Bava Kamma 75b (עה:) — the Talmud in English

Rather, is it not necessarily so—

that this is why our Mishna stated the matter in this manner, because it appears from the wording of the Mishna that if witnesses subsequently came and rendered him liable, he is liable, as the Gemara proceeds to explain; and

this teaches us

the tanna, by his wording:

it is with regard to one who stole on the basis of the testimony of two witnesses and slaughtered or sold on the basis of the testimony of one witness or on the basis of his own admission, whereby he did not render himself liable for the principal, that we say—

that if witnesses subsequently came, he is liable, as is implied by the wording of our Mishna: “

on the basis of his own admission” is

analogous to “

on the basis of the testimony of one witness”:

Just as, in the case of testimony of one witness, when one additional witness comes, he joins him and renders the defendant liable, so too, in the case of his own admission, when witnesses come

subsequently, he is

liable,

and he is not exempted by his admission.

But

if

he stole, slaughtered, or sold on the basis of the testimony of one witness or on the basis of his own admission, whereby he rendered himself liable for the principal

of the theft, in such a case

we do not say: “his own admission is analogous to the testimony of one witness”—

Rather, even if witnesses come and testify against him, he is exempt with regard to both the theft and the slaughter.

And the

beraita

that Rav Ashi cited in order to infer from it that one who “exempts himself from everything” is not exempt is this one:

as it was taught

in the beraita brought on the first side:

He saw witnesses making their way toward him

to the court to testify against him that he had stolen, slaughtered, and sold,

and he said: “I stole, but I did not slaughter or sell”; he pays only the principal

even if the witnesses subsequently testified against him—

And this is because one who admits to a fine and witnesses subsequently come is exempt, and this tanna maintains that he is exempt even though he admitted because he was intimidated by the witnesses.

But apparently it is difficult:

why does

the tanna need

to state: “

And he said: ‘I stole, but I did not slaughter or sell’”?

Let him teach

it as follows: and he said, “

I stole,”

or he said: “

I slaughtered and sold”;

in either case, he is exempt from the fourfold and fivefold payments! For with this wording the tanna includes two novel teachings:

First: an admission to the theft is considered an admission, even though it can be said that he admitted because he was intimidated.

Second: when he admitted to the slaughter, he became exempt from the fourfold and fivefold payments through his admission, even though he “exempts himself from everything.”

Rather,

certainly

this is what the beraita teaches us

the beraita:

The reason he said: “

I stole,”

whereby he rendered himself liable for the principal, is that he is exempt

from the double payment and the fourfold and fivefold payments, even when the witnesses testify;

but

if he

said: “

I did not steal,”

and witnesses came and testified that he stole, and he then said: “I slaughtered and sold,”

and witnesses came and testified that he slaughtered and sold, whereby he did not render himself liable for the principal—

he is

liable

when the witnesses testify.

That is: Indeed, through an admission concerning the slaughter alone, he would not be exempt from the fourfold and fivefold payments; he is exempt only through an admission concerning the theft alone.

It follows

that it is proven that

an admission concerning the slaughter is not an admission

that exempts him, since he exempted himself from everything.

They said

the members of the academy, rejecting the proof:

No,

not as you interpreted it—that the tanna did not state the additional novel teaching, that even an admission concerning the slaughter exempts him from the fourfold and fivefold payments, because such an admission indeed does not exempt him.

Rather, the reason the tanna did not mention this novel teaching is that

that itself is what it teaches us: since he said: “

I stole,”

even though he said: “

I did not slaughter or sell,”

and witnesses came and testified that he slaughtered and sold,

he is

exempt

with regard to the slaughter!

And

for what reason

is he in fact exempt even with regard to the slaughter when he admitted only to the theft? Because

the Torah stated “fourfold and fivefold payments”

the Merciful One said,

meaning the double payment for the theft and the twofold and threefold payments for the slaughter,

but not fourfold payments,

meaning the principal plus three payments for slaughtering an ox,

and not threefold payments

when he slaughtered a sheep.

Shall we say

that the law concerning an admission by which one exempts himself from everything—whether it is considered an admission that exempts him—

is subject to a dispute between tanna’im?

As it was taught:

There were two

witnesses

testifying

against him

that he stole, and there were two

other witnesses

testifying against him that he slaughtered and sold—

this is the law concerning their being found conspiring:

If

the witnesses to the theft were found conspiring

alone, he does not pay the double payment to the owners, nor does he pay them for the slaughter, even though other witnesses who were not found conspiring testified concerning it, because

testimony part of which is invalidated is entirely invalidated;

that is, since the testimony concerning the theft was invalidated, the testimony concerning the slaughter is likewise invalidated, for “if there is no theft, there is no slaughter or sale.”

And if

the witnesses to the slaughter were found conspiring

alone,

he,

the thief,

pays the double payment

to the owners on the basis of the witnesses to the theft who were not found conspiring,

and they—

the witnesses to the slaughter who were found conspiring—

pay

the thief

a threefold payment

that they sought to cause him to lose.

The Sages said in the name of Sumakhos

and the Gemara proceeds to explain in what manner Sumakhos disagreed with them:

They—

the witnesses to the theft—

pay a double payment, and he

the one who slaughtered

pays a threefold payment for an ox [

as is the law concerning an ox, for which one pays fivefold],

and a twofold payment for a ram [

as is the law concerning a sheep, for which one pays fourfold].

The Gemara explains Sumakhos’s statement, and from the explanation it emerges that they disagree concerning the law of one who “exempts himself from everything.”

With regard to which case—

over which clause, the first clause, where the witnesses to the theft alone were found conspiring, or the final clause, where the witnesses to the slaughter alone were found conspiring—

did Sumakhos take his position

and disagree with the Sages?

If you say

that Sumakhos disagreed

with regard to the first clause, where the witnesses to the theft were found conspiring, and Sumakhos holds that they, the witnesses who were found conspiring, pay a double payment, whereas he pays a twofold and threefold payment, since the witnesses to the slaughter were not found conspiring—

This cannot be said, because:

Indeed,

could it be that

Sumakhos does not accept the principle: “Testimony part of which is invalidated is entirely invalidated”—

that is, if the testimony concerning the theft is invalidated, the testimony concerning the slaughter is automatically invalidated, for if there is no theft, there is no slaughter or sale!?

Rather,

perhaps you will say that it is

with regard to the final clause, where the witnesses to the slaughter alone were found conspiring, that Sumakhos disagreed with the Sages?

This too cannot be said, for

the Sages have stated their position well: he pays a double payment

because the witnesses to the theft were not found conspiring,

and they—

the witnesses to the slaughter who were found conspiring—

pay a threefold payment!?

How could Sumakhos disagree and say: They—the witnesses to the theft who were not found conspiring—pay a double payment, whereas he—whose witnesses to the slaughter were found conspiring—pays a twofold and threefold payment!?

Rather,

necessarily, Sumakhos did not disagree with regard to either the first clause or the final clause; rather,

there is another matter between them, [

the first tanna and Sumakhos disagreed concerning another law], that is, the first tanna added another law that was not stated explicitly in the beraita, and Sumakhos disagreed concerning it. What is that law?

For example, two witnesses came [

two witnesses came] and

said to him

the thief: “

You stole!”

He said to them

the thief said to the witnesses: “

Yes,”

indeed, “

I stole, and

not only that, I also

slaughtered and sold, but I did not steal in your presence,”

and you are merely false witnesses.

And he brought

the thief

witnesses and had them declared conspiring, that he did not steal in their presence [

and the thief also brought witnesses who would invalidate the testimony of the witnesses who said that he had stolen in their presence].

And the owner of the house brought other witnesses

[and the owner of the animal brought other witnesses on his side],

and they testified against him that he had stolen,

and also

slaughtered and sold [

and they testified both concerning the theft and concerning the slaughter].

According to everyone, the thief’s admission to the theft is not an admission that exempts him, because he admitted only because witnesses had come and said to him, “You stole,”

and it follows that, according to everyone, he is liable for the double payment on account of the latter witnesses.

And

however,

with regard to the admission

concerning the

slaughter—

that the thief made not because of the first witnesses, since they had not come to testify against him concerning the slaughter—it is in this matter that

the first tanna and Sumakhos disagree,

whether the admission exempts him from paying the additional twofold and threefold payments:

For the Rabbis hold:

Even though it is because of the witnesses that he admits to the theft,

and this is not considered that he “renders himself liable for the principal,” nevertheless

the admission concerning the slaughter—

through which he exempts himself from everything—

is an admission, and he is exempt,

because the Rabbis hold that even when one exempts himself from everything, his admission is effective to exempt him.

And Sumakhos holds:

Since it is because of the witnesses that he admits to the theft,

it is as though he had not admitted in order to render himself liable for the principal. Consequently, his admission concerning the slaughter is as though he had not admitted together with it to the theft and thereby exempted himself from everything. Therefore,

the admission concerning the slaughter is not an admission

that exempts him. Therefore, the payment that the thief is liable to pay the owners—namely, the principal, the double payment, and the twofold and threefold payments—is divided between the witnesses who conspired against him and the thief himself— He pays the principal from his own funds to the owners, since the latter witnesses testified that he had stolen and since it was true that he had stolen, the conspiring witnesses are consequently also exempt from paying him, even though they testified falsely, as they were found conspiring; nevertheless, they rendered liable one who was already liable, and are exempt.

And as for the first witnesses whom he had summoned

the initial witnesses concerning the theft, who were discredited as conspiring witnesses,

they pay

the owners

the payment of

double—

that is, the second part of the double payment—in place of the thief. And this is as Sumakhos said: “They pay the payment of double.” The reason is that the thief is not exempt from the double payment to the owners, since his admission was made because of the witnesses; and, on the other hand, the witnesses are obligated to pay him these payments, since they falsely plotted to make him liable for them at a time when he was not yet liable, as they had not yet brought him to court. Therefore, they pay the owners in his place.

And he

the thief

pays

the owners the balance, namely:

three for an ox and two for a sheep,

since the witnesses obligate him to pay the owners, and his admission did not exempt him, since he “exempted himself from everything.” This is what Sumakhos said: “And he pays three for an ox and two for a sheep.”

The Sages, however, maintain: He pays the owners the principal, which he admitted, while the witnesses are exempt from paying him, and they pay the owners the double payment in his place, since his admission did not exempt him, because he admitted it on account of the witnesses. But he does not pay the additional twofold or threefold payment for the slaughter, since he was already exempted from it by his admission, even though he “exempted himself from everything.”

Rav Aḥa, son of Rav Ika, said

refuting this:

No—

not as you explained the reason for their dispute. Rather,

everyone—

including the Sages—maintains:

an admission concerning the slaughter,

which is not accompanied by an admission concerning the theft,

is not an admission

that exempts him.

Rather, with regard to

the law of

“testimony that cannot be refuted by הזמה”

if it is valid testimony, this is where they

disagree.

The explanation of the dispute between Sumakhos and the Sages differs in three respects from the way the Gemara initially explained it: a. According to the Sages: The thief is not liable to the owners for the second half of the double payment. Although his admission, having been made because of intimidation, does not exempt him, he is nevertheless exempt because the testimony is not testimony, as will be explained. Consequently, according to them, the witnesses pay the double payment to the thief and not to the owners.

b. For that same reason—that the testimony is not testimony—the Sages maintain that the thief does not pay the owners the twofold or threefold payment, and not because he was exempted by his admission, as we initially thought.

c. When the thief denied the initial witnesses, he did not make the vague statement: “I stole, but not in your presence.” Nor had the witnesses who came to testify against the thief a second time been unmentioned until then; the thief had already identified them initially. The situation was as follows:

For example, witnesses came and said to him: “You stole!”

And he said to them: “

Indeed,

I stole, and

not only that, but I also

slaughtered and sold the animal; however, I did not steal it in your presence,”

and he added: “

Rather, in the presence of so-and-so and so-and-so.”

And he brought

the thief

witnesses and discredited them as conspiring witnesses, testifying that he had not stolen in their presence,

as we initially explained.

And

those

so-and-so and so-and-so—

whom the thief had identified in advance and had acknowledged to be truthful witnesses—

came

and testified against him that he had stolen,

and

also

slaughtered and sold.

The Sages and Sumakhos disputed the validity of this latter testimony:

For the Sages maintain:

Since, according to the admission of the person who would be held liable, they are truthful witnesses,

it is

testimony that cannot be refuted by הזמה.

Even if they were discredited as conspiring witnesses, they would not be liable to pay, since they could say to the thief: “You admitted that what we said was true.”

And any testimony that cannot be refuted by הזמה is not testimony.

And Sumakhos maintains: Even

“

testimony that cannot be refuted by הזמה”

is testimony.

Therefore, according to the Sages, he is liable for nothing—apart from the principal—

to the owners, since there is no valid testimony here, and he cannot be obligated to pay a fine on the basis of his admission, because an admission by a litigant is ineffective to impose liability for a fine, even when it does not completely exempt him. On the other hand, the conspiring witnesses pay the thief the double payment that they sought to impose upon him.

The Gemara is puzzled by the explanation of Sumakhos’s reasoning:

But we have established: “

Testimony that you cannot refute by הזמה”—

for example, when the witnesses say: “I do not know” the place or time that would enable them to be refuted by the claim, “You were with us elsewhere at that time concerning which you are testifying”—

is not testimony,

and Sumakhos never disputed this. How, then, can we say that here he validates “testimony that you cannot refute by הזמה”?

The Gemara explains that Sumakhos does not dispute this fundamental law; he disputes only the status of this particular testimony. Although it cannot be refuted by הזמה, it is nevertheless testimony, because:

That statement applies—

that “testimony that cannot be refuted by הזמה” is not testimony—

where they do not know

the witnesses

on which day and at what hour,

that is, they were questioned about the day and hour and said, “I do not know,” and this is because

there is no testimony at all.

But here,

the fact that they cannot be refuted by הזמה is because

it is assistance that is being provided to them [

as the person obligated on the basis of their testimony confirms that they are not false witnesses]. When the reason that the testimony cannot be refuted by הזמה is that it is true testimony, the testimony is valid.

The Master said: They said in the name of Sumakhos: They pay

the owners

the payment of double

in place of the thief:

The plain meaning of the wording indicates that they are liable to him for the entire double payment, and they pay all of it to the owners. The Gemara raises a difficulty against this:

Since he admits

that he stole,

“

since he admits”

that he stole,

why,

does the principal require payment

[must they also pay him the principal]!? He has admitted that he is liable for the principal, and the witnesses came only to obligate someone who is not liable; whereas he is indeed liable.

He said

in answer,

Rabbi Elazar said in the name of Rav:

Teach

in the beraita, in place of “and they pay the payment of double,” which implies: his principal and double payment: