Bava Kamma 73a — the Talmud in English

because of the loss of purchasers,

so that the purchasers who did not know of the disqualification of the scheming witnesses until they were refuted in court would not suffer a loss, and had them sign deeds of sale by which they purchased from others; and if we disqualify the witnesses retroactively, from the time of their testimony, these purchasers will lose their money, because the document that these witnesses signed for them is not a document at all. And we explain:

what is the difference between them,

in practice, between the two reasons according to Rava? And we explain: for example,

that two testified concerning one, and two concerning one,

that two witnesses said concerning one [of the witnesses] that he had been with them, and another two testified concerning the second that he had been with them.

Alternatively:

for example,

they disqualified them

—two witnesses—through the testimony of two others

as robbers,

who testified about them in Iyar that they had robbed money in Nisan—and in these two ways there is a practical legal difference between the two reasons stated according to Rava:

For

according to that formulation which you said: because of a novelty,

they are not disqualified retroactively; if so, in these two ways there

is no

novelty, and they are disqualified retroactively.

Whereas

according to that formulation which you said:

the Sages believed them until the time that their disqualification was clarified in court, and

because of the loss of purchasers,

this reason

does apply

even in these two ways, and they are disqualified only from the time that they were refuted or testified concerning their disqualification before the court.

Rabbi Yirmeya of Difti said:

There was an incident, and

Rav Pappi acted in accordance with the ruling

of Rava,

and validated the testimony of the witnesses before they were refuted.

Rav Ashi said: The halakha is in accordance with Abaye’s ruling,

who holds: retroactively he is disqualified.

And thus the Gemara concludes:

And the halakha is in accordance with Abaye’s ruling

when he disagrees with Rava,

in

six disputes whose mnemonic is

Yod-Ayin

-Lamed-Kuf-Gimel

-Mem,

and this dispute is one of them, and it is alluded to by the letter ayin, namely: “scheming witness.”

The Gemara raises an objection, according to the one who holds: “A scheming witness is disqualified retroactively,” from that which

we learned

in our Mishna:

He stole on the basis of two [witnesses], and slaughtered and sold on their basis, and they were found to be scheming,

these [witnesses]

pay the entire amount.

Is it not so,

that our Mishna is dealing with a case such as

that they testified

first

about the theft, and

then

returned and testified about the slaughter, and were refuted

first

about the theft, and

then

returned and were refuted about the slaughter?

And if so, it should be possible to prove from our Mishna that “a scheming witness is disqualified from this point onward,” for:

And if it enters your mind: “A scheming witness

is disqualified

retroactively—

from the time that he testified his false testimony—

is disqualified,”

this is difficult:

For

these

witnesses,

since they were refuted concerning the theft, it became clear retroactively that when they testified concerning the slaughter they were disqualified,

since they were refuted concerning the theft about which they testified before the slaughter, it became clear that at the time of the testimony concerning the slaughter they were already disqualified for testimony; and if so,

why do they pay for the slaughter

about which they testified while disqualified!?

Rather, necessarily they are disqualified only from the time that they are refuted; and since they testified concerning the slaughter before they were refuted concerning the theft, they were valid for the testimony concerning the slaughter, and if they were also refuted concerning it, they are liable for it under “as he plotted.”

They said,

the members of the academy, to reject the proof:

Here,

in our Mishna,

with what are we dealing:

with

a case in which they were refuted concerning the slaughter first,

before they were refuted concerning the theft!

They said,

the members of the academy, to express astonishment at the answer:

But

in the end, when they are again refuted concerning the theft [

when, after the refutation concerning the slaughter, they were also refuted concerning the theft],

the matter became clear

retroactively,

that when they testified concerning the slaughter they were disqualified [

for they were disqualified at the time of the testimony concerning the slaughter]. And if you would say: a scheming witness is disqualified retroactively,

why do they pay for the slaughter,

for it turns out that disqualified witnesses testified concerning it, and they are not liable for it under “as he plotted”!

And the Gemara concludes by rejecting the proof:

The halakha is

And the Gemara concludes by rejecting the proof:

And the halakha, that they testified simultaneously concerning the theft and concerning the slaughter, meaning: within the time of a statement of the testimony concerning the theft, they also testified concerning the slaughter,

and they were refuted.

That is: although “a scheming witness is disqualified retroactively,” nevertheless he is still valid for those testimonies that he stated within the time of a statement of the testimony concerning which he lied;

and therefore they are liable for the testimony concerning the slaughter, for they were valid for it, since it was stated within the time of a statement of the false testimony concerning the theft.

