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Bava Kama 73

BAVA KAMA 73 (21 Tishrei, Hoshana Raba) - dedicated by Gedalyah Jawitz of Wantagh, N.Y., honoring the Yahrtzeit of his father, Yehuda ben Simcha Volf Jawitz.



(a) We learned in our Mishnah that if two witnesses testified that someone stole a sheep or a cow and Shechted or sold it, and then become Zomemin, they are obligated to pay both Kefel and Daled ve'Hey. Initially, we ask from this Mishnah on Abaye (who holds 'Eid Zomem Lemafre'a Hu Nifsal') - because we think that everything followed the natural sequence, first the Ganav stole, then he Shechted or sold the animal, then the witnesses became Zomemin on the Geneivah, and then on the Tevichah or the Mechirah. In that case it transpires that, when the witnesses became Zomemin on the Geneivah, they were Pasul at the time that they testified on the Tevichah and the Mechirah, in which case they ought not to pay Daled ve'Hey (since it is only if the witnesses' testimony on the Tevichah and Mechirah is valid that they can subsequently be declared Zomemin on it).

(b) We try to answer that the Tana speaks when they were first made Zomemin on the Tevichah. This answer is unsatisfactory however - on the grounds that seeing as they testified on the Geneivah first, they will later turn out to have been retroactively Pasul at the time when they testified on the Tevichah ... , in which case they will still not be liable to pay Daled ve'Hey.

(c) So to conform with Abaye - we establish our Mishnah when they testified on both the Geneivah and the Tevichah or the Mechirah one after the other ('Toch K'dei Dibur'), because then, one cannot say that when they testified on the Tevichah ... , they were already Pasul (seeing as their testimony on the Geneivah ... did not take place more a Toch K'dei Dibur before the Tevichah or the Mechirah.

(d) Indeed it matters in which order the Hazamah took place - because if the Hazamah took place first on the Geneivah, he will be Pasul, and will be Patur from Daled ve'Hey (as we explained earlier).

2) The Tana Kama of the Beraisa says - that a set of witnesses who testified that someone stole an animal and Shechted or stole it and who then became Zomemin on the testimony ...
1. ... of the theft - 'Eidus she'Batlah Miktzasah Batlah Kulah.
2. ... of the Tevichah or the Mechirah - the Ganav pays Kefel, and the witnesses, Daled ve'Hey.
(a) Rebbi Yossi makes a distinction between two sets of witnesses and one set of witnesses. In the latter case, he says 'Eidus she'Batlah Miktzasah, Batlah Kulah'. We refute the suggestion that Rebbi Yossi means literally two sets of witnesses and one set of witnesses - which we would then present if that one set testified on two separate occasions, first on the Geneivah, which they say, took place on Sunday, and then on the Tevichah or Mechirah, which took place on Monday, even if they were made Zomemin on the second testimony.

(b) We refute this suggestion however, on the grounds - that there would then be no reason to render the witnesses Zomemin on the Geneivah (as we explained above).

(c) The case of ...

1. ... 'Sh'tei Idiyos' therefore is - the case that we just suggested for 'Eidus Achas', which Rebbi Yossi refers to as 'two Idiyos' because they testified on two separate occasions
2. ... 'Eidus Achas' - is where the Eidus on the Tevichah or the Mechirah took place one after the other (and in that order) 'Toch K'dei Dibur'.
(d) Assuming that both Tana'im hold of the principle 'Toch K'dei Dibur ke'Dibur Dami', we suggest the basis of their Machlokes to be the same as that of Abaye and Rava; Rebbi Yossi holds 'Eid Zomem Lemafre'a Hu Nifsal' (like Abaye, as we explained above), whereas the Rabbanan hold 'mi'Ka'an u'Lehaba Hu Nifsal' like Rava, and since the witnesses were only invalidated on the Tevichah ... , their testimony on the Geneivah remains intact (despite the fact that it was presented 'Toch K'dei Dibur' before that of the Tevichah ... .
(a) We conclude that both Tana'im may well hold 'Eid Zomem Lemafre'a Nifsal', and the reason that the Rabbanan do not negate the testimony on the Geneivah which was said 'Toch K'dei Dibur' prior to that of the Tevichah or the Mechirah is - because they hold 'Toch K'dei Dibur La'av ke'Dibur Dami'.

