stole an animal but I did not slaughter or sell it? Let it teach a simpler case, in which the thief said either: I stole the animal, or: I slaughtered it, or: I sold it.
אֶלָּא הָא קָא מַשְׁמַע לַן: טַעְמָא דְּאָמַר ״גָּנַבְתִּי״ הוּא דְּחִיֵּיב עַצְמוֹ בְּקֶרֶן – דְּפָטוּר; אֲבָל אָמַר ״לֹא גָּנַבְתִּי״ וּבָאוּ עֵדִים שֶׁגָּנַב, וְחָזַר וְאָמַר ״טָבַחְתִּי וּמָכַרְתִּי״ וּבָאוּ עֵדִים שֶׁטָּבַח וּמָכַר, דְּלֹא חִיֵּיב עַצְמוֹ בְּקֶרֶן – חַיָּיב. אַלְמָא הוֹדָאָה דִּטְבִיחָה לָאו הוֹדָאָה הִיא!
Rather, by choosing the more complicated case, this is what the baraita teaches us: The only reason that the thief is exempt from payment is that he says: I stole the animal, as in that case he obligated himself to pay the principal. But if he says: I did not steal, and witnesses came and testified that he did steal an animal, and subsequently he changed his claim and says: I slaughtered it, or: I sold it, and then witnesses came and confirmed that he slaughtered or sold it, in which case the thief did not obligate himself to pay the principal or any other payment, he would be liable to pay the fourfold or fivefold payment. Apparently, an admission to the slaughter of a stolen animal is not considered a valid admission, as such an admission does not obligate the perpetrator to pay a fine.
אָמְרִי: לָא, הִיא גּוּפַהּ קָא מַשְׁמַע לַן – דְּכֵיוָן דְּאָמַר: ״גָּנַבְתִּי״; אַף עַל גַּב דְּאָמַר ״לֹא טָבַחְתִּי וְלֹא מָכַרְתִּי״, וּבָאוּ עֵדִים שֶׁטָּבַח וּמָכַר – פָּטוּר. מַאי טַעְמָא?
The Gemara says, in rejection of this second proof: No, it is possible to explain the reason the tanna of the baraita chose to present this case in a different manner, as it teaches us this halakha itself: That once the thief says: I stole the animal, even if he also says: I did not slaughter or sell it, and later witnesses came and testified that he slaughtered or sold it, he is exempt from paying the fourfold or fivefold payment. What is the reason for this exemption?
תַּשְׁלוּמֵי (אַרְבַּע) חֲמִשָּׁה אָמַר רַחֲמָנָא, וְלֹא תַּשְׁלוּמֵי אַרְבָּעָה וְלֹא תַּשְׁלוּמֵי שְׁלֹשָׁה.
The reason is that the Merciful One states in the Torah that there is a payment of four sheep for a sheep and five oxen for an ox (see Exodus 21:37). This indicates that a thief can be rendered liable to pay, respectively, a fourfold or fivefold payment, but not a fourfold payment for an ox, nor a threefold payment for a sheep. In other words, one should not view the fines as independent of each other, that if the thief is found with the animal he pays as a fine the double payment, and if he slaughtered or sold it he pays a different fine, i.e., the fourfold or fivefold payment. Rather, the fourfold or fivefold payment comprises the principal, the double payment, and an additional two or three times the principal. By admitting to his act of theft, the thief exempts himself from the double payment, and the remaining fine for slaughtering a sheep would be a threefold payment, or a fourfold payment for an ox, which are not mandated by the Torah.
לֵימָא כְּתַנָּאֵי – הָיוּ שְׁנַיִם מְעִידִין שֶׁגָּנַב, וְהָיוּ שְׁנַיִם מְעִידִים אוֹתוֹ שֶׁטָּבַח וּמָכַר; הוּזַּמּוּ עֵדֵי גְנֵיבָה – עֵדוּת שֶׁבָּטְלָה מִקְצָתָהּ בָּטְלָה כּוּלָּהּ.
The Gemara proposes: Let us say that the opinion of Rav Hamnuna and Rabbi Yoḥanan is the subject of a dispute between tanna’im. As it is taught in a baraita: If two witnesses testify that someone stole an animal, and two others testify against him that he slaughtered or sold the animal, and the witnesses who had testified concerning the theft were rendered conspiring witnesses, the thief is exempt from all payment, as testimony that was partially invalidated is entirely invalidated. If the testimony concerning the theft was undermined, the testimony concerning the slaughter or sale is thereby rendered irrelevant. Consequently, the alleged thief is exempt from any payment.
הוּזַּמּוּ עֵדֵי טְבִיחָה – הוּא מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, וְהֵן מְשַׁלְּמִין תַּשְׁלוּמֵי שְׁלֹשָׁה. מִשּׁוּם סוֹמְכוֹס אָמְרוּ: הֵן מְשַׁלְּמִין תַּשְׁלוּמֵי כֶפֶל, וְהוּא מְשַׁלֵּם תַּשְׁלוּמֵי שְׁלֹשָׁה לַפָּר וּשְׁנַיִם לָאַיִל.
If the witnesses who testified concerning the slaughter or sale were rendered conspiring witnesses, but the testimony concerning the theft remains credible, the thief pays the double payment, and the conspiring witnesses pay a threefold payment, as that is the loss they sought to impose on the thief. The Sages said in the name of Sumakhos: The witnesses pay the double payment, and the thief pays a threefold payment for an ox and a twofold payment for a ram. This concludes the baraita.
אַהֵיָיא קָאֵי סוֹמְכוֹס? אִילֵּימָא אַרֵישָׁא – לֵית לֵיהּ לְסוֹמְכוֹס עֵדוּת שֶׁבָּטְלָה מִקְצָתָהּ בָּטְלָה כּוּלָּהּ?
The Gemara analyzes the statement of Sumakhos: To which clause in the baraita is Sumakhos referring? If we say that he is referring to the first clause, in which the testimony concerning the theft is invalidated, this is impossible. Doesn’t Sumakhos accept the principle that testimony that was partially invalidated is entirely invalidated, in this case rendering the testimony concerning the slaughter or sale irrelevant if there is no testimony concerning the theft?
וְאֶלָּא אַסֵּיפָא – שַׁפִּיר קָאָמְרִי רַבָּנַן: הוּא מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, וְהֵם מְשַׁלְּמִין תַּשְׁלוּמֵי שְׁלֹשָׁה!
But rather, he must be referring to the latter clause of the baraita, in which the testimony concerning the slaughter or sale is invalidated. This, too, is impossible, as in this case the Rabbis, i.e., the first tanna of the baraita, say well, i.e., what they state is reasonable, and the thief pays the double payment and the witnesses pay a threefold payment. On what basis would Sumakhos dispute this ruling?
אֶלָּא מִילְּתָא אַחֲרִיתִי אִיכָּא בֵּינַיְיהוּ – כְּגוֹן דְּאָתוּ בֵּי תְרֵי אָמְרִי לֵיהּ ״גָּנַבְתָּ״; אֲמַר לְהוּ: ״אִין, גָּנַבְתִּי וְטָבַחְתִּי וּמָכַרְתִּי, מִיהוּ לֹא בִּפְנֵיכֶם גָּנַבְתִּי״, וְאַיְיתִי סָהֲדִי וְאַזְּמִינְהוּ – דְּלָא בְּאַפַּיְיהוּ גְּנַב; וְאַיְיתִי בַּעַל הַבַּיִת סָהֲדֵי וְאַסְהִידוּ בֵּיהּ דְּגָנַב וְטָבַח וּמָכַר.
Rather, it must be that Sumakhos is referring to a different case entirely, one that is not mentioned explicitly in the baraita, and a different matter is at the core of the dispute between them. Sumakhos is referring to a case where two people come and say to the thief: You stole an animal. The thief said to them in reply: Yes, I did steal the animal, and moreover, I slaughtered it, or: I sold it. But I did not steal it in your presence, and your testimony that you saw me steal it is false. And subsequently the thief brought new witnesses who rendered the original witnesses conspiring witnesses, by testifying that they were in a different place at the time they claimed that the theft occurred, thereby proving that the thief did not steal in their presence. And finally, the owner of the animal brought other witnesses who testified that the thief stole the animal and slaughtered or sold it.
