Bava Kamma 75bבבא קמא ע״ה ב
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75bע״ה ב

אלא לאו הא קמ"ל גנב על פי שנים וטבח על פי עד אחד או על פי עצמו הוא דלא מחייב עצמו בקרן

Rather, is it not correct to say that by citing the more complicated case, this is what the mishna teaches us: It is only in this case, where it is established that the thief stole an animal based on the testimony of two witnesses, and it is established that he slaughtered or sold it based on the testimony of one witness or based on his own admission, and where he does not obligate himself through his admission to pay the principal, that he is obligated to pay the fine.

הוא דאמרינן ע"פ עצמו דומיא דע"פ עד אחד מה ע"פ עד אחד כי אתי עד אחד מצטרף בהדיה מחייב על פי עצמו נמי כי אתו עדים מחייב

The Gemara elaborates: In other words, it is only in that case, where the theft is established based on the testimony of two witnesses, that we say that liability based on his own admission is similar to the testimony of one witness, in that just as when the slaughter is established based on the testimony of one witness, if one other witness later comes he joins together with the first witness and together their testimony is rendered a valid testimony of two witnesses and the thief becomes liable to pay, so too, in a case when the slaughter is established based on his own admission, if witnesses subsequently come and testify, he becomes liable to pay the fine, as his admission would not have rendered him liable to pay any payment.

אבל גנב וטבח ומכר ע"פ עד אחד או ע"פ עצמו דחייב עצמו בקרן לא אמרינן על פי עצמו דומיא דעל פי עד אחד

But if it is established that the thief stole an animal and slaughtered or sold it, all based on the testimony of one witness or based on his own admission, in which case through his admission he obligates himself to pay the principal amount, we do not say that when witnesses testify subsequent to his own admission it is similar to when they arrive subsequent to the testimony of one witness, and he is liable to pay the fine in both cases. Rather, since in this case his admission would have rendered him liable to pay the principal due to the fact that the theft was not established based on the testimony of two witnesses, it is considered a proper admission, which exempts him from paying the fine.

ברייתא דתניא ראה עדים שממשמשין ובאין ואמר גנבתי אבל לא טבחתי ולא מכרתי אינו משלם אלא קרן למה לי למיתנא ואמר גנבתי אבל לא טבחתי ולא מכרתי ניתני או גנבתי או טבחתי ומכרתי

The baraita that supports Rav Hamnuna’s opinion is the one cited earlier, as it is taught: If a thief saw witnesses who were approaching with the intent to testify against him, and at that point he said: I admit that I stole an animal, but I did not slaughter or sell it, he pays only the principal. Why do I need the baraita to teach: And the thief said: I admit that I stole an animal but I did not slaughter or sell it? Let it teach a simpler case, in which the thief said either: I stole the animal, or: I slaughtered it, or: I sold it.

אלא הא קמ"ל טעמא דאמר גנבתי הוא דחייב עצמו בקרן דפטור אבל אמר לא גנבתי ובאו עדים שגנב וחזר ואמר טבחתי ומכרתי ובאו עדים שטבח ומכר דלא חייב עצמו בקרן חייב אלמא הודאה דטביחה לאו הודאה היא

Rather, by choosing the more complicated case, this is what the baraita teaches us: The only reason that the thief is exempt from payment is that he says: I stole the animal, as in that case he obligated himself to pay the principal. But if he says: I did not steal, and witnesses came and testified that he did steal an animal, and subsequently he changed his claim and says: I slaughtered it, or: I sold it, and then witnesses came and confirmed that he slaughtered or sold it, in which case the thief did not obligate himself to pay the principal or any other payment, he would be liable to pay the fourfold or fivefold payment. Apparently, an admission to the slaughter of a stolen animal is not considered a valid admission, as such an admission does not obligate the perpetrator to pay a fine.

אמרי לא היא גופה קמ"ל דכיון דאמר גנבתי אע"ג דאמר לא טבחתי ולא מכרתי ובאו עדים שטבח ומכר פטור מאי טעמא

The Gemara says, in rejection of this second proof: No, it is possible to explain the reason the tanna of the baraita chose to present this case in a different manner, as it teaches us this halakha itself: That once the thief says: I stole the animal, even if he also says: I did not slaughter or sell it, and later witnesses came and testified that he slaughtered or sold it, he is exempt from paying the fourfold or fivefold payment. What is the reason for this exemption?

תשלומי (ארבע) חמשה אמר רחמנא ולא תשלומי ארבעה ולא תשלומי שלשה

The reason is that the Merciful One states in the Torah that there is a payment of four sheep for a sheep and five oxen for an ox (see Exodus 21:37). This indicates that a thief can be rendered liable to pay, respectively, a fourfold or fivefold payment, but not a fourfold payment for an ox, nor a threefold payment for a sheep. In other words, one should not view the fines as independent of each other, that if the thief is found with the animal he pays as a fine the double payment, and if he slaughtered or sold it he pays a different fine, i.e., the fourfold or fivefold payment. Rather, the fourfold or fivefold payment comprises the principle, the double payment, and an additional two or three times the principle. By admitting to his act of theft, the thief exempts himself from the double payment, and the remaining fine for slaughtering a sheep would be a threefold payment, or a fourfold payment for an ox, which are not mandated by the Torah.

