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Babylonian Talmud: Tractate Baba Kamma

Folio 72a

was because I had not yet partaken of [a dish of] beef [and felt too feeble to arrive at a carefully thought out conclusion]. But why then this difference between the earlier clause1  and the later clause?2  — He replied: In the earlier clause1  we can rightly apply to the offence [the words] 'and he slaughters it', [in the sense that] the whole act is unlawful,3  whereas in the concluding clause we cannot apply to the offence [the words] 'and he slaughters it' [in the sense that] the whole act is unlawful.4

IF HE SLAUGHTERS AND FINDS THE ANIMAL TREFA [OR WHERE HE SLAUGHTERS IT AS UNCONSECRATED IN THE 'AZARAH HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT]. R. Habibi of Huzna'ah said to R. Ashi: This shows that [from the legal point of view] the term 'slaughter' applies to the act only at its completion for if it applied to the whole process from the beginning to the end, would he not as soon as he started the act of slaughtering in the slightest degree5  render the animal ritually forbidden for any use,6  so that what follows the beginning would amount to slaughtering an animal no more belonging to the owner?7  — R. Huna, the son of Raba,8  said to him: The liability might have been just for that commencement in the slightest degree.9  R. Ashi, however, said to him: This is no refutation,10  [since it says] 'and he slaughters it', we require the whole act of the slaughter, which is absent here. But what about the original difficulty?11  — He thereupon said to him: R. Gamda stated thus in the name of Raba: We are dealing here with a case where, for instance, he cut a part of the organs of the animal outside of the 'Azarah, but completed the slaughter inside of the 'Azarah.12

Some attach this argument to the following statement: R. Simeon13  said in the name of R. Levi the Elder: The term 'slaughter' applies to the act only at its very completion. R. Johanan, however, said it applies to the whole process from the beginning to the end. R. Habibi of Huzna'ah thereupon said to R. Ashi: Are we to say that R. Johanan held that [the prohibition of slaughtering] unconsecrated animals in the 'Azarah is not based on Scripture?14

Original footnotes renumbered. See Structure of the Talmud Files
  1. Where liability is stated.
  2. Stating exemption, since 'five oxen' imply also 'five halves' of oxen why then should he not pay the part due to his coheirs?
  3. As the slaughter took place while the father was still alive.
  4. For at the time of the slaughter the thief was already a joint owner of the animal.
  5. In the precincts of the Temple.
  6. Cf. Pes. 22a.
  7. For surely after it becomes forbidden for any use, there would be no practical use in retaining ownership.
  8. [Read with MS.M., 'R. Aba b. Raba' as on p. 414, v. D.S. a.l.]
  9. Before the animal became forbidden for any use.
  10. Of the proof suggested by R. Habibi.
  11. That, since the animal became forbidden for any use at the commencement of the slaughter, there should be no liability to pay the fine.
  12. So that the animal became forbidden for any use only at the completion of the slaughter, for which the thief has to pay the fine.
  13. [Read 'Simeon b. Lakish', v. D.S. a.l.]
  14. V. p. 413, n. 4.

Baba Kamma 72b

For if you assume that it has Scriptural authority, then as soon as he starts the act of slaughtering in the slightest degree would he not render the animal ritually forbidden for any use, so that what follows the beginning would amount to slaughtering an animal no more belonging to the owner? — R. Aha, the son of Raba, said to him: The liability might be just for that commencement in the slightest degree. R. Ashi, however, said to him: This is no refutation;1  [since it says] 'and he slaughters it' we require the whole act of the slaughter, which is absent here. But what about the original difficulty?2  — He, thereupon, said to him that R. Gamda stated thus in the name of Raba: When does he become liable? When for instance he cuts a part of the organs of the animal outside of the 'Azarah but completes the slaughter inside of the 'Azarah.3

MISHNAH. IF A THIEF [IS CONVICTED OF THE THEFT OF AN OX] ON THE EVIDENCE OF TWO WITNESSES, AND OF THE SLAUGHTER OR SALE OF IT ON THE EVIDENCE OF THE SAME TWO, AND THESE WITNESSES ARE SUBSEQUENTLY PROVED ZOMEMIM,4  THEY MUST PAY [THE ACCUSED] IN FULL.5  IF, HOWEVER, THE THEFT [HAS BEEN ESTABLISHED] BY THE EVIDENCE OF ONE PAIR OF WITNESSES, AND THE SLAUGHTER OR SALE BY THAT OF ANOTHER PAIR,6  AND BOTH PAIRS ARE PROVED ZOMEMIM, THE FIRST PAIR MAKES [THE ACCUSED] DOUBLE PAYMENT7  AND THE SECOND PAIR THREEFOLD PAYMENT.8  WHERE [ONLY] THE SECOND PAIR WERE PROVED ZOMEMIM, THE THIEF MAKES DOUBLE PAYMENT,9  WHEREAS THEY PAY [HIM] THREEFOLD.8  SHOULD ONE OF THE SECOND PAIR OF WITNESSES BE PROVED ZOMEM, THE TESTIMONY OF THE SECOND PAIR BECOMES NULL AND VOID.10  SHOULD ONE OF THE FIRST PAIR OF WITNESSES BE PROVED ZOMEM, THE WHOLE TESTIMONY [OF BOTH PAIRS] BECOMES NULL AND VOID, FOR IF THERE WAS NO THEFT THERE COULD BE NO [ILLEGAL] SLAUGHTER OR SALE.11

GEMARA. It has been stated:12  If a witness has been proved a zomem, Abaye says that he becomes disqualified retrospectively [from the time when he gave his evidence in court],13  whereas Raba says that he is disqualified only for the future [from the time when he is proved zomem]. Abaye makes the disqualification retrospective on the ground that the witness has been shown to have been wicked at the time when he gave evidence, and the Torah says: Do not accept the wicked as a witness.14  Raba, on the other hand, holds that the disqualification begins only from the moment when his deceit is proved, because the whole procedure of proving witnesses zomemim is anomalous. For this is a case of two witnesses against two; why then accept the evidence of the one pair rather than that of the other? At least let it take effect only from the time when the anomalous procedure is employed.

Some say that Raba really agrees with Abaye that the disqualification is retrospective, but rejects here this principle on practical grounds, because its adoption

Original footnotes renumbered. See Structure of the Talmud Files
  1. V. p. 413, n. 8.
  2. V. p. 413, n. 9.
  3. V. p. 413, n. 10.
  4. Lit., 'plotters', 'schemers' (plural of Zomem), i.e., witnesses proved by the subsequent evidence of two witnesses to have been absent at the time of the alleged offence; their punishment is by the law of retaliation. V. Deut. XIX, 18-19 and Mak. I, 2-4.
  5. I.e., five times the value of the alleged theft. V. Ex. XXI, 37.
  6. For which cf. supra pp. 403-5.
  7. Which he would have to pay through them for the alleged theft.
  8. I.e., the difference between the 'double' and the 'fivefold' payment intended by them to have been inflicted on the accused.
  9. As the evidence regarding the theft still holds good.
  10. Cf. Mak. I, 7.
  11. For the fine of fivefold includes the double payment for the theft so that when the latter could not be established as in the case here no fine could be imposed for the slaughter or sale.
  12. Cf. Sanh. 27a.
  13. Any evidence he gave in the intervening period becomes invalidated.
  14. An interpretation of Ex. XXIII, 1.