Babylonian Talmud: Tractate Baba Kamma

Folio 74a

since, the later clause deals with witnesses whose statements were transposed by the same set of witnesses that proved them zomemim, so also the earlier clause deals with a case where the statements of the witnesses were transposed by the same subsequent set of witnesses who proved their alibi. For it says in the later clause: If a set of witnesses declare: We testify against so-and-so that he had first knocked out his slave's tooth and then put out his eye — as indeed the servant says — and they were by subsequent witnesses proved zomemim, they would have to pay the value of the eye to the master. Now how are we to understand this? If we assume that the witnesses of the second set did not agree [with those of the first set] regarding any injury at all, why then should the first witnesses not have to pay the master the whole value of the slave?¹  Does it therefore not mean that all the witnesses agreed that an injury was inflicted, but that the witnesses of the second set reversed the order stated by the first set of witnesses²  while they also proved them zomemim? But still, what were the circumstances? If the witnesses of the second set post-dated the injury, why should the witnesses of the first set still not have to pay the master the whole value of the slave, since they falsely alleged liability to have rested upon a man at the time when that man was in fact not yet subject to any liability? — We must therefore say that the witnesses of the second set antedated the injury. But again, if [at the time when the witnesses of the first set gave evidence] the master had not yet appeared before the Court [on the matter], why should they still not have to pay him the whole value of the slave as at that time he was still a man subject to no liability?³  — It must therefore deal with a case where he had already made his appearance before the Court.⁴

R. Aha the son of R. Ika said to R. Ashi: Whence could Raba prove this point?⁵  It could hardly be from the earlier clause, for were the witnesses of the middle set⁶  those who were confuted?⁷  For indeed were they not proved zomemim; their statements would have remained the decisive evidence⁸  as the case would have been decided according to their allegations, on the principle that in the total of two hundred⁹  the sum of a hundred¹⁰  is included. Does it not then clearly follow that it was the first set of witnesses¹¹  who were thus confuted⁷  whereas the middle set of witnesses were not confuted at all?¹²  — He replied: Raba maintained that as the earlier clause dealt with three sets [of witnesses giving evidence] the later clause similarly presented the law in a case where three sets [gave evidence], and tried thus to prove his point from the later clause. [For this clause would thus have dealt with a case] where e.g., a set of two witnesses had appeared and alleged that the master first knocked out his [slave's] tooth and then put out his eye, and after the verdict was given in accordance with their testimony a set of other witnesses arrived and stated that the first put out his [slave's] eye and then his tooth, thus contradicting the witnesses of the first set, and as these [latter] were also proved zomemim they would have to pay the value of the slave's eye¹³  to the master. Now if you assume that a confutation is not considered a first step in a subsequent proof of an alibi, why should they have to pay anything¹⁴  after they had already been confuted? Does this therefore not prove that a confutation does constitute a first step in a subsequent proof of an alibi? And Abaye? — He might have rejoined: I grant you that the earlier clause cannot be explained save on the assumption that there were three sets, for it was stated there 'as indeed the master also says',¹⁵  but so far as the later clause is concerned, what need have I for three sets, since the statement 'as indeed the slave also says'¹⁶  is perfectly natural as the slave would surely say anything, being satisfied at the prospect of going free?¹⁷

R. Zera demurred [to the general implication]:¹⁸  Why not say that when the master puts out his [slave's] eye

1. Whom they wanted without proper ground to set free.
2. I.e., while the former stated that the master first knocked out his slave's tooth and then put out his eye the second set testified that he first put out the slave's eye and then knocked out his tooth.
3. And it was they who conspired to allege liability against him; cf. Rashi and Tosaf. a.l. and Mak. 5a.
4. And he was ordered to let the slave go free on the strength of some testimony by earlier witnesses, without any direction as to any payment to be made to the slave who now seeks to recover from the master compensation for the eye or tooth.
5. Even according to his interpretation that three sets of witnesses took part in the controversy.
6. Stating that the master first put out the eye of his slave and then knocked out his tooth.
7. I.e., the effect of their evidence invalidated.
8. Against the earlier set testifying that the master first knocked out his slave's tooth and then put out his eye.
9. I.e., e.g. the value of the eye, testified by the first.
10. I.e., the value of the tooth, testified by the middle set.
11. Stating that the master first knocked out his slave's tooth and then put out his eye.
12. [And this clause can thus afford no proof to Raba's ruling.]
13. I.e., the difference between the value of the eye and that of the tooth.
14. Even when proved zomemim.
15. Corroborating the witnesses stating that he put out the slave's eye and knocked out his tooth, for if these witnesses were the first to give evidence on the matter it would surely not be in the interest of the master to corroborate them. [R. Ashi does not accept as authentic the explanation given above in the name of Abaye, which was based on the assumption that Raba proved his ruling from the earlier clause, v. Tosaf. supra 73b. s.v. [H].]
16. In corroboration of the witnesses stating that the master knocked out his tooth and put out his eye.
17. How much the more so in this case where the evidence of the witnesses is completely for the benefit of the slave.
18. That a master knocking out the tooth of his slave and putting out his eye should do both — let him go free for the tooth and pay compensation for the eye.

the slave goes out free in lieu of his eye;¹  when he knocks out his slave's tooth the slave goes out in lieu of his tooth;²  and so also when he puts out his eye and knocks out his tooth the slave should go out in lieu of both his eye and his tooth [and no payment for either of these should have to be made]? — Abaye said to him: It is to rule out this idea of yours that Scripture says: 'For his eye's sake',³  implying 'not for the sake of both his eye and tooth'; 'for his tooth's sake'⁴  but not for the sake of both his tooth and his eye.

R. Idi b. Abin said: We have also learnt to the same effect:⁵  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 the witnesses have first given evidence regarding the theft and then [some time later] testified to the slaughter, and that they were first proved zomemim regarding the theft and then [some time later] proved zomemim [also] regarding the slaughter? Now, the fact that they were proved zomemim regarding the theft is in itself a confutation of their evidence regarding the slaughter,⁶  and it is nevertheless stated that 'THEY MUST PAY THE ACCUSED IN FULL'. But if you assume that a confutation is not the first step in a subsequent proof of an alibi, why should they pay the retaliation penalty for the slaughter? Does not this then show confutation is a first step in a subsequent proof of an alibi? — It may, however, be said that we are dealing here with a case where for example they were first proved zomemim regarding the slaughter.⁷

In this argument [between Raba and Abaye, earlier Sages already differed]: In the case where witnesses [testifying to a capital charge] were first contradicted by another set of witnesses and subsequently also proved zomemim [by a third set of witnesses] R. Johanan and R. Eleazar differed: one said they would be subject to the death penalty,⁸  whereas the other said they would not be subject to the death penalty. There is proof that R. Eleazar was the one who said they would not be subject to the death penalty; for R. Eleazar said: 'If witnesses were confuted [but not proved zomemim] as to their evidence regarding a charge of murder, they would be lashed.⁹  Now, if you assume that R. Eleazar was the one who said that [were they subsequently to be proved zomemim] they would be subject to the death penalty, why should they be lashed [when confuted]? Should we not regard the prohibition here laid down¹⁰  as a preliminary warning that the death penalty will be exacted by a court of law,¹¹  and every prohibition which can serve as a preliminary warning of a death penalty to be exacted by a court of law does not entail liability for lashes?¹²  Does not this show that R. Eleazar was the one who said that¹³  they would be subject to the death penalty?¹⁴  — This may indeed be regarded as proved.

[It has been stated that where witnesses were confuted but not proved zomemim as to their evidence regarding a capital charge] 'they would be lashed'.⁹  But as this is a case where two witnesses contradict other two witnesses, how then could it appear right to you to rely upon those of the second set? Why not rely upon the others? — Abaye replied: This could be so only where the alleged victim came to us on his own feet [thus disproving the evidence of the first set].¹⁵

MISHNAH. IF THE THEFT [OF AN OX OR A SHEEP] WAS TESTIFIED TO BY TWO WITNESSES,¹⁶  WHEREAS THE SLAUGHTER OR SALE OF IT WAS TESTIFIED TO BY ONLY ONE WITNESS OR BY THE THIEF HIMSELF, HE WOULD HAVE TO MAKE DOUBLE PAYMENT¹⁷  BUT WOULD NOT HAVE TO MAKE FOUR-FOLD AND FIVE-FOLD PAYMENTS.¹⁸  IF HE STOLE IT AND SLAUGHTERED IT ON THE SABBATH DAY,¹⁹  OR IF HE STOLE IT AND SLAUGHTERED IT FOR THE SERVICE OF IDOLS,¹⁹  OR IF HE STOLE IT FROM HIS OWN FATHER WHO SUBSEQUENTLY DIED AND THE THIEF THEN SLAUGHTERED IT OR SOLD IT,²⁰  OR IF HE STOLE IT AND CONSECRATED IT [TO THE TEMPLE],²¹  AND AFTERWARDS HE SLAUGHTERED IT OR SOLD IT, HE WOULD HAVE TO MAKE DOUBLE PAYMENT BUT WOULD NOT HAVE TO MAKE FOUR-FOLD AND FIVE-FOLD PAYMENTS. R. SIMEON, HOWEVER, SAYS: IN THE CASE OF CONSECRATED CATTLE, THE LOSS OF WHICH THE OWNER HAS TO MAKE GOOD, THE THIEF HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT,²²  BUT IN THE CASE OF THOSE THE LOSS OF WHICH THE OWNER HAS NOT TO MAKE GOOD, THE THIEF IS EXEMPT.

GEMARA. Is it not obvious that a testimony from the mouth of one witness [should impose no liability to pay]? — It may, however, be said that what we are told here is that confession by the thief himself is analogous to evidence borne by one witness: just as in the case of evidence given by one witness, if another witness should come along and join him, the thief would be made liable;²³  so also in the case of confession by the thief himself, if witnesses should come along [and corroborate it], he would become liable. This deviates from the view of R. Huna stated on behalf of Rab. For R. Huna stated that Rab said: If a man confessed to a liability for a fine, even though witnesses subsequently appeared [and gave evidence to the same effect], he would be exempt.²⁴

The above text states: R. Huna stated that Rab said: If a man confessed to a liability for a fine, even though witnesses subsequently appeared [and gave evidence to the same effect], he would be exempt. R. Hisda objected to [this view of] R. Huna [from the following]: It happened that R. Gamaliel [by accident] put out the eye of Tabi²⁵  his slave.²⁶  He rejoiced over it very much, [as he was eager to have this meritorious slave set free],²⁷  and when he met R. Joshua he said to him: 'Do you know that Tabi my slave has obtained his freedom?' 'How was that'? said the other. 'Because', he replied, 'I have [accidentally] put out his eye.' Said R. Joshua to him.' 'Your words have no force in law, since there were no witnesses for the slave.'²⁸  This of course implies that had witnesses at that time been available for the slave, R. Gamaliel would have been under obligation [to set him free]. Does not this show us that if a man confesses to a liability for a fine, if subsequently witnesses appear and testify to the same effect, he would be liable?²⁹  — R. Huna, however, said to him³⁰  that this case of R. Gamaliel was different altogether, as he made his confession not in the presence of the court of Law.³¹  But was R. Joshua not the president of the Court of law?³²

1. Ex. XXI, 26.
2. Ibid. 27.
3. V. p. 427. n. 7.
4. V. p. 427, n. 8.
5. In the case made out by Raba where a contradiction of the subject matter of evidence was followed by proof of an alibi.
6. For if the evidence regarding the theft fell to the ground it carried with it the evidence regarding the slaughter of the stolen animal.
7. Which of course did not affect their evidence regarding the theft which was given on an earlier occasion.
8. Agreeing thus with view of Raba.
9. Because they transgressed the negative commandment, 'Thou shalt not bear false witness against thy neighbour'. Ex. XX, 13. and the punishment of thirty-nine lashes is administered for breaking such and similar negative commandments.
10. Ex. XX. 13.
11. Should the same witnesses afterwards become zomemim.
12. Cf. Sanh. 86b; Mak. 13b and Shebu. 4a.
13. Were they even subsequently proved zomemim.
14. In which case the prohibition of this offence could thus never be able to serve as a warning of a pending execution at a court of law and lashes could therefore be administered.
15. In which case their falsity has been proved beyond any doubt.
16. Cf. Deut. XIX, 15.
17. For the act of stealing testified to by two witnesses.
18. As the act of slaughter or sale was testified to by one witness who, in matters of fine, could be of no effect at all even for the purpose of imposing an oath. [V. J. Shebu. VI, and S. Strashun's Glosses, a.l.] so also is the admission of the thief himself of no avail in these matters.
19. Being a capital offence in which all possible civil liabilities have to merge.
20. So that at the time of the slaughter or sale the thief was a joint owner of the animal.
21. Temple property is not subject to the law of the fine.
22. V. the discussion in Gemara.
23. Cf. B.B. 32a and Sanh. 30a.
24. From the fine; cf. supra p. 62.
25. V. Suk. II, 1 and Ber. II, 7.
26. Who would thereby receive his freedom in accordance with Ex. XXI. 26.
27. He was, however, unable to manumit him as it was considered a sin to manumit heathen slaves. V. Ber. 47b and Git. 38a.
28. And the obligation imposed on a man to let his slave go free for his eye's sake and for his tooth's sake is only a matter of fine.
29. In contradiction to the view of Rab stated by R. Huna.
30. I.e., R. Hisda.
31. And is therefore not considered in the eye of the law a legal confession to bar subsequent evidence.
32. [Shortly after the death of R. Johanan b. Zakkai, v. Halevy, Doroth, I.e., p. 154, contra Weiss, Dor, 130.]