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Bava Kama 75



(a) Rav holds 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim, Patur'. Shmuel says - 'Chayav'.

(b) Rava bar Ahila'i extrapolates from "Im Himatzei Simatzei" - 'Im Himatz'ei be'Eidim, Simatzei be'Dayanim'.

(c) Rav knows that the Pasuk does not come to teach us 'Modeh bi'K'nas Patur' (when no witnesses came afterwards) - because we already know that from "Asher Yarshi'un Elohim" ('ve'Lo Marshi'a es Atzmo').

(d) Shmuel learns from "Im Himatzei Simatzei" - the 'K'lal u'P'rat u'Ch'lal' like Tana de'Bei Chizkiyahu (by a Ganav, as we learned earlier in the Perek).

(a) The Tana of a Beraisa discusses a case where a Ganav who saw witnesses about to appear in Beis-Din, quickly admitted that he had stolen a sheep but declared that he did not Shecht or sell it. The Tana exempts him even from Daled ve'Hey should the witnesses testify that he did in fact, Shecht or sell the animal - because his admission exempts him from Kefel, and wherever there is no Kefel, there cannot be Daled ve'Hey either (since the Torah writes "Arba'ah va'Chamishah" and not "Sheloshah ve'Arba'ah").

(b) Shmuel initially attempts to reconcile his opinion with the Beraisa - by establishing the Beraisa when the witnesses withdrew (otherwise, he maintains, the Ganav would have been Chayav to pay both Kefel and Daled ve'Hey.

(c) We disprove Shmuel's explanation from Rebbi Elazar b'Rebbi Shimon, who says 'Yavo'u Eidim ve'Ye'idu', - in which case the Tana Kama must hold that even if they did testify, their testimony is not accepted, because the Ganav had already confessed.


1. Shmuel finally vindicates himself - by citing Rebbi Elazar b'Rebbi Shimon who supports his opinion.
2. And Rav reconciles his opinion with Rebbi Elazar b'Rebbi Shimon - by pointing out that the latter is speaking when the Ganav only confessed to his crime when he saw the witnesses on their way to Beis-Din, but ordinarily, even he would agree that in the event that the Ganav innocently confessed, he will be Patur even if witnesses subsequently corroborate his guilt.
(a) Rav Hamnuna, commenting on Rav's Din, draws a distinction between a case where the Ganav confesses to having stolen before the witnesses arrived, and one where he denies that he stole, but where, after the witnesses obligated him to pay the Keren and Kefel, he admitted that he Shechted or sold the animal before witnesses corroborated it. In the latter case, he says - Rav will concede that Modeh bi'Knas ve'Achar-Kach Ba'u Eidim Chayav'.

(b) The reason for this distinction is - that we might only say 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim Patur', when his confession obligates him to pay at least the Keren (in which case it is sincere), but not when it costs him nothing, in which case he is confessing purely in order to become exempt from paying.

(c) Rava however, proves Saba de'Bei Rav (alias Rav Hamnuna) wrong, from the fact that Rav Chisda asked Rav Huna on Rav from the Beraisa of Raban Gamliel and Tavi (that we cited earlier), even though Raban Gamliel confession was confined to a K'nas, which in no way obligated him to pay any Keren, and Rav Huna agreed with his Kashya on principle.

(d) Rebbi Chiya bar Aba Amar Rebbi Yochanan agrees entirely with Rav Hamnuna (despite Rava's Kashya).

(a) We learned above from the fact that the Tana added the case ''Ganav al-Pi Shenayim ve'Tavach u'Machar *al-Pi Eid Echad* O al-Pi Atzmo, Meshalem Kefel ve'Eino Meshalem Daled ve'Hey' - that 'Modeh bi'K'nas ve'Achar Ba'u Eidim, Chayav' (because of 'al-Pi Eid Echad Dumya de'al-Pi Atzmo' as we explained there).

(b) Rav Ashi extrapolates from the fact that the Beraisa presents the case of 'Ganav al-Pi Shenayim ve'Tavach u'Machar al-Pi Echad ... ' rather than 'Ganav ve'Tavach u'Machar al-Pi Eid Echad ... ' - that we only Darshen 'al-Pi Eid Echad Dumya de'al-Pi Atzmo' in this case, where the Ganav did not even obligate himself to pay the Keren; where he did, the Tana will concede that 'Modesh bi'K'nas ve'Achar Ba'u Eidim, Patur' (like Rav Hamnuna).

(c) Rav Ashi also tries to prove Rav Hamnuna right from the Beraisa that we quoted earlier 'Ra'ah Eidim she'Memashmeshin u'Bo'in ve'Amar Ganavti Aval Lo Tavachti u'Macharti, Eino Meshalem Ela Keren - which appears to exempt him from Daled ve'Hey only because he at least confessed to the theft, thereby obligating himself to pay the Keren.

(d) We refute the proof from the Beraisa on the grounds - that the reason the Tana made a point of presenting the case in this way is to teach us that, even though the Ganav did not deny Shechting or selling the cow, he is nevertheless Patur from Daled ve'Hey because, having confessed to having stolen it, he is Patur from Kefel (as we explained earlier), and wherever there is no Kefel, there is no Daled ve'Hey.




(a) The Tana Kama of a Beraisa discusses a case where two separate pairs of witnesses testify that someone stole and Shechted or sold an animal. In a case where ...
1. ... the first pair of witnesses became Zomemin - nobody pays Daled ve'Hey, because as we just learned, wherever there is no Kefel, there is no Daled ve'Hey either.
2. ... the second pair of witnesses became Zomemin - the Ganav pays Kefel, and the Zomemin pay Daled ve'Hey to the Ganav.
(b) Sumchus says 'Hein Meshalmin Kefel ve'Hu Meshalem Tashlumei Sheloshah le'Par ... '. It is impossible to establish Sumchus either on the Reisha or on the Seifa of the Beraisa, as it stands - because both Halachos are clear-cut and unarguable.

(c) So we establish the Machlokes when the Ganav conceded to the first witnesses that he had stolen the animal (as well as having Shechted or sold it), but not in their presence, and he promptly brought witnesses that declared them Zomemin. The owner however, then brought a second set of witnesses - who testified that the Ganav did indeed steal the animal and Shecht or sell it.

(d) We initially connect the Machlokes Tana'im to the previous ruling of Rebbi Chiya bar Aba Amar Rebbi Yochanan (who obligates 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim' there where the Ganav did not obligate himself to pay anything through his admission (as is the case here, seeing as he only admitted on account of the first witnesses, who had currently obligated him to pay Kefel anyway). Consequently ...

1. ... the Rabbanan exempt the Ganav from Daled ve'Hey - because they disagree with Rebbi Yochanan's S'vara.
2. ... Sumchus obligates him to pay - because Rebbi Yochanan in fact, follows his opinion.
(a) Rav Acha Brei de'Rav Ika rejects this suggestion however. According to him, both Tana'im hold that in the above case he would be Chayav to pay Daled ve'Hey - because, in his opinion, both Tana'im hold like Rebbi Yochanan.

(b) And he establishes their Machlokes when the Ganav concedes to the first pair of witnesses that he stole the animal (as well as having Shechted or sold it), but not in front of them, but in front of other witnesses. Then he subsequently brings witnesses who declare the first witnesses Zomemin, and the second pair of witnesses arrive and corroborated his confession. The radical difference between this case and the previous one (which serves as the basis of the Machlokes Tana'im) is - that in this case, the second pair of witnesses cannot become Zomemin (seeing as the defendant himself has specifically validated their testimony).

(c) The reason of ...

1. ... the Tana Kama, who absolves the Ganav from Daled ve'Hey is - based on the principle 'Eidus she'I Atah Yachol le'Hazimah, Lo Havya Eidus', which renders the second witnesses Pasul.
2. ... Sumchus, who obligates him to pay is - because he holds 'Eidus ... Havya Eidus'.
(d) This also affects who becomes the recipient of the Kefel - because according to the Tana Kama, the first witnesses pay Kefel to the Ganav; whereas according to Sumchus, they pay to the owner (in place of the Ganav).
(a) We reconcile Sumchus' ruling with the fact that it is unanimously accepted that 'Eidus she'I Atah Yachol le'Hazimah, Lo Havya Eidus' - by restricting the latter ruling to a case where the witnesses omitted basic details from their testimony, casting suspicion on their reliability, whereas in our case, the fact that they cannot become Zomemin is because they have the support of the defendant, which if anything, proves the veracity of their testimony.

(b) The problem with Sumchus' statement 'Hein Meshalmin Tashlumei Kefel' is - why the Zomemin should pay the principle, seeing as the Ganav himself admitted to having stolen the animal, so that their testimony would not have caused him to lose that.

(c) We therefore amend the statement to read - 'Hein Meshalmin Tashlum de'Kefel' (meaning the completion of the Kefel (besides the principle, which the Ganav himself pays).

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