Babylonian Talmud: Tractate Baba Kamma

Folio 73a

might adversely affect purchasers.¹  What practical difference is there between the two versions?²  — Where two witnesses have proved one of a pair zomem, and other two witnesses have proved the other one of the pair zomem;³  or again, where the disqualification of the witnesses is based upon an accusation of larceny brought by a subsequent pair.⁴  According to the version which makes Raba base his view⁵  on the fact of the procedure being anomalous, he would not apply it here, whereas according to the version which makes his reason the fear of adversely affecting purchasers, it would hold good even here.⁶

R. Jeremiah of Difti said: R. Papa decided in an actual case in accordance with the view of Raba. R. Ashi, however, stated that the law agrees with Abaye. And the law agrees with Abaye [against Raba] on [the matters known as] Y'AL KGM.⁷

We have learnt: 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, THEY MUST PAY [THE ACCUSED] IN FULL. Does this not mean that they first gave evidence regarding the theft and then⁸  gave evidence again regarding the slaughter, and that they were proved zomemim regarding their evidence about the theft and then were proved zomemim regarding their evidence about the slaughter? Now, if you assume that a witness proved zomem becomes disqualified retrospectively, [it would surely follow that] as soon as these witnesses were declared zomemim regarding the theft, it became clear retrospectively that when they gave evidence regarding the slaughter⁹  they were already disqualified.¹⁰  Why then should they pay [the retaliation penalty regarding their evidence] about the slaughter?¹¹  — It may be said that we are dealing here with a case where they were first declared zomemim regarding their evidence about the slaughter. But it may still be argued that after all since when they were subsequently declared zomemim regarding the theft, it became clear retrospectively that when they gave evidence regarding the slaughter, they had already been disqualified. Why then should they pay the retaliation penalty for the slaughter?¹²  — This law would apply only when they testified at one and the same time to both theft and slaughter,¹³  and were afterwards declared zomemim.¹⁴

May we say that this matter¹⁵  formed the point at issue between the following Tannaim: If two witnesses gave evidence against a person that he had stolen an ox and the same witnesses also testified against him that he had slaughtered it, and were declared zomemim regarding the theft, as their evidence became annulled in part¹⁶  it became annulled altogether. But if they were declared zomemim regarding the slaughter, the thief would still have to make double payment and they would have to pay [him] three-fold. R. Jose, however, said: These rulings¹⁷  apply only in the case of two testimonies,¹⁸  for in the case of one testimony the law is that a testimony becoming annulled in part becomes annulled altogether. Now, what is meant by 'two testimonies' and what is meant by 'one testimony'? Are we to say that 'two testimonies' means two absolutely independent testimonies, as in the case of two separate sets, and 'one testimony' means one set giving the two testimonies after each other, in which case R. Jose would hold that in the case of one testimony, i.e. where one set gave testimonies after each other, as, for instance where they had first given evidence about the theft and then gave evidence again about the slaughter, if they were subsequently declared zomemim with reference to their evidence about the slaughter, the law would be that a testimony becoming annulled regarding a part of it becomes annulled regarding the whole of it, and the witnesses would thus be considered zomemim also regarding the theft? On what could such a view be based? [Why indeed should the testimony given first about the theft be annulled through the annulment of a testimony given later?]¹⁹  Must we not therefore say that 'two testimonies' means one evidence resembling two testimonies, that is to say, where one set gives two testimonies one after the other²⁰  but not where there is one testimony in which all the statements are made at the same time? Now it was assumed that there was agreement on all hands that statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement. The point at issue therefore between them²¹  would be as follows: The Rabbis²²  would maintain that a witness proved zomem is disqualified only for the future, and since it is from that time onwards that the effect of zomem will apply it is only with reference to the slaughter regarding which they were declared zomemim that the effect of zomem will apply, whereas with reference to the theft regarding which they were not declared zomemim the effect of zomem will not apply.²³  R. Jose would on the other hand maintain that a witness proved zomem would become disqualified retrospectively, so that from the very moment they had given the evidence, regarding which they were proved zomemim, they would be considered disqualified; from which it would follow that when they were declared zomemim regarding the evidence about the slaughter the effect of zomem should also be extended to the evidence regarding the theft, for statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement. [Would the view of Abaye thus be against that of the Rabbis?] — To this I might reply: Were statements following one another within the minimum of time [sufficient for the utterance of a greeting] equivalent in law to a single undivided statement, it would have been unanimously held [by these Tannaim] that the pair proved zomemim should become disqualified retrospectively. But here it is this very principle whether statements following one another within the minimum of time [sufficient for the utterance of a greeting] should or should not be equivalent in law to a single undivided statement that was the point at issue between them: The Rabbis maintained that statements following one another within the minimum of time [sufficient for the utterance of a greeting]

1. Who innocently invited the same witnesses to attest the deeds of purchase.
2. Regarding the view of Raba.
3. Thus not being a case of two against two but two against one, and the procedure could not be termed anomalous.
4. In which case the accused two or more cease to act in the strict capacity of witnesses, but become a party interested and partial in the accusation brought against them personally, and the procedure could no more be considered anomalous.
5. Regarding witnesses proved zomemim.
6. For so long as the witnesses were not officially disqualified it would be a great hardship to disqualify deeds signed by them at the invitation of innocent purchasers.
7. A mnemonic composed of Y for 'Yeush, Abandonment, B.M. 21b-22b; E for 'Ed, Witness proved zomem, here under consideration; L for Lehi, pole forming a mark of an enclosure, 'Er. 15a; K for Kiddushin, a case of betrothal, Kid. 51a-52a; G for Gilluy, intimation affecting agency in the case of a bill of divorce, Git. 34a; and M for Mumar, a Defiant Transgressor whether or not he be eligible as witness, Sanh. 27a.
8. On a subsequent occasion.
9. I.e., on a subsequent occasion.
10. From the moment they had given evidence regarding the theft.
11. Since their evidence regarding slaughter fell to the ground even before they were proved zomemim with reference to it.
12. Since their evidence regarding slaughter should have fallen to the ground even without their having to be proved zomemim with reference to it.
13. In which case the retrospective disqualification through their becoming zomemim with reference to both slaughter and theft begins at the same time.
14. [But first with reference to their evidence about the slaughter. MSS. rightly omit, 'and were … zomemim'.]
15. In which Abaye and Raba differ.
16. I.e., the theft.
17. That the accused will still have to pay double payment.
18. V. the discussion that follows.
19. For surely a wrong committed at a later date could not affect the presumed integrity of a man on an earlier occasion.
20. I.e., on different occasions.
21. I.e., R. Jose and the other Rabbis.
22. Representing the anonymous opinion cited first.
23. And the accused will still have to pay double payment.

are not equivalent in law to a single undivided statement,¹  whereas R. Jose maintained that statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement.²  But did R. Jose really maintain that statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement? For we have learnt: If a man declares: Let this animal be a substitute³  for a burnt-offering, a substitute for a peace-offering, it will be a substitute for the burnt-offering,⁴  according to the view of R. Meir, whereas R. Jose says: If from the outset he intended this,⁵  his words would have to be acted upon,⁶  as it was impossible for him to utter two terms at the same time, but if he first declared; 'Substitute for a burnt-offering', and then changed his mind and said, 'Substitute for a peace-offering', it will be a substitute for a burnt-offering only.⁷  Now this statement we found strange; for is not the case of a change of mind obvious?⁸  And R. Papa therefore said: We assume that the change of mind took place within the minimum of time [required for the utterance of a greeting]!⁹  [Does this not prove that R. Jose maintained that statements following one another within the minimum of time sufficient for the utterance of a greeting would not be equivalent in law to a single undivided statement?]¹⁰  — It may be said that there are two different minimums of time [within which two different kinds of greetings could be uttered], one sufficient for the greeting given by a disciple to his master, and the other sufficient for the greeting of the master to the disciple. Where¹¹  R. Jose does not hold [the two statements to be one] is where the interval is sufficient for the greeting of a disciple to the master, viz. 'peace [upon] thee, master [and] teacher,' as this is too long,¹²  but where it is only sufficient for the greeting of the master to the disciple, 'peace [upon] thee,¹³  he holds that they do [form one].