וּבְהוֹדָאַת טְבִיחָה קָמִיפַּלְגִי –
And Sumakhos and the Rabbis disagree over whether an admission to the slaughter of a stolen animal is a valid admission, even though it does not lead to liability to pay any payment. Both parties to the dispute agree that the admission of a perpetrator only in response to the testimony of witnesses is not a valid admission.
דְּרַבָּנַן סָבְרִי: אַף עַל גַּב דְּהוֹדָאָה דִגְנֵיבָה מֵחֲמַת עֵדִים הוּא דְּקָא מוֹדֵה, הוֹדָאָה דִטְבִיחָה הוֹדָאָה הִיא, וּפָטוּר.
The dispute between them is that the Rabbis maintain that even though the thief’s admission concerning the theft itself is not a valid admission because it is due only to the witnesses who have testified against him that he admits his guilt, nevertheless, his admission concerning the slaughter of the animal is a valid admission, despite the fact it does not render the thief liable to pay a fine, and he is therefore exempt from the fourfold or fivefold payment. The conspiring witnesses must pay the double payment to the thief, since this is the amount of financial damage they sought to impose on him, while the thief pays the double payment to the owner, as valid witnesses ultimately testified that he stole the animal.
וְסוֹמְכוֹס סָבַר: כֵּיוָן דְּהוֹדָאָה דִּגְנֵיבָה מֵחֲמַת עֵדִים הוּא דְּקָא מוֹדֵה, דִּטְבִיחָה לָאו הוֹדָאָה.
And Sumakhos maintains that since the admission concerning the theft itself is not a valid admission because it was due only to the testimony of the witnesses that he admits his guilt, so too, the admission concerning the slaughter is not a valid admission, because it does not obligate him to pay a fine, as stated by Rav Hamnuna and Rabbi Yoḥanan.
וְהָנָךְ עֵדִים קַמָּאֵי דְּאַזְּמִינְהוּ – מְשַׁלְּמִין תַּשְׁלוּמֵי כֶפֶל; וְהוּא מְשַׁלֵּם שְׁלֹשָׁה לַפָּר וּשְׁנַיִם לָאַיִל.
And consequently, those first witnesses to the theft, who were rendered conspiring witnesses, pay the double payment, as that is the amount of financial damage they sought to impose on him, and the thief pays the double payment to the owner of the animal, as valid witnesses ultimately testified that he stole it, and since his admission is invalid he must pay an additional threefold payment, for a total of a fivefold payment for an ox, or a twofold payment, for a total of a fourfold payment, for a ram. If this is their dispute, Sumakhos is in agreement with the opinion of Rav Hamnuna and Rabbi Yoḥanan, while the Rabbis disagree with this opinion.
אָמַר רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא: לָא; דְּכוּלֵּי עָלְמָא – הוֹדָאָה דִטְבִיחָה לָאו הוֹדָאָה הִיא;
Rav Aḥa, son of Rav Ika, said: No; it is possible to explain the baraita differently, as follows: Everyone, i.e., both Sumakhos and the Rabbis, maintains that an admission concerning the slaughter of a stolen animal is not a valid admission, as it does not render the perpetrator liable to pay any payment.
אֶלָּא בְּעֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ קָמִיפַּלְגִי – כְּגוֹן דְּאָתוּ סָהֲדֵי וְאָמְרִי לֵיהּ: ״גָּנַבְתָּ״, וְאָמַר לְהוּ: ״גָּנַבְתִּי וְטָבַחְתִּי וּמָכַרְתִּי, מִיהוּ לֹא בִּפְנֵיכֶם גָּנַבְתִּי אֶלָּא בִּפְנֵי פְּלוֹנִי וּפְלוֹנִי״; וְאַיְיתִי סָהֲדִי וְאַזְּמִינְהוּ – דְּלָא בְּאַפַּיְיהוּ גְּנַב; וַאֲתוֹ פְּלוֹנִי וּפְלוֹנִי וְאַסְהִידוּ בֵּיהּ דְּגָנַב וְטָבַח וּמָכַר.
Rather, they disagree over the concept of testimony that you cannot render conspiratory testimony. Sumakhos and the Rabbis disagree with regard to a case where witnesses come and say to the thief: You stole an animal. And the thief said to them in response: I did steal an animal, and moreover, I slaughtered it, or: I sold it. But you are false witnesses, as it was not in your presence that I stole the animal, but in the presence of so-and-so and so-and-so. And the thief subsequently brought witnesses who established the first set of witnesses as conspiring witnesses by testifying that the thief did not steal the animal in their presence. And finally, so-and-so and so-and-so, the two people mentioned by the thief, came and testified against the thief, saying that he stole the animal and also slaughtered or sold it.
וּבְהָא קָמִיפַּלְגִי – דְּרַבָּנַן סָבְרִי הָוְיָא לַהּ עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ, וְכׇל עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ – לָא הָוְיָא עֵדוּת.
And it is with regard to this point that they disagree, that the Rabbis maintain that the testimony of so-and-so and so-and-so is testimony that you cannot render conspiratory testimony, as the thief himself admits that their testimony is true. And any testimony that you cannot render conspiratory testimony is not considered valid testimony. Their testimony is therefore discounted, which leaves only the thief’s statement. The thief pays the money he admitted he owes, i.e., the principal of the theft, but he is exempt from paying a fine. Meanwhile, the first witnesses, who had been rendered conspiring witnesses, pay the thief the double payment.
וְסוֹמְכוֹס סָבַר: עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ – הָוְיָא עֵדוּת.
And Sumakhos maintains that testimony that you cannot render conspiratory testimony is nevertheless considered valid testimony. Therefore, the testimony of so-and-so and so-and-so is valid, and the thief must pay the fourfold or fivefold payment. Sumakhos states that the thief pays a threefold payment for an ox and a twofold payment for a ram. The reason is that the thief receives a double payment from the first, conspiring witnesses, which he gives to the owner of the animal, along with the remainder of the payment. This amounts to a threefold payment for an ox and twofold payment for a ram that he is required to pay from his own funds.
וְהָא קַיְימָא לַן דְּעֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ לָא הָוְיָא עֵדוּת! הָנֵי מִילֵּי הֵיכָא דְּלָא יָדְעִי בְּאֵיזֶה יוֹם בְּאֵיזֶה שָׁעָה – דְּלֵיכָּא לְעֵדוּת כְּלָל; אֲבָל הָכָא – סַיּוֹעֵי הוּא דְּקָא מְסַיְּיעִי לֵיהּ.
The Gemara asks: But do we not maintain as an accepted principle that testimony that you cannot render conspiratory testimony is not valid testimony? It is not reasonable to suggest that Sumakhos would disagree with that principle. The Gemara answers: This statement applies in a case where witnesses say that they do not know on which day or at which time of day the events in question occurred, in which case no one could ever say to them: You were in a different place at that time, thereby rendering them conspiring witnesses. With regard to such a case one can say that in effect there is no testimony at all, as the vague statement of the witnesses does not allow them to be prosecuted as conspiring witnesses. But here the thief is supporting their testimony, which renders it more credible.
אָמַר מָר: הֵן מְשַׁלְּמִין תַּשְׁלוּמֵי כֶפֶל. מִדְּקָא מוֹדֵה דִּגְנַב – קֶרֶן בָּעֵי שַׁלּוֹמֵי?! אָמַר רַבִּי אֶלְעָזָר מִשְּׁמֵיהּ דְּרַב, תְּנִי:
The Master said in the baraita that the Sages stated in the name of Sumakhos: The witnesses pay the double payment. The Gemara asks: From the fact that the thief admits that he stole the animal, he is required to pay the principal amount regardless of any subsequent testimony provided by witnesses. Why, then, should the conspiring witnesses be required to pay a double payment, which includes the principal amount? Rabbi Elazar says in the name of Rav: Teach the baraita differently, and instead say that Sumakhos said that the witnesses are liable for