Shall we say that it is a dispute among tannaim,

is it possible to compel the conclusion that tannaim disagreed as to whether “a conspiring witness is disqualified from this point onward or retrospectively,” from that which was taught:

There were two testifying about him that he stole, and they

the very same witnesses

testified about him that he slaughtered:

And they were refuted concerning the theft: testimony of which part was nullified, all of it was nullified

and they do not make the defendant liable on the basis of the testimony concerning the slaughter, for “if there is no theft, there is no slaughter and no sale.”

And if

they were refuted concerning the slaughter

alone:

he

the thief

pays double payment,

for they were not refuted concerning the theft,

and they pay a threefold payment

because they sought to cause him an unlawful loss.

Rabbi Yosei said:

In what case are these words said

that he pays double, and we do not say that even the testimony concerning the theft was nullified through the refutation concerning the slaughter:

with two testimonies,

and he proceeds to explain it.

But with one testimony [as he proceeds to explain], since the testimony concerning the slaughter was refuted, we say:

“Testimony of which part was nullified, all of it was nullified.”

And the Gemara explains: But

what

“with two testimonies”

that Rabbi Yosei said,

and what

“with one testimony”

that he said?

If you say

that

“with two testimonies”

means that the testimony concerning the theft and the testimony concerning the slaughter were

in two actual testimonies,

namely,

in two groups,

then in this manner, if the second group, which testified concerning the slaughter, was refuted, the testimony concerning the theft of the other group was not nullified.

And

“with one testimony”

means

in one group

that testified concerning the theft and concerning the slaughter, and their testimony was

one after the other

not within kedei dibbur

—

And

concerning this he

said

and innovated,

Rabbi Yosei:

That

with one testimony, in one group,

even though it was

one after the other: when they testify concerning the theft and then testify concerning the slaughter, when the testimony concerning the slaughter is refuted, testimony of which part was nullified, all of it was nullified, and they were refuted concerning the theft

[when a group testified concerning the theft and afterward concerning the slaughter, not within kedei dibbur, since the testimony concerning the slaughter was refuted, even the testimony concerning the theft that they had given was nullified]—

Thus it is impossible to say: for

from where would this come

what reasoning is there to say that the testimony concerning the theft should be nullified, when at the time they testified concerning it they were fit!?

Rather, is it not

necessarily that

“with two testimonies”:

that is,

with one testimony

of one group, which is

like two testimonies

of two groups,

and what are they? One group

that testified concerning the theft and concerning the slaughter

one after the other

not within kedei dibbur; and in this manner, if they were refuted concerning the slaughter, the testimony concerning the theft was not nullified.

But

“with one testimony”:

that is, with the testimony of one group

at once

within kedei dibbur,

not

does the testimony concerning the theft stand; rather, it is nullified because the testimony concerning the slaughter, which was stated with it at once, was nullified.

And the reason is that Rabbi Yosei holds: since it was retrospectively revealed that they testified false testimony, even the testimony stated within kedei dibbur before the testimony in which they lied must be nullified.

And they held,

the members of the academy were of the opinion in explaining the beraita:

According to everyone between Rabbi Yosei and the Sages—hold:

“within kedei dibbur is considered speech,”

that is, what is stated within the measure of kedei dibbur is as though it was stated at once

—

And if so,

is it not concerning this that they disagree,

the Sages, who validate the testimony concerning the theft, and Rabbi Yosei, who invalidates the testimony concerning the theft:

for the Rabbis hold:

a conspiring witness

is disqualified from this point onward, and since from that time

that they were refuted concerning the slaughter

they are being refuted,

that is: since we attribute the refutation only from the time of the refutation onward, and not retrospectively, therefore:

concerning the slaughter, over which they are being refuted, they were refuted; concerning the theft, over which they are not being refuted, they were not refuted,

that is, only the testimony concerning the slaughter, concerning which they were indeed refuted, is nullified, but the testimony concerning the theft, concerning which they were not refuted, is not nullified.

Whereas

Rabbi Yosei holds:

a conspiring witness

is disqualified retrospectively, and since immediately, when they testified, he

is disqualified,

when they were refuted concerning the slaughter, they were also refuted concerning the theft, for within kedei dibbur is considered speech,

[since their disqualification is retrospective, the refutation through which they were refuted concerning the slaughter was effective also to nullify the testimony concerning the theft that was within kedei dibbur, for “it is considered speech.”]

They said,

the members of the academy said to reject this interpretation of the beraita:

The matter is not as you said, but rather:

if,

if it were agreed both by Rabbi Yosei and by the Rabbis that

“within kedei dibbur is considered speech,”

then

according to everyone he is disqualified retrospectively,

that is: everyone would concede that since “he is disqualified retrospectively,” even the testimony concerning the theft, which was stated within kedei dibbur before it, must be nullified, for on this they did not disagree, that “a conspiring witness is disqualified retrospectively”—

Rather, here concerning

“within kedei dibbur is considered speech”

they disagree,

Rabbi Yosei and the Rabbis: