Bava Kamma - Daf 73
- Machlokes about two testimonies given within תוך כדי דיבור and the second is הוזם
The Gemara suggests that Tannaim dispute when an עד זומם is disqualified. A Baraisa says that if witnesses testified that someone stole an animal and shechted it, and were found zomemin about the shechitah, the Tanna Kamma says the thief pays כפל, and the witnesses pay the remaining threefold payment. Rebbe Yose differentiates between “two sets” of witnesses and “one set,” and the Gemara explains he actually means a single set of witnesses and is saying that if the two testimonies were given at different times, he agrees with the Tanna Kamma, but if they were given בבת אחת – at one time, he rules עדות שבטלה מקצתה בטלה כולה – testimony which became partially invalidated is completely invalidated. The Gemara assumes all agree תוך כדי דיבור כדיבור דמי – one statement made after another within the time required for an utterance is considered part of the same utterance, rendering these two testimonies as one. The Rabbonon hold עדים זוממים are disqualified from when they are discredited, so their testimony of the theft remains valid, and Rebbe Yose holds they are disqualified retroactively, so they were invalid witnesses at the time of the theft testimony.
- Two time frames of תוך כדי דיבור
The Gemara responds that everyone may agree that an עד זומם is disqualified retroactively. The Rabbonon hold that תוך כדי דיבור is not כדיבור, so although their second testimony was invalidated, the first remains. Rebbe Yose holds תוך כדי דיבור כדיבור, so the first testimony is also invalidated.
The Gemara asks that this contradicts another statement of Rebbe Yose. He said that if one declares an animal "תמורת עולה תמורת שלמים" – a substitute for an olah, a substitute for a shelamim, both designations take effect. However, if he said "תמורת עולה" and reconsidered and said "תמורת שלמים", it is only a temuras olah. Because this seems obvious, Rav Pappa explained the case was where he reconsidered תוך כדי דיבור, and Rebbe Yose rules that it is not considered part of the same דיבור!?
The Gemara answers that there are two time frames of תוך כדי דיבור: (1) כדי שאילת תלמיד לרב – enough time for a student to greet a teacher, which is "שלום עליך רבי ומורי". Rebbe Yose does not hold this time frame joins two statements into one. (2) כדי שאילת הרב לתלמיד – Enough time for a teacher to greet a student, which is merely "שלום עליך". Rebbe Yose considers this time frame one דיבור.
- היא הכחשה תחילת הזמה
Rava said that if witnesses testified that someone incurred the death penalty (and he was found guilty), then they were contradicted by other witnesses (rendering their testimony ineffective), and later they were found zomemin, they are killed. Although their testimony was contradicted before they were found zomemin, הכחשה תחילת הזמה היא – contradiction is the beginning of הזמה, אלא שלא נגמרה – but the process was not completed. Rava brought support from a Baraisa discussing witnesses who testified that someone blinded his slave and then knocked out his tooth (which would free the slave and obligate the master to pay for his tooth), and they were found zomemin, they pay the slave for his eye. Rava explains the case is where witnesses first testified that the master damaged his tooth and then his eye (which would award the slave the higher payment for his eye), then a second pair contradicted them, saying the reverse took place (reducing the payment to that of a tooth), and this second pair was found zomemin. Since the second pair was immediately contradicted (by the first), and they still must pay the slave for his eye, this proves הכחשה תחילת הזמה. Abaye rejects the proof, explaining that the case can be דאפכינהו ואזמינהו - where [a second pair of witnesses] simultaneously contradicted and also rendered [the first pair] zomemin.
