Bava Kamma 74b (עד:) — the Talmud in English

He blinded his eye

alone

release through his eye

the slave goes free through his eye; and if

he knocked out his tooth

alone, then

release through his tooth—

And if

he blinded his eye and

also

knocked out his tooth, release through his eye and tooth

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

He said:

Abaye answered:

to you [that is, in response to your question]

in response to your question]

the verse says: “

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

for his eye”;

and the verse need not have repeated the phrase “for his eye.” Rather, it teaches us: He shall send him free for his eye,

but not for his eye and tooth;

rather, he shall pay for it.

And for this reason the verse states: “If he knocks out the tooth of his slave or the tooth of his maidservant, he shall send him free

for his tooth,”

to teach us: He shall send him free for his tooth,

but not for his tooth and eye;

rather, he shall pay for it.

Rav Idi bar Avin said: We too

in our Mishna

have learned

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

If he stole on the basis of the testimony of two witnesses, and slaughtered and sold on the basis of their testimony, and they were found to be zomemim, they pay him the entire amount.

And

is it not

that our Mishna is dealing with a case in which

they testified

on some day

about the theft

which took place on Sunday,

and they then testified about the slaughter

which took place on Monday—

and they were found to be zomemim

on Tuesday

concerning the theft

because on Sunday they had been with the witnesses who rendered them zomemim,

and they were again found to be zomemim

on Wednesday

concerning the slaughter

because on Monday as well they had been with those who rendered them zomemim.

But once they were found to be zomemim concerning the theft

before they were found to be zomemim concerning the slaughter, then

with regard to the slaughter they should have been

like

contradicted

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

and

nevertheless

it teaches: They pay him the entire amount,

including even the double 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 that “

contradiction is not the beginning of hazama,”

why do they pay for the slaughter!?

The testimony had already been annulled before they were found to be zomemim; why should they pay on its account?

Rather, is it not apparent from here that “

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

with what are we dealing? With a case in which they were found to be zomemim concerning the slaughter first!

The Gemara further explains:

and

this question of whether “contradiction is the beginning of hazama”

is subject to a dispute

among the amoraim:

It was stated:

Witnesses

who testified that a person had killed someone,

whose testimony was contradicted

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

and who were ultimately found to be zomemim

by witnesses who said: “You were with us,” the law in this case was disputed by

Rabbi Yohanan and Rabbi Elazar:

One

of them

said: They are put to death,

even though their testimony was first contradicted and thereby annulled before they were found to be zomemim, because “contradiction is the beginning of hazama.”

And the other

of them

said: They are not put to death,

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

The Gemara explains:

It can be concluded

that one can prove

that it is Rabbi Elazar who said: They are not put to death.

For

Rabbi Elazar said:

Witnesses whose testimony concerning a person’s life was contradicted,

that is, witnesses who came to have a person put to death through their testimony, and whose falsehood was established not through hazama, these

are flogged,

because they transgressed “You shall not testify falsely against your fellow.”

From this statement it can be proven that according to Rabbi Elazar, witnesses whose testimony was contradicted and who were subsequently found to be zomemim are not put to death, for:

And if it enters your mind,

that

it is Rabbi Elazar who said that

witnesses whose testimony was contradicted and who were subsequently found to be zomemim

are put to death,

then

why are they flogged

when they transgressed the prohibition “You shall not testify falsely against your fellow”?

For this prohibition

would be

a prohibition whose warning entails a court-imposed death penalty,

that is, a prohibition by which the Torah warned Israel not to perform a particular act, and if they perform it, they are put to death—

and every

prohibition whose warning entails a court-imposed death penalty is not subject to lashes,

even if the transgressor does not come to be put to death, since the court-imposed death penalty is the punishment for that prohibition, rather than lashes as with other prohibitions.

Rather, it is necessarily so

that

it can be inferred: It is Rabbi Elazar who said that

witnesses whose testimony was contradicted and who were subsequently found to be zomemim

are not put to death;

thus 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 be concluded

that indeed it is proven that Rabbi Elazar holds that witnesses whose testimony was contradicted and who were subsequently found to be zomemim are not put to death.

The Gemara returns to explain Rabbi Elazar’s statement that witnesses whose testimony concerning a person’s life was contradicted are flogged. The Gemara had assumed that the contradiction was effected by two witnesses who testified: “So-and-so did not kill the person.” Therefore, the Gemara asks:

What, is it not the case that they

are flogged when their testimony is contradicted by other witnesses? But

they are

two against two

they are

[there is a contradiction of two witnesses by two witnesses here], and

what have you seen that you rely on these? Rely on those!