Raba stated: Witnesses [testifying to a capital charge] who have been proved wrong¹⁴  [by a pair of other witnesses]¹⁵  and subsequently also proved zomemim, would be put to death, as the confutation was a first step in the subsequent proof of an alibi,¹⁶  though the proof of this was not yet complete at that time. Raba said: [The authority] on which I base this is that which has been taught: [If a set of witnesses declare], We testify that so-and-so has put out the eye of his slave¹⁷  and¹⁸  knocked out his tooth¹⁹  (and so indeed the master himself says), and these witnesses are [by subsequent witnesses] proved zomemim, they would have to pay²⁰  the value of the eye to the slave.²¹  How are we to understand this? If we assume, according to the apparent meaning of the text, that there was here no other pair of witnesses,²²  why should they pay the value of the eye to the slave? After they have done their best to get him [undeservedly] freed, are they also to pay him the value of his eye? Moreover, should they in such a case not have to pay the owner for the full value of the slave [as they falsely demanded his freedom]? Furthermore, 'and so indeed the master himself says,' — how could the master be satisfied [with such a false allegation to his detriment]? Does it therefore not mean a case, e.g., in which a pair of witnesses had already appeared [previously] and stated that the master knocked out the slave's tooth and then put out his eye so that the master would have to pay him the value of his eye,²³  and a middle pair of witnesses appeared later and stated that the first put out the slave's eye and then his tooth, so that he would not have to give him anything but the value of his tooth,²⁴  so that the first set of witnesses confuted the middle set, and it is to this that the words refer 'and so indeed the master himself says', for he was well satisfied with the statement alleged by the middle set? The text then goes on: 'And these are [by subsequent witnesses] proved zomemim' — that is, the middle set — 'they would have to pay the value of the eye to the slave'.²⁵  Does not this show that the confutation is the first step in a subsequent proof of an alibi?²⁶  — Abaye said: No; [what we can assume is] that the statement of these witnesses was transposed by a [second] set of witnesses, who also proved them zomemim.²⁷  That this was so is evident,

1. So that the evidence as to the theft and the evidence as to the slaughter could in no manner be considered as one, but are completely independent testimonies, and if the accusation of zomem was proved regarding the latter the former could not be affected.
2. So that the evidence as to the theft and the evidence as to the slaughter form one testimony to all intents and purposes.
3. See Lev. XXVII, 10.
4. The earlier expression being the decisive one.
5. I.e., that it should be a substitute for both offerings.
6. And the animal will have to be kept until it becomes blemished when it will be sold and half of the money realised will be utilised for a burnt-offering, and the other half for a peace-offering.
7. Tem. V, 4.
8. V. p. 419, n. 4.
9. Where it might have been suggested that the two utterances constituted a single indivisible statement.
10. For if otherwise why should the first utterance be more decisive than the second?
11. In the case of Tem. V, 4.
12. Consisting as it does of four words. [MS.M. and Asheri omit '(and) teacher,' making it thus consist of three words.]
13. Consisting only of two words.
14. On the subject matter of their evidence, after sentence had been passed.
15. For which, however, no retaliatory punishment could be imposed upon them, as Deut. XIX, 19, does not refer to witnesses who were contradicted on the subject matter of their evidence but against whom the accusation (in a sense) of an alibi was proved, i.e. where they were declared zomemim.
16. [The term 'alibi' is used here for convenience sake, as it deals here with the presence or absence of the witnesses of the alleged crime at the time when it was committed, rather than with the presence or absence of the accused, as the term is generally understood.]
17. For which he has to let him go free, cf. Ex. XXI, 26-27.
18. Subsequently.
19. For which he has to pay the five items in accordance with infra p. 473.
20. In retaliation.
21. Tosef. Mak. 1.
22. Giving evidence for the slave.
23. Which is of course more than that of his tooth.
24. Which is less than that of his eye and thus giving evidence for the benefit of the master and against the slave.
25. I.e., the difference between the value of the eye and the value of the tooth of which they conspired to deprive the slave.
26. And that after the accusation of an alibi was proved, the law of retaliation will apply despite the fact that their evidence had already been previously impaired.
27. [There were, that is to say, only two sets of witnesses, the former set testifying that the injury was done to the eye first and then to the tooth, while the second set giving evidence to the contrary and at the same time proving the first set zomemim, in which case the first would have to pay the slave the value of his eye.]