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Bava Kama 74



(a) Abaye learns that the Reisha speaks about two pairs of witnesses (and not three) from the Seifa, as we shall now see. Rava nevertheless prefer to establish the Reisha by three pairs of witnesses. The problem with establishing it by two - lies in the words 'she'Harei ha'Rav Omer Kein' (uttered by the Zomemin), which is difficult to explain unless two witnesses had preceded them and testified that the master had first knocked out his tooth and then his eye.

(b) In the Seifa, where two witnesses testify that a man knocked out first his Eved's tooth and then his eye, (which pleases the Eved) and then become Zomemin, the Tana rules - that they must pay the value of the eye to the master (whenever we speak of the value of the eye in this Sugya, it obviously means minus the value of the tooth).

(c) The second pair of witnesses (the Mazimin) must concede that the master wounded the Eved - because otherwise, the first pair of witnesses would have to pay the full value of the Eved to the master.

(d) Consequently, the Beraisa must be speaking - when the second witnesses admitted that the master had wounded the Eved, but that he had first knocked out his eye and then his tooth.

(a) In the current case (the Seifa) ...
1. ... the second witnesses must also have predated the incident of the first stroke that set the Eved free - because otherwise, the first witnesses would still have to pay the full value of the Eved to the master.
2. ... the Tana must also be speaking when the Beis-Din had already ruled that the Eved was to go free - because otherwise, the first witnesses would still have to pay the full value of the Eved to the master, seeing as the master was not yet obligated to send him away.
(b) We are referring to - an earlier Beis-Din, who, according to the testimony of the second witnesses, had already obligated the master to set the Eved free and to pay him for his eye, but he fled.

(c) Rava cannot establish the Seifa when a pair of witnesses testified that the master had first knocked out the Eved's eye and then his tooth, before the second pair reversed the two episodes and then became Zomemin - because then Beis-Din would rule like the first pair of witnesses (obligating the master to pay the smaller amount [due to the principle 'ha'Motzi me'Chavero Alav ha'Re'ayah']), and witnesses only become Zomemin if Beis-Din have rule like their testimony.

(a) Rav Acha B'rei de'Rav Ika asked Rav Ashi from where Rava learned that 'Hakchashah Techilas Hazamah Hi'. The Seifa, we learned earlier, speaks when there were no witnesses who preceded the Zomemin. Neither can we learn it from the Reisha (as we originally thought) - because, due to the fact that Beis-Din would rule like them against the first witnesses (because their testimony obligated the master to pay a smaller amount [as we just explained]), it would be the first witnesses who are Mukchashim, and not the second.

(b) Rav Ashi replied that Rava established the Seifa like the Reisha, by three pairs of witnesses - where the first pair (the Zomemin) testified that the master had knocked out the Eved's tooth and then, his eye, and Beis-Din ruled like them. Then the second pair testified, reversing the order, and making the first Mukchashin, and along came a third pair and made the first pair Zomemin.

(c) The first pair, like whom Beis-Din orginally ruled, subsequently became Mukchashin and then Muzamin (to pay the master the value of the Eved's eye), from which Rava extrapolates that 'Hakchashah Techilas Hazamah'.

(a) Abaye disagrees on the grounds that he prefers to establish the Seifa by two pairs of witnesses, and not three. He does concede that the Reisha is speaking about three pairs of witnesses (although that is not what he said earlier) - because unless witnesses preceded the Zomemin, how could the Zomemin maintain that the master is pleased with their testimony ... , as we explained above.

(b) He nevertheless establishes the Seifa by two pairs of witnesses - because there is no problem with that. When the Zomemin say that 'the Eved is pleased with their testimony', of course he is pleased to go free, irrespective of whether he receives the value of his tooth or that of his eye.




(a) Rebbi Zeira's problem with the fact that if the master knocks out both the Eved's tooth and his eye, he goes free on account of the former and pays compensation on account of the latter is - why he does not simply go free on account of both, and pay nothing? (Presumably, this Kashya is based on the fact that the Eved only goes free from the time that Beis-Din issue the ruling, but not from the time that the master wounded him).

(b) Abaye extrapolates from the Pesukin "Tachas Eino" and "Tachas Shino" - "Tachas Eino" 've'Lo Tachas Eino ve'Shino'; "Tachas Shino", 've'Lo Tachas Shino ve'Eino' (in answer to Rebbi Zeira's Kashya).

(c) From the assumption that our Mishnah 'Ganav al-Pi Shenayim ve'Tavach u'Machar al-Pihem, ve'Nimtze'u Zomemim, Meshalmin Lo es ha'Kol' follows the natural order (that they first testified on the Geneivah, and then on the Tevichah u'Mechirah, and they then became Zomemin, first on the first testimony and then on the second) Rav Idi bar Avin proves - that 'Hakchashah Techilas Hazamah Hi' (like Rava).

(d) We refute his proof however - by establishing the Mishnah when the witnesses became Zomemin on the Tevichah first, and only then on the Geneivah.

(a) Rebbi Yochanan and Rebbi Elazar indulge in the same Machlokes as Abaye and Rava regarding 'Eidim she'Hukcheshu ve'li'be'Sof Huzmu'. One says 'Neheragin', and the other, 'Einan Neheragin'. Rebbi Elazar says - 'Eidim she'Hukcheshu be'Nefesh Lokin'.

(b) What he means is - that if two pairs of witnesses argue over whether Reuven killed Shimon, the pair which testified that he did receives Malkos.

(c) We prove from this ruling that, in the Machlokes over 'Eidim she'Hukcheshu ve'li'be'Sof Huzmu' - it must be Rebbi Elazar who says 'Ein Neheragin', because it would be problematic if they were put to death, due to the principle that someone who is subject to the death-penalty cannot receive Malkos.

(d) Despite the fact that it is a matter of two against two, we give the witnesses who testify that Reuven killed Shimon Malkos, Abaye explains - because we are speaking when the allegedly dead man turned up on his own two feet.

(a) If one steals a sheep ...
1. ... through two witnesses and admits that he Shechted or sold it - he pays Kefel, but is Patur from Daled ve'Hey (because of the principle 'Modeh bi'K'nas Patur').
2. ... and Shechts it on Shabbos or to Avodah-Zarah - he pays Kefel but is Patur from Daled ve'Hey (because due to the principle 'Kam Lei bi'de'Rabah Mineih', someone who is Chayav Miysah at the hand of Beis-Din is exempt from paying.
(b) Someone who steals a sheep from his father and Shechts or sells it after his father's death is not Chayav to pay fourfold - because, seeing as he is a joint-owner, it is not "u'Tevacho" 'Kuleih be'Isura'.

(c) One is exempt from Daled ve'Hey for Shechting or selling an animal that he stole and declared Hekdesh - because the animal that he Shechted belonged to Hekdesh, and the Torah only obligates Daled ve'Hey on an animal belonging to a Hedyot.

(d) Rebbi Shimon agrees with the Tana Kama in a case of Kodshim which the owner is not obligated to replace should anything happen to it (i.e. if he said 'Harei Zu'), but he argues with him by Kodshim on which he is liable, as will be explained later in the Sugya.

(a) 'Ganav al-Pi Eid Echad O al-Pi Atzmo ... Eino Meshalem Arba'ah va'Chamishah'. 'al-Pi Eid Echad' is necessary to teach us 'Modeh bi'K'nas Patur'. The Tana finds it necessary to add 'O al-Pi Atzmo' to teach us - that in the same way as the testimony of the one witness will obligate the Ganav to pay Daled ve'Hey should a second witness join him, so too, will a pair of witnesses who arrive after he confessed obligate him to pay Daled ve'Hey.

(b) This comes to preclude from Rav Yehudah Amar Rav, who said 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim Patur'.

(c) The Tana relates how Rebbi Yehoshua once discovered Raban Gamliel in a happy frame of mind - because he had inadvertently knocked out Tavi his Eved's eye, and he thought that he would now go free to become a full-fledged practicing Jew.

(d) Rebbi Yehoshua dampened his elation however - by informing him that since he had no witnesses, Tavi would have to remain an Eved (we think, because of 'Modeh bi'K'nas, Patur').

(a) We infer from Rebbi Yehoshua's words 'Ein bi'Devarecha K'lum, *she'K'var Ein Lecha Eidim'* - that if he had had witnesses, they would have effectively set Tavi free, a Kashya on Rav.

(b) We answer that Raban Gamliel's confession took place outside of Beis-Din, and was therefore not taken into account. Yes - Rebbi Yehoshua was indeed the Av Beis-Din but still the confession took place outside of Beis-Din.

(c) Another Beraisa quotes Rebbi Yehoshua as saying 'Ein bi'Devarecha K'lum, she'K'var Hodisa'. Initially, we connect the Machlokes between the two Beraisos to the question of 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim' - the first Beraisa holds Chayav, the second Beraisa, Patur (like Rav).

(d) We conclude however, that both Beraisos hold 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim Patur (like Rav) - and whereas the first Tana holds that Raban Gamliel's admission took place outside of Beis-Din (as we explained earlier), the second Beraisa holds that it took place in front of Beis-Din.

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