(b) When, to explain Rebbi Yossi, we say 'Ki Iszamu a'Tevichah, *Iszamu* Nami a'Geneivah' - we do not mean that they became Zomemin on the Geneivah (why should they?), but that their testimony is negated (see Maharsha).




(a) Rebbi Meir says in the Mishnah in Temurah 'Harei Zu Temuras Olah, Temuras Shelamim, Harei Zu Temuras Olah' - because he holds 'T'fos Lashon Rishon' (when two consecutive statements clash, we adopt the first one, and ignore the second (because his change of heart is invalid).

(b) 'If that is what he meant, Rebbi Yossi says, then, since it is impossible for the two to take effect simultaneously, his words stand. What he means by ...

1. ... 'if that is what he meant' is - that if the owner (had not changed his mind, but actually) meant both statement to take effect.
2. ... 'his words stand' is - that the animal is placed in a field, where it is allowed to romp around until it obtains a blemish. Then it is sold; half the proceeds go towards the cost of an Olah, the other half, towards the cost of a Shelamim.
(c) If he changed his mind however, Rebbi Yossi continues, then it is a Temuras Olah (like Rebbi Meir), which seems rather obvious. So Rav Papa establishes Rebbi Yossi - when he changed his mind, but within 'Toch K'dei Dibur', in which case the Chidush is that 'Toch K'dei Dibur La'av ke'Dibur Dami'.

(d) Indeed, we just concluded that Rebbi Yossi holds 'Toch K'dei Dibur ke'Dibur Dami' - but that was referring to 'Toch K'dei Dibur of a Rebbe to a Talmid 'Shalom Alecha'; whereas Rebbi Yossi here is referring to the longer Shiur of a Talmid to a Rebbe 'Shalom Alecha Rebbi (u'Mori), of which he does not hold.

6) Rava says that if witnesses whose testimony a second set of witnesses countered (Hakchashah), and whom a third set of witnesses then declared Zomemin, they are considered Zomemin (and are even put to death if that is what they attempted to achieve with their testimony). Rava does not consider their testimony invalid from the time of the Hakchashah - because he holds 'Hakchashah Techilas Hazamah Hi' (the Hakchashah of the first set of witnesses is not independent of the Hazamah, but the beginning of it.


(a) The Beraisa rules that if witnesses testify that a man blinded his Eved and then knocked out his tooth (which pleased his master), and then were then declared Zomemin, they must pay the value of the eye to the master. Besides the fact that if there was only one set of witnesses, then, once the Eved goes free, why should the witnesses pay for the eye?, the other problem with this ruling is - that seeing as, with their evidence, they tried to set him free, the witnesses should be obligated to pay the owner the entire value of the Eved?

(b) The third problem we have with the Beraisa the way it stands is - what the Tana means when he says that the master is pleased with their testimony. Why should he be pleased with testimony which will deprive him of his Eved?

(c) Rava therefore establishes the Beraisa - when a set of witnesses testified before the Zomemin, and claimed that the master had first knocked out the Eved's tooth and then his eye, whilst the Zomemin reversed the order.

(d) This answer the three Kashyos that we just posed - because now, the Zomemin were not coming to set the Eved free, but to cause the Eved to lose the payment of his eye, which the first set of witnesses had tried to gain for him (as well as setting the Eved free for the loss of his tooth).

(a) Rava now attempts to prove his opinion regarding 'Hakchashah Techilas Hazamah' from here - because according to his explanation of the Beraisa, this is precisely what it is (the first witnesses contradicted the second set, before they were declared Zomemin by the third set).

(b) Abaye refutes Rava's proof. According to him, the Tana speaks when no witnesses testified prior to the witnesses who became Zomemin. And he answers the three Kashyos - by establishing the Beraisa when the witnesses who declared the first set Zomemin, also switch the order of events (much in the same way as the first set did according to Rava).

(c) The problem, according to Abaye, with obligating the Zomemin to pay the Eved the value of his eye is - why only his eye? Seeing as they attempted to have him set free, why are they not rather obligated to pay the master the value of his Eved?

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