Bava Kamma 73a (עג.) — the Talmud in English

because of the loss suffered by purchasers,

so that purchasers who were unaware of the disqualification of the edim zomemim until they were discredited in court would not suffer a loss, having relied on them and signed deeds of sale by which they purchased property from others; and if we disqualify the witnesses retroactively, from the time of their testimony, these purchasers will lose their money, because the document signed for them by these witnesses is not a document at all. And we explain:

what is the practical difference between them

with regard to the halakha between the two reasons in Rava’s opinion? And we explain: for example,

where two testified concerning one, and two concerning one,

where two witnesses testified concerning one of the witnesses that he was with them elsewhere, and two other witnesses testified concerning the second witness that he was with them elsewhere.

Alternatively:

for example,

they disqualified them

two witnesses by testifying that they were disqualified

because of robbery,

as they testified about them in Iyyar that they had robbed money in Nisan—and in these two cases there is a practical legal difference between the two reasons stated in Rava’s opinion:

For

according to that formulation that you said: because it is a novel ruling,

they are not disqualified retroactively, and if so, in these two cases there

is no

novel ruling, and they are disqualified retroactively.

Whereas

according to that formulation that you said:

the Sages believed them until the time their disqualification became established in court, and

because of the loss suffered by purchasers,

this reason

does apply

even in these two cases, and they are disqualified only from the time they were discredited or their disqualification was testified to before a court.

Rabbi Yirmeya of Difti said:

There was an incident in which

Rav Pappi acted in accordance with the ruling of

Rava,

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

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

who holds that he is disqualified retroactively.

And this is how the Gemara concludes:

And the halakha is in accordance with Abaye’s opinion

when he disagrees with Rava,

in

six disputes whose mnemonic is

Yud

Lamed Kuf Gimel

Mem,

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

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

we learned

in our Mishna:

He stole on the basis of the testimony of two witnesses, and slaughtered or sold the animal on the basis of their testimony, and they were found to be edim zomemim,

these witnesses

pay the entire amount.

Is it not so

that our Mishna is dealing with a case such as this:

they testified

first

about the theft, and

then

they testified again about the slaughter, and they were discredited

first

concerning the theft, and

then

they were discredited again concerning the slaughter?

And if so, it may be demonstrated from our Mishna that “a discredited witness is disqualified only from that point onward,” since:

And if it enters your mind that “a discredited witness

is disqualified

retroactively—

from the time he gave his false testimony—

”,

the following difficulty arises:

For

these

witnesses,

since they were discredited concerning the theft, it became retroactively evident that when they testified concerning the slaughter they were disqualified,

since they were discredited concerning the theft, about which they had testified before the slaughter, it became clear that at the time of the testimony concerning the slaughter they were already disqualified from testimony. If so,

why do they pay for the slaughter

about which they testified while disqualified!?

Rather, it must necessarily be that they are disqualified only from the time they are discredited. Since they testified concerning the slaughter before they were discredited concerning the theft, they were valid witnesses for the testimony concerning the slaughter; and if they were also discredited concerning that testimony, they are liable for it under the principle of “as he plotted.”

They said,

the students of the academy, rejecting the proof:

Here,

in our Mishna,

what are we dealing with?

With

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

before they were discredited concerning the theft!

They said,

the students of the academy, expressing astonishment at the answer:

But

ultimately, when they were subsequently discredited concerning the theft [once they were discredited concerning the theft as well, after being discredited concerning the slaughter],

it

became evident

retroactively

that when they testified concerning the slaughter they were disqualified [they were disqualified at the time of the testimony concerning the slaughter]. And if you would say that a discredited witness is disqualified retroactively,

then

why do they pay for the slaughter,

since it turns out that disqualified witnesses testified concerning it, and they are not liable under the principle of “as he plotted”!?

And the Gemara concludes by rejecting the proof:

And the halakha is

that they testified simultaneously

concerning the theft and the slaughter; that is, within the time required for speech, of the testimony concerning the theft they also testified concerning the slaughter,

and they were discredited.

That is, although “a discredited witness is disqualified retroactively,” he nevertheless remains valid with regard to those testimonies that he gave within the time required for speech of the testimony concerning which he lied;

therefore, they are liable for the testimony concerning the slaughter, since they were valid witnesses for it, as it was stated within the time required for speech of the false testimony concerning the theft.

Shall we say that it is a dispute between tannaim—is it possible to establish that the tannaim disputed whether “a conspiring witness is disqualified from that point onward or retroactively,” from that which was taught in a beraita:

Is it necessary to establish that the tannaim disputed whether “a conspiring witness is disqualified from that point onward or retroactively,” based on that which was taught:

There were two who testified against him that he stole, and they

the very same witnesses

testified against him that he slaughtered:

And they were refuted concerning the theft: Testimony that part of it was nullified is entirely nullified

and the accused is not held 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 circumstance

does he pay double, and we do not say that the testimony concerning the theft was also nullified through the refutation concerning the slaughter

when there are two testimonies,

and he proceeds to explain it.

But when there is one testimony

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

“Testimony that part of it was nullified is entirely nullified.”

The Gemara explains: But

what

“when there are two testimonies,”

did Rabbi Yosei mean, and

and what

“when there is one testimony”

did he say?

If you say

that

“when there are two testimonies”

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

literally two testimonies,

that is,

two groups,

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

And

“when there is one testimony”

means

one group

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

one after the other

not within toch kedei dibbur—

And

concerning this he

said

and introduced the novel ruling

Rabbi Yosei:

That

when there is one testimony by one group,

even if it was

one after the other: When they testify concerning the theft and then testify concerning the slaughter, when they are refuted concerning the slaughter, testimony that part of it was nullified is entirely nullified, and they are refuted concerning the theft

[when one group testified concerning the theft and afterward concerning the slaughter, not within toch kedei dibbur, since the testimony concerning the slaughter was refuted, the testimony concerning the theft that they gave was also nullified]—

This being so, it is impossible to say:

From where could this be derived?

What reasoning is there for saying that the testimony concerning the theft should be nullified, when at the time they testified concerning it they were fit witnesses!?

Rather, is it not

necessarily

“when there are two testimonies”:

namely,

one testimony

of a single group, which is

akin to 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 toch kedei dibbur. In such a case, if they were refuted concerning the slaughter, the testimony concerning the theft was not nullified.

But

“when there is one testimony”:

that is, the testimony of one group

simultaneously,

within toch kedei dibbur

not

is the testimony concerning the theft sustained; rather, it is nullified because the testimony concerning the slaughter, which was stated together with it simultaneously, was nullified.

The reason is that Rabbi Yosei holds: Since it was retroactively revealed that they testified falsely, even the testimony stated within toch kedei dibbur before the testimony concerning which they lied must be nullified.

And they thought,

the members of the academy were assuming in their interpretation of the beraita:

Everyone

—both Rabbi Yosei and the Sages—holds

“within toch kedei dibbur is equivalent to speech,”

meaning: what is said within the measure of kedei dibbur is considered as though it was said simultaneously—

And if so,

is it not with regard to this that they disagree

—the Sages, who deem the testimony concerning the theft valid, and Rabbi Yosei, who disqualifies the testimony concerning the theft

for the Sages hold:

A conspiring witness

is disqualified from that point onward, and since from that moment

that they were refuted concerning the slaughter

they are being refuted,

meaning: Since we attribute the refutation only from the time of the refutation onward, and not retroactively, therefore

with regard to the slaughter, concerning which they are being refuted, they are refuted; with regard to the theft, concerning which they are not being refuted, they are not refuted,

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

Whereas

Rabbi Yosei holds:

A conspiring witness

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

becomes disqualified,

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

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

They said

the members of the academy, rejecting this interpretation of the beraita:

The matter is not as you said. Rather,

if

it were agreed upon by both Rabbi Yosei and the Sages that

“within toch kedei dibbur is equivalent to speech,”

then

everyone would hold that he is disqualified retroactively,

meaning: everyone would agree that since “he is disqualified retroactively,” the testimony concerning the theft, which was stated within toch kedei dibbur before it, must also be nullified, for they did not dispute that “a conspiring witness is disqualified retroactively”—

Rather, here they dispute

“whether within toch kedei dibbur is equivalent to speech,”

Rabbi Yosei and the Sages:

Rabbi Yosei and the Rabbis: