Bava Kamma - Daf 74
- Witnesses who are effective when contradicted do not prove הכחשה תחילת הזמה
On the previous Daf, Rava sought to prove that הכחשה תחילת הזמה - contradiction is the beginning of הזמה, from a case where witnesses testified that someone destroyed his slave’s tooth and then his eye (owing an eye payment), and a second pair reversed the order (reducing the payment to a tooth’s value), and the second pair was found zomemin and must pay for his eye. Rav Acha brei d’Rav Ika asked Rav Ashi that this case proves nothing, because although the second pair of witnesses was “contradicted,” סהדותא כוותייהו קא קיימא – the testimony followed by Beis Din would have remained like [the second pair] (if not for the הזמה), since in a case of conflicting witnesses, we obligate the lower amount! Thus, their testimony remained effective, and allowed for a הזמה liability. Rav Ashi answers that Rava’s proof was actually from the סיפא, which he presumes refers to three pairs of witnesses, like the רישא. The first pair testified that he destroyed the slave’s tooth and then his eye, then another pair reversed the sequence (reducing the payment), and the first pair is found zomemin. The Baraisa says they must pay for the eye (to the master), even though their testimony was rendered ineffective by the second pair.
- Witnesses to a death penalty who are contradicted receive מלקות
The Gemara says that Rebbe Yochanan and Rebbe Elazar disagree if witnesses who are contradicted and later found zomemin are killed. It proves that Rebbe Elazar holds they are not killed, because he said: עדים שהוכחשו בנפש לוקין – witnesses who were contradicted regarding their testimony about someone’s life (i.e., that he incurred the death penalty) receive lashes. If Rebbe Elazar held that if these witnesses would later be found zomemin, they would be killed, how can they receive מלקות when they are contradicted? The prohibition obligating malkus (לא תענה ברעך עד שקר) is a לאו שניתן לאזהרת מיתת ב"ד –a prohibition given to warn about the death penalty (since they could potentially be killed for this violation if they are found zomemin), and malkus are not given for such a לאו!? Rather, Rebbe Elazar must hold they would not be killed. The Gemara adds that if the witnesses were merely contradicted by other witnesses, they would not receive malkus (since we cannot determine who is lying), and the case must be בבא הרוג ברגליו – where the “murder victim” came on his own feet, disproving their testimony.
- מודה ואחר כך באו עדים
The next Mishnah states: גנב ע"פ שנים – If one stole according to two witnesses’ testimony, וטבח ומכר ע"פ עד אחד או ע"פ עצמו – and he shechted or stole the animal according to one witness’s testimony, or his own admission, משלם תשלומי כפל ואינו משלם תשלומי ד' וה – he pays כפל but does not pay ד' וה'. The Gemara explains that the apparently superfluous case of one witness is to compare it with the case of admission: just as with one witness, if another witness would join him, the thief would become liable for ד' וה', so too regarding admission, if witnesses would later testify to the shechitah (or sale) he would be liable for ד' וה'. This disagrees with what Rav Huna said in Rav’s name: מודה בקנס ואח"כ באו עדים פטור – one who admits being liable to a fine and witnesses then come and testify to his liability, he is still exempt. Rav Chisda challenged Rav Huna from an incident where Rabban Gamliel blinded his slave Tevi and was rejoicing greatly (because he wished to free this righteous slave but could not because of the Torah’s directive to enslave them forever). Rebbe Yehoshua informed him that his admission was ineffective, because there were no witnesses. This implies that if witnesses would appear, he would be liable to the fine to free him!? Rav Huna responded that Rabban Gamliel’s admission was not in Beis Din.