לימא כתנאי היו שנים מעידין שגנב והיו שנים מעידים אותו שטבח ומכר הוזמו עדי גניבה עדות שבטלה מקצתה בטלה כולה

The Gemara proposes: Let us say that the opinion of Rav Hamnuna and Rabbi Yoḥanan is the subject of a dispute between tanna’im. As it is taught in a baraita: If two witnesses testify that some-one stole an animal, and two others testify against him that he slaughtered or sold the animal, and the witnesses who had testified concerning the theft were rendered conspiring witnesses, the thief is exempt from all payment, as testimony that was partially invalidated is entirely invalidated. If the testimony concerning the theft was undermined, the testimony concerning the slaughter or sale is thereby rendered irrelevant. Consequently, the alleged thief is exempt from any payment.

הוזמו עדי טביחה הוא משלם תשלומי כפל והן משלמין תשלומי שלשה משום סומכוס אמרו הן משלמין תשלומי כפל והוא משלם תשלומי שלשה לפר ושנים לאיל

If the witnesses who testified concerning the slaughter or sale were rendered conspiring witnesses, but the testimony concerning the theft remains credible, the thief pays the double payment, and the conspiring witnesses pay a threefold payment, as that is the loss they sought to impose on the thief. The Sages said in the name of Sumakhos: The witnesses pay the double payment, and the thief pays a threefold payment for an ox and a twofold payment for a ram. This concludes the baraita.

אהייא קאי סומכוס אילימא ארישא לית ליה לסומכוס עדות שבטלה מקצתה בטלה כולה

The Gemara analyzes the statement of Sumakhos: To which clause in the baraita is Sumakhos referring? If we say that he is referring to the first clause, in which the testimony concerning the theft is invalidated, this is impossible. Doesn’t Sumakhos accept the principle that testimony that was partially invalidated is entirely invalidated, in this case rendering the testimony concerning the slaughter or sale irrelevant if there is no testimony concerning the theft?

ואלא אסיפא שפיר קאמרי רבנן הוא משלם תשלומי כפל והם משלמין תשלומי שלשה

But rather, he must be referring to the latter clause of the baraita, in which the testimony concerning the slaughter or sale is invalidated. This, too, is impossible, as in this case the Rabbis, i.e., the first tanna of the baraita, say well, i.e., what they state is reasonable, and the thief pays the double payment and the witnesses pay a threefold payment. On what basis would Sumakhos dispute this ruling?

אלא מילתא אחריתי איכא בינייהו כגון דאתו בי תרי אמרי ליה גנבת אמר להו אין גנבתי וטבחתי ומכרתי מיהו לא בפניכם גנבתי ואייתי סהדי ואזמינהו דלא באפייהו גנב ואייתי בעל הבית סהדי ואסהידו ביה דגנב וטבח ומכר

Rather, it must be that Sumakhos is referring to a different case entirely, one that is not mentioned explicitly in the baraita, and a different matter is at the core of the dispute between them. Sumakhos is referring to a case where two people come and say to the thief: You stole an animal. The thief said to them in reply: Yes, I did steal the animal, and moreover, I slaughtered it, or: I sold it. But I did not steal it in your presence, and your testimony that you saw me steal it is false. And subsequently the thief brought new witnesses who rendered the original witnesses conspiring witnesses, by testifying that they were in a different place at the time they claimed that the theft occurred, thereby proving that the thief did not steal in their presence. And finally, the owner of the animal brought other witnesses who testified that the thief stole the animal and slaughtered or sold it.

ובהודאת טביחה קמיפלגי

And Sumakhos and the Rabbis disagree over whether an admission to the slaughter of a stolen animal is a valid admission, even though it does not lead to liability to pay any payment. Both parties to the dispute agree that the admission of a perpetrator only in response to the testimony of witnesses is not a valid admission.

דרבנן סברי אע"ג דהודאה דגניבה מחמת עדים הוא דקא מודה הודאה דטביחה הודאה היא ופטור

The dispute between them is that the Rabbis maintain that even though the thief’s admission concerning the theft itself is not a valid admission because it is due only to the witnesses who have testified against him that he admits his guilt, nevertheless, his admission concerning the slaughter of the animal is a valid admission, despite the fact it does not render the thief liable to pay a fine, and he is therefore exempt from the fourfold or fivefold payment. The conspiring witnesses must pay the double payment to the thief, since this is the amount of financial damage they sought to impose on him, while the thief pays the double payment to the owner, as valid witnesses ultimately testified that he stole the animal.

וסומכוס סבר כיון דהודאה דגניבה מחמת עדים הוא דקא מודה דטביחה לאו הודאה

And Sumakhos maintains that since the admission concerning the theft itself is not a valid admission because it was due only to the testimony of the witnesses that he admits his guilt, so too, the admission concerning the slaughter is not a valid admission, because it does not obligate him to pay a fine, as stated by Rav Hamnuna and Rabbi Yoḥanan.

