might adversely affect purchasers.1 What practical difference is there between the two versions?2 — Where two witnesses have proved one of a pair zomem, and other two witnesses have proved the other one of the pair zomem;3 or again, where the disqualification of the witnesses is based upon an accusation of larceny brought by a subsequent pair.4 According to the version which makes Raba base his view5 on the fact of the procedure being anomalous, he would not apply it here, whereas according to the version which makes his reason the fear of adversely affecting purchasers, it would hold good even here.6 R. Jeremiah of Difti said: R. Papa decided in an actual case in accordance with the view of Raba. R. Ashi, however, stated that the law agrees with Abaye. And the law agrees with Abaye [against Raba] on [the matters known as] Y'AL KGM.7 We have learnt: IF A THIEF [IS CONVICTED OF THE THEFT OF AN OX] ON THE EVIDENCE OF TWO WITNESSES, AND OF THE SLAUGHTER OR SALE OF IT ON THE EVIDENCE OF THE SAME TWO, AND THESE WITNESSES ARE SUBSEQUENTLY PROVED ZOMEMIM, THEY MUST PAY [THE ACCUSED] IN FULL. Does this not mean that they first gave evidence regarding the theft and then8 gave evidence again regarding the slaughter, and that they were proved zomemim regarding their evidence about the theft and then were proved zomemim regarding their evidence about the slaughter? Now, if you assume that a witness proved zomem becomes disqualified retrospectively, [it would surely follow that] as soon as these witnesses were declared zomemim regarding the theft, it became clear retrospectively that when they gave evidence regarding the slaughter9 they were already disqualified.10 Why then should they pay [the retaliation penalty regarding their evidence] about the slaughter?11 — It may be said that we are dealing here with a case where they were first declared zomemim regarding their evidence about the slaughter. But it may still be argued that after all since when they were subsequently declared zomemim regarding the theft, it became clear retrospectively that when they gave evidence regarding the slaughter, they had already been disqualified. Why then should they pay the retaliation penalty for the slaughter?12 — This law would apply only when they testified at one and the same time to both theft and slaughter,13 and were afterwards declared zomemim.14 May we say that this matter15 formed the point at issue between the following Tannaim: If two witnesses gave evidence against a person that he had stolen an ox and the same witnesses also testified against him that he had slaughtered it, and were declared zomemim regarding the theft, as their evidence became annulled in part16 it became annulled altogether. But if they were declared zomemim regarding the slaughter, the thief would still have to make double payment and they would have to pay [him] three-fold. R. Jose, however, said: These rulings17 apply only in the case of two testimonies,18 for in the case of one testimony the law is that a testimony becoming annulled in part becomes annulled altogether. Now, what is meant by 'two testimonies' and what is meant by 'one testimony'? Are we to say that 'two testimonies' means two absolutely independent testimonies, as in the case of two separate sets, and 'one testimony' means one set giving the two testimonies after each other, in which case R. Jose would hold that in the case of one testimony, i.e. where one set gave testimonies after each other, as, for instance where they had first given evidence about the theft and then gave evidence again about the slaughter, if they were subsequently declared zomemim with reference to their evidence about the slaughter, the law would be that a testimony becoming annulled regarding a part of it becomes annulled regarding the whole of it, and the witnesses would thus be considered zomemim also regarding the theft? On what could such a view be based? [Why indeed should the testimony given first about the theft be annulled through the annulment of a testimony given later?]19 Must we not therefore say that 'two testimonies' means one evidence resembling two testimonies, that is to say, where one set gives two testimonies one after the other20 but not where there is one testimony in which all the statements are made at the same time? Now it was assumed that there was agreement on all hands that statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement. The point at issue therefore between them21 would be as follows: The Rabbis22 would maintain that a witness proved zomem is disqualified only for the future, and since it is from that time onwards that the effect of zomem will apply it is only with reference to the slaughter regarding which they were declared zomemim that the effect of zomem will apply, whereas with reference to the theft regarding which they were not declared zomemim the effect of zomem will not apply.23 R. Jose would on the other hand maintain that a witness proved zomem would become disqualified retrospectively, so that from the very moment they had given the evidence, regarding which they were proved zomemim, they would be considered disqualified; from which it would follow that when they were declared zomemim regarding the evidence about the slaughter the effect of zomem should also be extended to the evidence regarding the theft, for statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement. [Would the view of Abaye thus be against that of the Rabbis?] — To this I might reply: Were statements following one another within the minimum of time [sufficient for the utterance of a greeting] equivalent in law to a single undivided statement, it would have been unanimously held [by these Tannaim] that the pair proved zomemim should become disqualified retrospectively. But here it is this very principle whether statements following one another within the minimum of time [sufficient for the utterance of a greeting] should or should not be equivalent in law to a single undivided statement that was the point at issue between them: The Rabbis maintained that statements following one another within the minimum of time [sufficient for the utterance of a greeting]
Baba Kamma 73bare not equivalent in law to a single undivided statement,1 whereas R. Jose maintained that statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement.2 But did R. Jose really maintain that statements following one another within the minimum of time [sufficient for the utterance of a greeting] are equivalent in law to a single undivided statement? For we have learnt: If a man declares: Let this animal be a substitute3 for a burnt-offering, a substitute for a peace-offering, it will be a substitute for the burnt-offering,4 according to the view of R. Meir, whereas R. Jose says: If from the outset he intended this,5 his words would have to be acted upon,6 as it was impossible for him to utter two terms at the same time, but if he first declared; 'Substitute for a burnt-offering', and then changed his mind and said, 'Substitute for a peace-offering', it will be a substitute for a burnt-offering only.7 Now this statement we found strange; for is not the case of a change of mind obvious?8 And R. Papa therefore said: We assume that the change of mind took place within the minimum of time [required for the utterance of a greeting]!9 [Does this not prove that R. Jose maintained that statements following one another within the minimum of time sufficient for the utterance of a greeting would not be equivalent in law to a single undivided statement?]10 — It may be said that there are two different minimums of time [within which two different kinds of greetings could be uttered], one sufficient for the greeting given by a disciple to his master, and the other sufficient for the greeting of the master to the disciple. Where11 R. Jose does not hold [the two statements to be one] is where the interval is sufficient for the greeting of a disciple to the master, viz. 'peace [upon] thee, master [and] teacher,' as this is too long,12 but where it is only sufficient for the greeting of the master to the disciple, 'peace [upon] thee,13 he holds that they do [form one]. Raba stated: Witnesses [testifying to a capital charge] who have been proved wrong14 [by a pair of other witnesses]15 and subsequently also proved zomemim, would be put to death, as the confutation was a first step in the subsequent proof of an alibi,16 though the proof of this was not yet complete at that time. Raba said: [The authority] on which I base this is that which has been taught: [If a set of witnesses declare], We testify that so-and-so has put out the eye of his slave17 and18 knocked out his tooth19 (and so indeed the master himself says), and these witnesses are [by subsequent witnesses] proved zomemim, they would have to pay20 the value of the eye to the slave.21 How are we to understand this? If we assume, according to the apparent meaning of the text, that there was here no other pair of witnesses,22 why should they pay the value of the eye to the slave? After they have done their best to get him [undeservedly] freed, are they also to pay him the value of his eye? Moreover, should they in such a case not have to pay the owner for the full value of the slave [as they falsely demanded his freedom]? Furthermore, 'and so indeed the master himself says,' — how could the master be satisfied [with such a false allegation to his detriment]? Does it therefore not mean a case, e.g., in which a pair of witnesses had already appeared [previously] and stated that the master knocked out the slave's tooth and then put out his eye so that the master would have to pay him the value of his eye,23 and a middle pair of witnesses appeared later and stated that the first put out the slave's eye and then his tooth, so that he would not have to give him anything but the value of his tooth,24 so that the first set of witnesses confuted the middle set, and it is to this that the words refer 'and so indeed the master himself says', for he was well satisfied with the statement alleged by the middle set? The text then goes on: 'And these are [by subsequent witnesses] proved zomemim' — that is, the middle set — 'they would have to pay the value of the eye to the slave'.25 Does not this show that the confutation is the first step in a subsequent proof of an alibi?26 — Abaye said: No; [what we can assume is] that the statement of these witnesses was transposed by a [second] set of witnesses, who also proved them zomemim.27 That this was so is evident, - To Next Folio -
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