Bava Kamma - Daf 75
- One who admits to a קנס while witnesses are approaching
On the previous Daf, Rav said: 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. Shmuel disagrees, and says he is liable. Rav challenged him from a Baraisa: ראה עדים שממשמשים ובאים – If [the thief] saw witnesses approaching to testify against him, and he preempted them and admitted in Beis Din that he stole, but did not shecht or sell it, he only pays קרן, and not כפל. Rebbe Elazar bar Rebbe Shimon says: יבואו עדים ויעידו – let the witnesses come and testify, and the thief will pay כפל. Shmuel concedes that the Tanna Kamma disagrees with him but says that Rebbe Elazar supports him. Rav can say that all Tannaim agree with him. Although Rebbe Elazar obligates the thief in כפל, that is only here, דקא מודי מחמת ביעתותא דעדים – since he only admitted because of his fear of the approaching witnesses. But in Rav’s disagreement with Shmuel, דמודה מעצמו – where he admitted on his own, Rebbe Elazar can agree he is exempt from קנס.
- מודה בקנס where his admission does not obligate him in anything
Rav Hamnuna reasoned that Rav’s ruling was only where one admitted to stealing and witnesses testified as much, שהרי חייב עצמו בקרן – because he obligated himself in paying the principal. An admission which requires payment is a valid admission. But if witnesses testified that he stole, and he admitted that he sold or shechted it, and then witnesses testified so, he does pay ד' וה', שהרי פטר עצמו מכלום – because he had exempted himself from paying anything in his admission, since he knew his admission would not obligate him to pay קנס. Rava challenged him from the proof brought against Rav from the incident of Rabban Gamliel’s slave Tavi, where Rebbe Yehoshua implied that witnesses coming after Rabban Gamliel’s admission would set his slave free. There, Rabban Gamliel’s admission did not require payment, yet Rav Huna did not defend Rav with this distinction!? Rebbe Yochanan also stated that only one who admits to a liability remains exempt from the קנס after witnesses testify. Rav Ashi brings support from a Mishnah and a Baraisa.
- עדות שאי אתה יכול להזימה
In a Baraisa, Sumchos says: הן משלמין תשלומי כפל – [The zomemin] pay כפל,והוא משלם תשלומי שלשה לפר ושנים לאיל – and [the thief] pays the additional threefold payment for [shechting] a bull, and twofold for a ram. Sumchos cannot be discussing a case recorded in the Baraisa, and Rav Acha brei d’Rav Ika eventually explains the case: witnesses testified that someone stole, and he agreed that he stole, and also shechted (or sold), but did not steal in front of them, but before two other witnesses whom he named. The first pair was exposed as zomemin, and the other witnesses later testified to his theft and shechting. [The thief pays the principal, and the zomemin pay the כפל.] Because the thief admitted to their testimony, these witnesses would not be punishable even if they are later found zomemin. The Rabbonon hold: כל עדות שאי אתה יכול להזימה לא הויא עדות – any testimony which you cannot refute through הזמה is not valid testimony, so their testimony cannot obligate the thief to pay the additional threefold. Sumchos considers the testimony valid, so he pays the threefold. The Gemara clarifies that ordinarily (such as witnesses who do not identify the time of the incident), Sumchos agrees with the Rabbonon, and only argues here, where the reason they cannot be punished through הזמה is because the thief supported their testimony.