והנך עדים קמאי דאזמינהו משלמין תשלומי כפל והוא משלם שלשה לפר ושנים לאיל

And consequently, those first witnesses to the theft, who were rendered conspiring witnesses, pay the double payment, as that is the amount of financial damage they sought to impose on him, and the thief pays the double payment to the owner of the animal, as valid witnesses ultimately testified that he stole it, and since his admission is invalid he must pay an additional threefold payment, for a total of a fivefold payment for an ox, or a twofold payment, for a total of a fourfold payment, for a ram. If this is their dispute, Sumakhos is in agreement with the opinion of Rav Hamnuna and Rabbi Yoḥanan, while the Rabbis disagree with this opinion.

אמר רב אחא בריה דרב איקא לא דכולי עלמא הודאה דטביחה לאו הודאה היא

Rav Aḥa, son of Rav Ika, said: No; it is possible to explain the baraita differently, as follows: Everyone, i.e., both Sumakhos and the Rabbis, maintains that an admission concerning the slaughter of a stolen animal is not a valid admission, as it does not render the perpetrator liable to pay any payment.

אלא בעדות שאי אתה יכול להזימה קמיפלגי כגון דאתו סהדי ואמרי ליה גנבת ואמר להו גנבתי וטבחתי ומכרתי מיהו לא בפניכם גנבתי אלא בפני פלוני ופלוני ואייתי סהדי ואזמינהו דלא באפייהו גנב ואתו פלוני ופלוני ואסהידו ביה דגנב וטבח ומכר

Rather, they disagree over the concept of testimony that you cannot render conspiratory testimony. Sumakhos and the Rabbis disagree with regard to a case where witnesses come and say to the thief: You stole an animal. And the thief said to them in response: I did steal an animal, and moreover, I slaughtered it, or: I sold it. But you are false witnesses, as it was not in your presence that I stole the animal, but in the presence of so-and-so and so-and-so. And the thief subsequently brought witnesses who established the first set of witnesses as conspiring witnesses by testifying that the thief did not steal the animal in their presence. And finally, so-and-so and so-and-so, the two people mentioned by the thief, came and testified against the thief, saying that he stole the animal and also slaughtered or sold it.

ובהא קמיפלגי דרבנן סברי הויא לה עדות שאי אתה יכול להזימה וכל עדות שאי אתה יכול להזימה לא הויא עדות

And it is with regard to this point that they disagree, that the Rabbis maintain that the testimony of so-and-so and so-and-so is testimony that you cannot render conspiratory testimony, as the thief himself admits that their testimony is true. And any testimony that you cannot render conspiratory testimony is not considered valid testimony. Their testimony is therefore discounted, which leaves only the thief’s statement. The thief pays the money he admitted he owes, i.e., the principal of the theft, but he is exempt from paying a fine. Meanwhile, the first witnesses, who had been rendered conspiring witnesses, pay the thief the double payment.

וסומכוס סבר עדות שאי אתה יכול להזימה הויא עדות

And Sumakhos maintains that testimony that you cannot render conspiratory testimony is nevertheless considered valid testimony. Therefore, the testimony of so-and-so and so-and-so is valid, and the thief must pay the fourfold or fivefold payment. Sumakhos states that the thief pays a threefold payment for an ox and a twofold payment for a ram. The reason is that the thief receives a double payment from the first, conspiring witnesses, which he gives to the owner of the animal, along with the remainder of the payment. This amounts to a threefold payment for an ox and twofold payment for a ram that he is required to pay from his own funds.

והא קיימא לן דעדות שאי אתה יכול להזימה לא הויא עדות הני מילי היכא דלא ידעי באיזה יום באיזה שעה דליכא לעדות כלל אבל הכא סיועי הוא דקא מסייעי ליה

The Gemara asks: But do we not maintain as an accepted principle that testimony that you cannot render conspiratory testimony is not valid testimony? It is not reasonable to suggest that Sumakhos would disagree with that principle. The Gemara answers: This statement applies in a case where witnesses say that they do not know on which day or at which time of day the events in question occurred, in which case no one could ever say to them: You were in a different place at that time, thereby rendering them conspiring witnesses. With regard to such a case one can say that in effect there is no testimony at all, as the vague statement of the witnesses does not allow them to be prosecuted as conspiring witnesses. But here the thief is supporting their testimony, which renders it more credible.

אמר מר הן משלמין תשלומי כפל מדקא מודה דגנב קרן בעי שלומי אמר רבי אלעזר משמיה דרב תני

The Master said in the baraita that the Sages stated in the name of Sumakhos: The witnesses pay the double payment. The Gemara asks: From the fact that the thief admits that he stole the animal, he is required to pay the principal amount regardless of any subsequent testimony provided by witnesses. Why, then, should the conspiring witnesses be required to pay a double payment, which includes the principal amount? Rabbi Elazar says in the name of Rav: Teach the baraita differently, and instead say that Sumakhos said that the witnesses are liable for