Bava Kamma 75b — the Talmud in English

Rather, is it not necessarily so, that this is why our Mishna stated the matter in this manner, because from the words of the Mishna it appears that if witnesses subsequently came and made him liable, he is liable, as it explains and proceeds; and

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:

“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, where he does not make himself liable for the principal—that is what 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 one witness”:

just as, in the case of one witness, when one witness comes, he joins with him and makes him 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, and sold on the basis of one witness or on the basis of his own admission, where he made 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 for the theft and for the slaughtering.

And the

beraita

that Rav Ashi stated in order to infer from it that one who “exempts himself from everything” is not exempt is the following

beraita

in the beraita brought on the previous side:

He saw witnesses approaching

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

and he said: “I stole, but I did not slaughter and I did not 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 afterward witnesses come is exempt,” and this tanna holds that he is exempt even though he admitted because of the fear of the witnesses.

And seemingly one may object:

why does the

tanna

need to teach: “

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

Let him teach

this instead: 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:

The first: that the admission of the theft is an admission, even though one might say that he admitted because of fear.

The second: that when he admitted to the slaughtering, he became exempt from the fourfold and fivefold payments through his admission, even though he “exempts himself from everything

”. Rather,

certainly

the beraita teaches us

the following:

The reason is that he said: “

I stole,”

for where he made himself liable for the principal, 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 that he stole, and he then returned and said: ‘I slaughtered and sold,’

and witnesses came that he slaughtered and sold, where he did not make himself liable for the principal,

he is

liable

when the witnesses testify.

That is to say: Indeed, through an admission concerning slaughtering alone, this person will not be exempt from the fourfold and fivefold payments, but only through an admission concerning theft alone.

It follows

that it is demonstrated that

an admission concerning slaughtering is not an admission

to exempt him, since he exempted himself from everything.

The scholars said

in order to reject the proof:

No,

it is not as you explained, that the tanna did not state an additional novel teaching—that even an admission concerning slaughtering exempts him from the fourfold and fivefold payments—because indeed this is not an admission that exempts.

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

this itself it teaches us: since he said: “

I stole,”

even though he said: “

I did not slaughter and I did not sell,”

and witnesses came that he slaughtered and sold,

he is

exempt

for the slaughtering!

And

what is the reason

that he is in fact exempt even for the slaughtering when he admitted only to the theft? It is because:

“Fourfold and fivefold payments”

the Merciful One said,

namely, double payment because of the theft, and twofold and threefold payments because of the slaughtering,

and not fourfold payments,

namely, the principal and three [additional units] for the slaughtering when he slaughtered an ox,

and not threefold payments

when he slaughtered a sheep.

Shall we say

that the law concerning an admission when he exempts himself from everything—whether it is an admission that exempts him—is

subject to a dispute between tannaim?

For it was taught:

there were two

witnesses

testifying

against him

that he stole, and there were two

others

testifying against him that he slaughtered and sold—

this is the law concerning their being refuted:

If

the witnesses of the theft were refuted

alone, he does not pay double payment to the owners, and he also does not pay them for the slaughtering, even though other witnesses who were not refuted came concerning it, because

testimony, part of which was invalidated, is entirely invalidated,

that is to say: since the testimony concerning the theft was invalidated, the testimony concerning the slaughtering is automatically invalidated, for “if there is no theft, there is no slaughtering and sale.”

And if

the witnesses of the slaughtering were refuted

alone,

he

the thief

pays double payment

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

and they—

the witnesses of the slaughtering who were refuted—

pay

the thief

threefold payment

which they sought to cause him to lose.

They said in the name of Sumchos

the Sages; and the Gemara explains and proceeds to clarify in what case Sumchos disagreed:

They—

the witnesses of the theft—

pay double payment, and he

the one who slaughtered

pays threefold payment for an ox [

as the law of an ox that pays fivefold payment],

and twofold payment for a ram [

as the law of a sheep that pays fourfold payment].

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

Concerning which [case]—

concerning which clause? Concerning the first clause, in which only the witnesses of the theft were refuted, or concerning the final clause, in which only the witnesses of the slaughtering were refuted—

does Sumchos stand

and disagree with the Sages?

If you say

that Sumchos disagreed

with the first clause,

in which the witnesses of the theft were refuted, and Sumchos holds: they, the refuted witnesses, pay double payment, whereas he pays twofold and threefold payment, since the witnesses of the slaughtering were not refuted—

This cannot be said, because:

Is it really the case that

Sumchos does not accept [the principle]: “Testimony, part of which was invalidated, is entirely invalidated,”

that is to say: if there is no testimony concerning the theft, the testimony concerning the slaughtering is automatically invalidated, for if there is no theft, there is no slaughtering and sale?

Rather,

perhaps you will say

[it is concerning] the final clause,

in which only the witnesses of the slaughtering were refuted, that is where Sumchos disagreed with the Sages?

This too cannot be said, for

the Rabbis stated well: “He pays double payment,”

because the witnesses of the theft were not refuted,

and they—

the witnesses of the slaughtering who were refuted—

“pay threefold payment!”

And how could Sumchos disagree and say: they—the witnesses of the theft who were not refuted—pay double payment, while he—whose witnesses concerning the slaughtering were refuted—pays twofold and threefold payment?

Rather,

necessarily, Sumchos did not disagree concerning either the first clause or the final clause, but

there is another matter between them, [

in another law the first tanna and Sumchos disagreed], that is to say: the first tanna added another law that was not explicitly mentioned in the beraita, and it is concerning that law that Sumchos disagreed. And what is that law?

For example, two witnesses came [

two witnesses came] and

said to him

to the thief: “

You stole!”

The thief said to them

to the witnesses: “

Yes,”

indeed, “

I stole, and”

not only that, but also

I slaughtered and sold; however, I did not steal in your presence,

and you are merely false witnesses.

And he brought

the thief

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

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

And the owner of the animal brought other witnesses

from his side],

and they testified against him that he stole,

and also

slaughtered and sold [

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

And according to everyone, the thief’s admission concerning the theft is not an admission that exempts him, because he admitted only because witnesses came and said to him, “You stole,” and it follows that according to everyone he is liable for double payment because of the latter witnesses.

But

however,

concerning the admission of

the

slaughtering—

that the thief admitted not because of the first witnesses, for they had not come to testify against him concerning the slaughtering—in this matter

the first tanna and Sumchos disagree,

whether it is an admission that exempts him from paying further twofold and threefold payments:

For the Rabbis hold:

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

and this is not called “making himself liable for the principal,” nevertheless

the admission concerning the slaughtering—

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 Sumchos holds:

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

it is as though he did not admit in order to make himself liable for the principal, and the admission concerning the slaughtering is found to be as though he had not admitted together with it concerning the theft and exempted himself through it from everything; therefore,

an admission concerning slaughtering is not an admission

itself. Therefore the payment that the thief is liable to pay the owners—namely, the principal, double payment, and twofold and threefold payments—is divided between the witnesses who plotted against him and him: He pays the principal from his own money to the owners, for the latter witnesses testified against him that he stole, and since it was true that he stole, the plotting witnesses are likewise automatically exempt from paying him, even though they testified falsely, since they were refuted; nevertheless, they made one who was already liable liable, and they are exempt.

And the first witnesses, who had summoned them [

the first witnesses concerning the theft, who were proven to be conspiring witnesses]

pay

to the owners

double

payment —

that is: the second portion of the double payment—in place of the thief, as Sumakhos said: “They pay double payment.” And because the thief was not exempt from the double payment to the owners, since his admission was on account of the witnesses, while, on the other hand, the witnesses are obligated to pay him these payments, since they falsely plotted to obligate him in them at a time when he had not yet become obligated, for they had not yet brought him to judgment, they pay the owners in his place.

And he,

the thief,

pays

the remainder to the owners, namely:

three for an ox and two for a sheep,

and because the witnesses obligate him to pay the owners, and his admission did not exempt him, since he “exempted himself from nothing”; and this is what Sumakhos said: “And he pays three for an ox and two for a sheep.”

Whereas the Sages hold: He pays the owners the principal that he admitted, and the witnesses are exempt from paying him, and they pay in his place double payment to the owners, since his admission did not exempt him because he admitted on account of the witnesses; whereas he does not pay the additional two and three for the slaughter, since he was already exempted by his admission, even though he “exempted himself from nothing.”

Said

rejected

Rav Aḥa, son of Rav Ika: No,

not as you explained the reason for their dispute; rather,

everyone —

including the Rabbis—holds:

an admission concerning the slaughter

that is unaccompanied by an admission concerning the theft

is not an admission

to exempt him.

Rather, concerning the

law of “

testimony that you cannot make subject to hazama”

if it is valid testimony, this is what they

dispute.

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.

And the explanation of the dispute between Sumakhos and the Sages differs in three particulars from the way the Gemara initially explained it:

a. According to the Sages: The thief is not liable for the second half of the double payment to the owners; and although he cannot be exempted on account of the admission that was made because of intimidation, nevertheless he is 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—the testimony is not testimony—the Sages hold that the thief does not pay the two and three to the owners, and not because he was exempted by his admission, as we initially thought.

c. When the thief denied the first witnesses, he did not make an unqualified statement to them: “I stole, but not in your presence.” And the witnesses who came to testify against the thief a second time had already been identified by the thief initially. And this is what happened:

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; however, I did not steal in your presence,”

and he added further, saying: “

But in the presence of so-and-so and so-and-so.”

And he brought

the thief

witnesses and proved them to be conspiring witnesses, that he had not stolen in their presence,

as we initially explained.

And there came

those

so-and-so and so-and-so—

whom the thief had identified beforehand, and he admitted that they were truthful witnesses—

and they testified against him that he had stolen, and

also

slaughtered and sold.

And the Rabbis and Sumakhos disputed the validity of this latter testimony:

For the Rabbis hold:

Since, according to the admission of the one who became liable himself, they are truthful witnesses, then

it becomes “

testimony that you cannot make subject to hazama,”

for even if they prove them to be conspiring witnesses, they will not become liable to pay, since they will say to the thief: “But you admitted that what we said was true,”

and any testimony that you cannot make subject to hazama is not testimony.

And Sumakhos holds: Even “

Even

testimony that you cannot make subject to hazama”

is testimony.

And therefore, according to the opinion of the Sages, he is liable for nothing—apart from the principal—

to the owners, for there is no testimony here, and he cannot be obligated in a fine on the basis of his admission, since the admission of a litigant is not effective to impose liability for a fine, even when it does not exempt him completely; while, on the other hand, the conspiring witnesses pay the thief the double payment that they sought to obligate him in.

The Gemara is astonished at the explanation of Sumakhos’s reasoning:

But we hold: “

Testimony that you cannot make subject to hazama”—

such as when the witnesses said: “I do not know” the place or the time that would enable them to be proven conspiring witnesses by means of “You were with us in another place at that time concerning which you are testifying”—

is not testimony,

and Sumakhos never disputed this; how, then, can we say that he validates here “testimony that you cannot make subject to hazama”?

And the Gemara explains that Sumakhos does not dispute this fundamental law, and disputes only this particular testimony: Although it is impossible to make it subject to hazama, it is testimony, because:

This applies—

that “testimony that you cannot make subject to hazama” is not testimony—

where they do not know

the witnesses

on which day and at which hour,

that is, they investigated them concerning the day and the hour and they said, “I do not know,” and because

there is no testimony at all.

But here,

the fact that it is impossible to make them subject to hazama is because

it is assistance that assists them [

for the one who becomes liable on the basis of their testimony confirms that they are not false witnesses], and when, because of the truth, the testimony cannot be made subject to hazama, the testimony is valid.

Said the Master:

They said in the name of Sumakhos:

They pay

to the owners

double payment

in the thief’s place.

And the plain meaning of the language indicates that they are liable to him for the entire double payment, and they pay all of it to the owners. And we raise an objection to this:

Since he admits [

since he admits]

that he stole,

and is it so that

they must pay the principal [

must they also pay him the principal]!? For he admitted that he is liable for the principal, and the witnesses came only to obligate one who is not subject to liability, whereas this one is subject to liability.

Said

he answered

Rabbi Elazar in the name of Rav:

Teach

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