Bava Kamma 74b — the Talmud in English

He blinded his eye

only

release through his eye

the slave goes out through his eye, and if

he knocked out his tooth

only, then

release through his tooth—

And if

he blinded his eye and

also

knocked out his tooth, release through his eye and his tooth

both together, and the master does not pay him the value of the second limb that he injured!?

He said

Abaye answered:

to you [as against your question]

in response to your question]

the verse says: “Now if a man strikes the eye of his slave or the eye of his maidservant and destroys it, he shall send him free

When a man strikes the eye of his slave or the eye of his maidservant and destroys it, he shall send him free

in place of his eye,”

and Scripture did not need to repeat and say: “in place of his eye,” except to teach us: in place of his eye he shall send him,

but not in place of his eye and his tooth,

but he shall pay its value.

And therefore Scripture said: “And if he knocks out the tooth of his slave or the tooth of his maidservant, he shall send him free

in place of his tooth,”

in order to teach us: in place of his tooth he shall send him,

but not in place of his tooth and his eye

but he shall pay its value.

Rav Idi bar Avin said: We too

in our Mishna

also have learned

that “contradiction is the beginning of hazama,” for we learned:

He stole on the testimony of two, and slaughtered and sold on their testimony, and they were found to be plotting witnesses, they pay him everything.

And

what, is it not

that our Mishna is dealing with a case in which

they testified

on some day

about the theft

that had been on Sunday,

and they returned and testified about the slaughter

that had been on Monday—

and they were refuted as plotting witnesses

on Tuesday

about the theft

because on Sunday they had been with the plotting witnesses,

and they returned and were refuted as plotting witnesses

on Wednesday

about the slaughter,

because even on Monday they had been with the plotting witnesses.

But since they were refuted as plotting witnesses concerning the theft

before they were refuted as plotting witnesses concerning the slaughter,

with regard to the slaughter they should have been

like

contradicted

concerning it, for if the testimony concerning the theft is annulled, he is not liable for the slaughter, since “if there is no theft, there is no slaughter and no sale,”

and

nevertheless

it teaches: they pay him everything,

including the twofold and fourfold payments that the witnesses sought to impose upon him for the slaughter.

And if so, it is proven that “contradiction is the beginning of hazama,” for:

And if it enters your mind: “

contradiction is not the beginning of hazama,”

why do they pay for the slaughter!?

For this testimony had already been annulled before they were refuted as plotting witnesses, so why should they pay on account of it?

Rather, is it not that you may learn from this: “

contradiction is the beginning of hazama.”

They said

the members of the academy, rejecting the proof from our Mishna that “contradiction is the beginning of hazama”:

Here,

in our Mishna,

what are we dealing with? In a case where they were refuted as plotting witnesses concerning the slaughter first!

The Gemara adds an explanation:

and

this question whether “contradiction is the beginning of hazama”

is a dispute

between them:

For it was stated:

Witnesses

concerning a person who killed a person,

whose testimony was contradicted

by other witnesses, saying: “So-and-so did not kill the person,”

and ultimately were refuted as plotting witnesses

by witnesses who said: “You were with us,” Rabbi Yohanan and Rabbi Elazar disagreed concerning this law

:

One

of them

said: They are killed,

even though their testimony was first contradicted and annulled before they were refuted as plotting witnesses, because “contradiction is the beginning of hazama.”

And one

of them

said: They are not killed,

since their testimony was first contradicted, and “contradiction is not the beginning of hazama.”

And the Gemara explains:

It may be concluded,

it can be proven

that it is Rabbi Elazar who said: They are not killed.

For

behold,

Rabbi Elazar said: Witnesses whose testimony was contradicted concerning a person,

that is, witnesses who came to have a person killed through their testimony, and their falsehood became clear not through hazama, these

are flogged,

because they transgressed: “You shall not answer against your fellow as a false witness.”

And from this statement it can be proven that according to Rabbi Elazar, witnesses whose testimony was contradicted and who were ultimately refuted as plotting witnesses are not killed, for:

And if it enters your mind,

that

it is Rabbi Elazar who said:

witnesses whose testimony was contradicted and who were ultimately refuted as plotting witnesses

are killed,

then

why are they flogged

when they transgressed the prohibition “You shall not answer against your fellow as a false witness”? Behold,

it would be

this prohibition: “

a prohibition for which the warning concerns a capital punishment of the court,”

a prohibition by which the Torah warned Israel not to do a particular thing, and if they do it, they will die—

And every

prohibition for which the warning concerns a capital punishment of the court, one is not flogged for it,

even if the transgressor does not come to be put to death, because execution by the court is the punishment for the prohibition, and not lashes as with other prohibitions.

Rather, is it not

necessarily

learned from this: It is Rabbi Elazar who said:

witnesses whose testimony was contradicted and who were ultimately refuted as plotting witnesses

are not killed;

and it follows that these witnesses will no longer come to be put to death for transgressing the prohibition, and therefore they are flogged when their testimony is contradicted.

The Gemara concludes:

It can indeed be established,

that this proves that Rabbi Elazar holds that witnesses whose testimony was contradicted and who were later shown to be conspiring witnesses are not put to death.

The Gemara concludes: The Gemara returns to explain Rabbi Elazar’s words, who said: witnesses whose testimony was contradicted concerning a person are flogged, and the Gemara had thought that the contradiction had been by two witnesses who testified: “So-and-so did not kill the person”; therefore the Gemara wondered:

But is it so that

they are flogged

when their testimony was contradicted by other witnesses? Behold,

two and two

they are [that is, there is a contradiction of two against two],

and

what have you seen that you rely on these? Rely on those [how do you know that the later witnesses speak the truth more than the earlier ones? The matter has not left the realm of doubt, so how can you flog the earlier ones!?

How do you know that the later witnesses are more truthful than the first ones? The matter remains uncertain, so how can you give the first witnesses lashes?]

He said

he answered,

Abaye:

This contradiction of which Rabbi Elazar spoke was not by witnesses; rather:

there came

before the court the

murdered man [that is, the man concerning whom the witnesses testified that he had been murdered by so-and-so]

that is, the man whom the witnesses testified had been murdered by that person]

on his own feet,

and their falsehood became clear. In such a case Rabbi Elazar said that the false witnesses who testified concerning his murder are flogged.

Mishna:

He stole on the testimony of two,

that is, two testified concerning him that he stole, and they know nothing at all about the slaughter and the sale—

and slaughtered and sold on the testimony of one witness or on his own testimony,

that is, only one witness testified concerning him about the slaughter and the sale, or no testimony came concerning this, but we know it from his own mouth:

He

pays the twofold payment

for which there is testimony of two,

but he does not pay the fourfold and fivefold payment

for which there is no testimony from two witnesses.

Although the admission of a litigant is effective in monetary matters, the fourfold and fivefold payments are a fine, and a person does not pay a fine on his own testimony.

He stole

without the prohibition of Shabbat

and slaughtered on Shabbat,

which is a prohibition involving liability for death, exempting him because of “he stands before the more severe [liability]”—

or

he stole and slaughtered for idolatry,

which is a prohibition involving liability for death, exempting him because of “he stands before the more severe [liability]”—

or

he stole from his father, his father died, and afterward he slaughtered and sold,

the animal in which he himself was a partner together with his brothers, and there is no case here of “he slaughtered all of it in a prohibited manner.”

or

he stole and consecrated,

and afterward slaughtered and sold,

when the animal had already left the domain of its owners and belonged to the consecrated property.

In all these cases:

he pays double payment, but he does not pay fourfold and fivefold payment.

Rabbi Shimon says:

If they were

sacred property for whose responsibility he was liable,

then he

pays fourfold and fivefold payment,

and in the Gemara on page 76a it is explained that Rabbi Shimon’s words were stated concerning one who steals sacred property for whose responsibility he is liable, for he pays double payment to the owners, and there it will be explained.

But sacred property

for whose responsibility he is not liable,

then he is

exempt.

Gemara:

We learned in the Mishna: If he stole on the basis of two [witnesses] and slaughtered and sold on the basis of one witness or on the basis of his own admission, he pays double payment but does not pay fourfold and fivefold payment:

And we raise a difficulty: “

on the basis of one witness,”

is it not

obvious that he is not liable? For even if this were property and not a fine, property is not taken out [of the possession of its holder] on the basis of fewer than two witnesses, as it is stated: “By the mouth of two witnesses a matter shall stand”

!?

They said

the members of the academy to explain our Mishna:

In truth, there is no novelty in the substance of the law that he does not pay fourfold and fivefold on the basis of one witness, and “on the basis of one witness” was not taught in our Mishna אלא in order to juxtapose it with “on the basis of his own [admission],” and

this teaches us

our Mishna: “

On the basis of his own [admission]”—

the law of his exemption is

analogous to “

on the basis of one witness”:

Just as on the basis of one witness

he is not exempt except so long as a second witness has not joined him, but

when another

witness

comes, and

comes and joins the first witness,

joins together with him

the first witness—then

he becomes liable

to pay.

“On the basis of his own [admission]”

on his own admission"

also, he is not exempt except so long as we know of his slaughtering only from his mouth, but

he is exempt only so long as we know of his slaughtering only from his own statement, but

when witnesses come who testify that he slaughtered it, then the slaughterer

who testify that he slaughtered it, then the slaughterer

becomes liable, even though he first admitted [to the act, which is] a fine.

even though he first admitted liability to a fine.

And in order

to exclude,

to exclude

from

his method,

from Rav Huna in the name of Rav!

For Rav Huna said in the name of Rav: One who admits to a fine, and

even

afterward witnesses came,

he is

exempt

because he admitted.

A. It follows from this discussion that our Mishna disagrees with Rav ; and see also above, on page 64b, where it is explained that the baraitot that disagree over whether the two passages concerning double payment stated in the passage concerning an unpaid bailee are both referring to one who claims that he was robbed, or “one refers to a thief and one refers to one who claims that he was robbed,” disagree over this law of Rav; see there. [And according to this, the Gemara’s argument below requires explanation, for it raises difficulties against Rav and against Shmuel, who disagrees with Rav.] B. In the Gemara below, on page 75b, Rav Ashi explains our Mishna in a manner that yields no contradiction to the fundamental basis of Rav’s position, for he distinguishes between one who obligates himself in money together with his admission [such as one who says: “I stole,” thereby obligating himself in the principal, which is money], and one who admits only to slaughtering, which does not exempt him, since he “exempts himself from nothing”; see there ; and it is explained in that discussion that Rav Hamnuna holds this even according to Rav’s view, whereas Rav Huna holds that according to Rav, even with an admission that “exempts him from nothing,” he is exempt. C. Later authorities explained the language of the Gemara: “to exclude from Rav Huna in the name of Rav,” which apparently requires explanation: for below, on page 75a, it was stated in the name of Rav himself! ? [See Sefer HaMafteach concerning this.] And they explained that there is no contradiction to Rav himself from the Mishna, for his words can be explained in accordance with Rav Hamnuna’s understanding of his words, and it follows that there is no contradiction from our Mishna, as Rav Ashi explained it; but according to Rav Huna in the name of Rav, there is indeed a contradiction here, for he does not explain it this way according to Rav’s view. The matter itself!

Rav Huna said in the name of Rav: One who admits to a fine, and afterward witnesses came, is exempt:

Rav Hisda raised an objection to Rav Huna

from that which was taught:

There was an incident involving Rabban Gamliel, who blinded the eye of his slave Tavi, and

Rabban Gamliel was

very greatly rejoicing

that Tavi—who was a fit slave—had gone out to freedom, for anyone who blinds the eye of his slave or knocks out his tooth, the slave goes out to freedom.

And the reason that he did not emancipate him was that one who emancipates his slave transgresses the positive commandment, “You shall work them forever,” Rashi. He found

Rabban Gamliel

Rabbi Yehoshua,

and

and said to him: “

Do you not know that Tavi my slave has gone out to freedom”?!

He said to him,

Rabbi Yehoshua:

Why

did Tavi go out to freedom?

He said to him,

Rabban Gamliel to Rabbi Yehoshua: Because

I blinded his eye

of Tavi, and one who blinds the eye of his slave—the slave goes out to freedom.

He said to him,

Rabbi Yehoshua to Rabban Gamliel:

Your words contain nothing!

Since

he no longer has [Tavi your slave]

your slave Tavi]

witnesses,

and without witnesses we will not take him out from your possession.

And Rav Hisda said to Rav Huna: It is implied from the fact that Rabbi Yehoshua said, “

since

if

he has

Tavi

witnesses

who testify that he blinded his eye, then Rabban Gamliel would have been

liable

to take him out, even if he brought them after Rabban Gamliel’s admission.

It was explained according to the Raavad. And we learn from it: One who admits to a fine and afterward witnesses came,

then he is

liable, and this is difficult according to your words in the name of Rav!?

which contradicts your statement in the name of Rav!?

He said to him,

Rav Huna to Rav Hisda:

Rabban Gamliel is different, for he did not admit before a court,

and anyone who admits to a fine outside a court does not become exempt if witnesses came afterward. And we raise a difficulty against this:

But Rabbi Yehoshua was the head of the court!?