[What basis do you have for saying that the later witnesses speak the truth more than the earlier witnesses? The matter remains unresolved, so how can you flog the earlier witnesses!?

He said:

He answered:

Abaye:

This contradiction of which Rabbi Elazar spoke was not effected by witnesses. Rather,

the

victim came before the court

on his own feet

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

he himself came on his feet,

and their falsehood was thereby established. It is in such a case that Rabbi Elazar said that the false witnesses who testified to his murder are flogged.

Mishna:

If he stole on the basis of the testimony of two witnesses,

that is, two witnesses testified that he stole, but they know nothing about the slaughter and sale—

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

that is, one witness alone testified concerning the slaughter and sale, or no testimony was given concerning them, but we know of them from his own admission:

he

pays the double payment,

for that is supported by the testimony of two witnesses,

but he does not pay the fourfold or fivefold payment,

for that is not supported by testimony from two witnesses.

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

If he stole

not in violation of Shabbat

and slaughtered on Shabbat,

which is a prohibition entailing liability to death and which exempts him because of the principle that “one who is liable for the more severe punishment is exempt from the less severe one”—

or if

he stole and slaughtered for idolatry,

which is a prohibition entailing liability to death and which exempts him because of the principle that “one who is liable for the more severe punishment is exempt from the less severe one”—

or if

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

the animal in which he himself is a partner with his brothers, so that this is not a case of “he slaughtered all of it in a prohibited state”—

or if

he stole and consecrated it,

and subsequently slaughtered and sold it,

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

In all these cases:

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

Rabbi Shimon says:

If they were

sacred animals for which he was liable

then he

pays fourfold and fivefold payment,

and the Gemara on 76a explains that Rabbi Shimon's statement concerns one who steals sacred animals for which he is liable, in which case he pays double payment to the owners; this will be explained there.

But sacred animals

for which 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 or 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 ask:

“on the basis of one witness”—

is it not

obvious

that he is not liable? For even if this were a monetary obligation rather than a fine, money is not extracted on the basis of fewer than two witnesses, as it is stated: “By the mouth of two witnesses shall a matter be established”?!

They said

the scholars of the academy in explanation of our Mishna:

In fact, there is no novelty in the substance of the law that he does not pay fourfold and fivefold payment on the basis of one witness, and “on the basis of one witness” was stated in our Mishna only 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 until a second witness has not yet joined him, but

when

another

witness

comes

and joins him

with the first witness—then

he becomes liable

to pay for the slaughter.

“On the basis of his own [admission]”

“On the basis of his own admission”

as well,

he is exempt only as long as we know of his slaughter solely from his own statement. But

when witnesses come

who testify that he slaughtered it, the slaughterer

becomes liable

even though he initially admitted to the fine.

And in order

to exclude

and remove

from

the view

of Rav Huna in the name of Rav!

For Rav Huna said in the name of Rav: If one admits to a fine, and

even

afterward witnesses come,

he is

exempt

because he admitted.

The essential matter!

Rav Huna said in the name of Rav: If one admits to a fine, and afterward witnesses come, he is exempt:

Rav Ḥisda raised an objection to Rav Huna

from that which was taught in a beraita:

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

Rabban Gamliel was

exceedingly joyful

because Tavi—who was a valid slave—had thereby gone free, for anyone who blinds the eye of his slave or knocks out his tooth causes the slave to go free.

He encountered

Rabban Gamliel

Rabbi Yehoshua,

and

said to him:

“Do you not know that Tavi my slave has gone free?”

He said to him

Rabbi Yehoshua:

Why

did Tavi go free?

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 causes the slave to go free.

He said to him

Rabbi Yehoshua to Rabban Gamliel:

Your words have no substance!

Since

he no longer has

[your slave Tavi]

witnesses,

we will not take him from you without witnesses.

And Rav Ḥisda said to Rav Huna: It is implied from Rabbi Yehoshua's statement, “since he no longer has witnesses,” rather than his saying, “since witnesses did not come,” that

this

means that if

he has

Tavi

witnesses

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

obligated

to take him out of his possession, even if he brought them after Rabban Gamliel's admission.

And we learn from this: If one admits to a fine and afterward witnesses come,

then he is

liable, and this contradicts what you said in the name of Rav?!

He said to him

Rav Huna to Rav Ḥisda:

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

and anyone who admits to a fine outside a court is not exempt if witnesses come afterward. And we object to this:

But Rabbi Yehoshua was the head of the court!?