Babylonian Talmud: Tractate Baba Kamma

Folio 75a

— He was, however, at that time not sitting in the court of law. But has it not been taught that he said to him: 'Your words have no force in law, as you have already confessed'?¹  Must we not then say that Tannaim were divided on this matter, so that the Tanna who reported 'as there are no witnesses for the slave',²  would maintain that if one confessed to liability for a fine and subsequently witnesses appeared and testified [to the same effect], he should be liable, whereas the Tanna who reported 'as you have already confessed', would maintain that if one confessed to liability for a fine, though witnesses subsequently appeared [and corroborated the confession], he would be exempt? — No, they might both have agreed that if one confessed to the liability of a fine, though witnesses subsequently appeared [and testified to the same effect], he would be exempt, and the point on which they differed might have been this: the Tanna, who reported 'as there are no witnesses for the slave', was of opinion that the confession took place outside the court of law,³  whereas the Tanna, who reported 'as you already confessed', was of opinion that the confession was made at the court of law.

It was stated: If a man confesses to liability for a fine, and subsequently witnesses appear [and corroborate the confession], Rab held that he would be quit, whereas Samuel held that he would be liable. Raba b. Ahilai said: The reason of Rab was this. [We expound]: If it [was to] be found⁴  by witnesses, it be [considered] found⁴  in the consideration of the judges, excepting thus a case where a defendant incriminates himself.⁵  Now why do I require this reasoning, seeing that this ruling can be derived from the text 'whom the judges shall condemn',⁶  which implies 'not him who condemns himself'? It must be to show that if a man confesses to liability for a fine, even though witnesses subsequently appear [and testify to the same effect], there would be exemption. Samuel, however, might say to you that the doubling of the verb in the verse 'If to be found it be found' was required to make the thief himself subject to double payment, as taught at the School of Hezekiah.⁷

Rab objected to [this view of] Samuel [from the following Baraitha:]⁸  If a thief notices that witnesses are preparing themselves to appear⁹  and he confesses 'I have committed the theft [of an ox] but I neither slaughtered it nor sold it', he would not have to pay anything but the principal?¹⁰  — He [Samuel] replied: We are dealing here with a case where, for instance, the witnesses drew back from giving any evidence in the matter. But since it is stated In the concluding clause: 'R. Eleazar son of R. Simeon says that the witnesses should still come forward and testify,' must we not conclude that the first Tanna maintained otherwise?¹¹  — Samuel thereupon said to him: Is there at least not R. Eleazar son of R. Simeon who concurs with me? I follow R. Eleazar son of R. Simeon.

Now according to Samuel, Tannaim certainly differed in this matter. Are we to say that also according to Rab Tannaim differed in this?¹²  — Rab might rejoin: My statement can hold good even according to R. Eleazar son of R. Simeon. For R. Eleazar son of R. Simeon would not have expressed the view he did there save for the fact that the thief made his confession because of his fear of the witnesses, whereas here he confessed out of his own free will, even R. Eleazar son of R. Simeon might have agreed [that the confession would bar any pending liability].¹³

R. Hamnuna stated: It stands to reason that the ruling of Rab was confined to the case of a thief saying, 'I have committed a theft' and witnesses then coming [and testifying] that he had indeed committed the theft, in which case he is quit, as he had [by the confession] made himself liable at least for the principal.¹⁴  But if he first said, 'I did not commit the theft,' but when witnesses appeared and declared that he did commit the theft, he turned round and said, 'I even slaughtered [the stolen sheep or ox] or sold it,' and witnesses subsequently came [and testified] that he had indeed slaughtered it or sold it, he would be liable to pay [four-fold or five-fold payment], as [by this confession]¹⁵  he was trying to exempt himself from any liability whatever. [But] Raba said: I got the better¹⁶  of the elders of the School of Rab,¹⁷  for R. Gamaliel [by confessing the putting out of his slave's eye] was but exempting himself from any liability, and yet when R. Hisda stated this case [as a proof] against R. Huna¹⁸  he was not answered thus.

It was similarly stated:¹⁹  R. Hiyya b. Abba said in the name of R. Johanan, [that if a thief confessed] 'I have committed a theft', and witnesses then came along [and testified] that he had indeed committed the theft, he would be exempt, as in this case he had [by the confession] made himself liable at least for the principal; for where he had first said 'I did not commit the theft', but when witnesses appeared and declared that he did commit the theft he again came and said, 'I even slaughtered [the stolen sheep or ox] or sold it, and witnesses again came and testified that he had indeed slaughtered it or sold it, he would be liable to pay [four-fold or five-fold payment], as by his confession he was but exempting himself from any liability whatever. R. Ashi said: [Texts from] our Mishnah and the [above] Baraitha tend likewise to prove this distinction. From our Mishnah [the proof is] as we have learnt: IF THE THEFT [OF AN OX OR SHEEP] WAS TESTIFIED TO BY TWO WITNESSES, WHEREAS THE SLAUGHTER OR SALE OF IT WAS TESTIFIED TO BY ONLY ONE WITNESS OR BY THE THIEF HIMSELF, HE WOULD HAVE TO MAKE DOUBLE PAYMENT BUT WOULD NOT HAVE TO MAKE FOUR-FOLD AND FIVE-FOLD PAYMENTS. Now, what is the need for the words. IF THE THEFT WAS TESTIFIED TO BY TWO WITNESSES? Why not simply state: 'If the theft and slaughter or [theft and] sale were testified to by one witness or by the thief himself, he would not have to pay anything but the principal alone'?

1. Which implies that even if witnesses would subsequently appear and testify to the same effect, it would still be of no avail, thus agreeing with the view of Rab.
2. As the text runs in the former teaching and which implies that if witnesses should come and testify for the slave he would obtain his freedom, in apparent contradiction to the view of Rab.
3. [Where a confession is not regarded in the eye of the law as legal so as to bar subsequent evidence.]
4. Ex. XXII. 3.
5. V. supra 64b.
6. Ex. XXII, 8.
7. Supra p. 370.
8. Cf. Shebu. VIII, 4, and Tosaf. infra 75b, s.v. [H].
9. Before the court to give evidence against him.
10. As confession to the liability for a fine carries exemption from the fine.
11. I.e., that the evidence of the witnesses would be of no avail.
12. And that R. Eleazar was against him.
13. And no witnesses should be permitted to give evidence in the matter.
14. Which proves that the confession was genuine.
15. Which was thus not a genuine confession.
16. In this matter.
17. As R. Hamnuna was of the elders of the School of Rab; v. Sanh. 17b. [Var. lec.: Raba said to him (to R. Hamnuna], You have got the better of the elders of the school of Rab (viz. R. Huna), v. Tosaf.]
18. [I.e., against the ruling R. Huna reported in the name of Rab.]
19. In support of the distinction made by R. Hamnuna.

Is not the purpose to indicate to us that it was only where the theft was testified to by two witnesses and the slaughter by one or by the thief himself, in which case it was not the confession¹  which made him liable for the principal, that we argue that confession by the thief himself is meant to be analogous to the testimony borne by one witness? So that just as in the case of testimony by one witness, as soon as another witness appears and joins him liability would be established, so also in the case of confession by the thief himself, if witnesses subsequently appear and testify to the same effect he would become liable. If, however, the very theft and slaughter [or theft and] sale were testified to by one witness or by the thief himself, in which case the confession made him liable at least for the principal, we would not argue that confession by the thief himself should be analogous to the testimony borne by one witness.²  [The proof] from the Baraitha [is] as it was taught: If a thief notices that witnesses are preparing themselves to appear and he confesses, 'I have committed a theft [of an ox] but I neither slaughtered it nor sold it' he would not have to pay anything but the principal.³  Now, what need is there for the words, 'and he confessed, I have committed the theft [of an ox] but I neither slaughtered it, nor sold it'? Why not simply state 'I have committed the theft [of an ox], or I slaughtered it or I sold it'? Is not the purpose to indicate that it was only where the thief confessed, 'I have committed the theft [of an ox]'. where it was he who by confession made himself liable for the principal, that he would be exempt from the fine, whereas if he had stated 'I have not committed any theft', and when witnesses arrived and testified that he did commit a theft, he turned round and confessed 'I have even slaughtered it or sold it', and witnesses subsequently appeared [and testified] that he had indeed slaughtered it or sold it, in which case it was not he who made himself liable for the principal, he would have to be liable for the fine, thus proving that a confession merely regarding the act of slaughter should not be considered a confession [to bar the pending liability of a fine]!⁴  — It may, however, be said that this is not so, as the purpose [of the apparently superfluous words] might have been to indicate to us the very ruling that since he confessed 'I have committed the theft [of an ox or a sheep]' even though he still said 'I have neither slaughtered it nor sold it' and witnesses appeared [and testified] that he did slaughter it or sell it, he would nevertheless be exempt from any fine, the reason being that the Divine Law says: 'Five-fold or four-fold payment⁵  respectively, but not 'four-fold or three-fold payment'⁶  respectively.

Shall we say that the following Tannaim differed on this point? [For it has been taught:] Where two witnesses testified to a theft [of an ox] and other two witnesses subsequently gave evidence that the thief had slaughtered it or sold it, and the witnesses regarding the theft were proved zomemim,⁷  since the testimony became annulled regarding a part of it,⁸  it would become annulled regarding the whole of it.⁹  But if [only] the witnesses to the slaughter were proved zomemim, he would have to make double payment,¹⁰  whereas they¹¹  would [have to pay him three-fold payment as restitution].¹²  In the name of Symmachus it was, however, stated that they would have to make double payment,¹³  whereas he would have to make three-fold payment for an ox and double payment for a ram.¹³  Now, to what did Symmachus refer? It could hardly be to that of the opening clause,¹⁴  for would Symmachus not agree that a testimony becoming annulled regarding a part of it should become annulled regarding the whole of it? If again he referred to the concluding clause,¹⁵  did the Rabbis not state correctly that the thief should make double payment while the false witnesses would have to make three-fold payment? It must therefore be that there was another point at issue between them,¹⁶  viz., where a pair of witnesses came and said to him: 'You have committed the theft [of an ox]'. and he said to them: 'It is true that I have committed the theft [of an ox] and even slaughtered it or sold it, but it was not in your presence that I committed the theft', and he in fact brought witnesses who proved an alibi¹⁷  against the first witnesses that it was not in their presence that he committed the theft, while the plaintiff brought further witnesses who gave evidence against the thief that he had committed the theft [of an ox] and slaughtered it or sold it. They would thus differ as to the confession regarding the slaughter, the Rabbis holding that though in regard to the theft it was certainly because of the witnesses¹⁸  that he confessed, the confession regarding the slaughter¹⁹  should have the usual effect of confession and exempt him from the fine, whereas Symmachus held that since regarding the theft it was because of witnesses that he confessed, the confession of the slaughter should not have the [full] effect of a confession [as it did not tend to establish any civil liability], so that the first witnesses who were found zomemim²⁰  would have to pay him²¹  double, whereas he²¹  would have to pay three-fold for an ox and double for a ram!²²  — R. Aha the son of R. Ika said: No, all might agree that the confession regarding the slaughter would not have the [exempting] effect of a confession, and where they differ here is regarding evidence given by witnesses whom you would be unable to make subject to the law applicable to zomemim, as e.g., where two witnesses came and said to him: 'You have committed the theft [of the ox]', and he said to them: 'I did commit the theft [of the ox] and even slaughtered it or sold it; it was, however, not in your presence that I committed the theft, but in the presence of so-and-so and so-and-so,' and he in fact brought witnesses who proved an alibi against the first witnesses, that it was not in their presence that he committed the theft, but so-and-so and so-and-so [mentioned by the thief] came and testified against him that he did commit the theft [of the ox] and slaughtered it or sold it. The point at issue in this case would be as follows: The Rabbis maintain that this last evidence was given by witnesses whom you would [of course] be unable to make subject to the law applicable to zomemim [as they were pointed out by the thief himself],²³  and any evidence given by witnesses whom you would be unable to make subject to the law applicable to zomemim could not be considered valid evidence,²⁴  whereas Symmachus maintained that evidence given by witnesses whom you would be unable to make subject to the law applicable to zomemim would be valid evidence.²⁵  But is it not an established tradition with us²⁶  that any evidence given by witnesses whom you would be unable to make subject to the law applicable to zomemim could not be considered valid evidence? — This is the case only where the witnesses do not know the exact day or the exact hour of the occurrence alleged by them,²⁷  in which case there is in fact no evidence at all, whereas here [your inability to make them subject to the law applicable to zomemim was only because] the thief himself was in every way corroborating their statements.

The Master stated: 'They²⁸  would have to make double payment. But since in this case the thief admitted that he did commit the theft, so that he would surely be required to pay the principal, [why should the witnesses proved zomemim have to make double payment?]²⁹  — Said R. Eleazar in the name of Rab: Read:

1. But the testimony of two witnesses.
2. But a confession of this nature bars subsequent evidence in accordance with the view of Rab.
3. Shebu. 49a.
4. Supporting thus the distinction made by R. Hamnuna.
5. Ex. XXI, 37.
6. I.e., since he confessed regarding the theft, in which case he will only have to pay the principal, since the doubling of it is a fine, he will not be subject to the fine of slaughter or sale even when denied by him and testified to by two witnesses, on account of the fact that the payment in this case would have to be not five-fold but four-fold for an ox and not four-fold but three-fold for a sheep.
7. V. Glos.
8. I.e., regarding the theft.
9. I.e., regarding also the slaughter or sale, for surely if there was no theft there, no slaughter and sale of a stolen animal could have been there.
10. For the theft which was testified to by the other set of witnesses.
11. The second set proved zomemim.
12. In accordance with Deut. XIX, 19.
13. V.. the discussion later on.
14. Where the witnesses to the theft were proved zomemim.
15. Where the witnesses to the slaughter or sale were proved zomemim.
16. I.e., Symmachus and the Rabbis.
17. V. p. 421, n. 1.
18. I.e., the first set of witnesses.
19. Which was not made through any fear.
20. Regarding the theft.
21. The thief.
22. I.e., the prescribed fine for the slaughter or sale. This therefore proves that the Rabbis maintained that a confession which does not involve the liability of the principal should still have the effect of a confession, in contradiction to R. Hamnuna, whereas Symmachus would maintain that it should be devoid of the absolute exempting effect of a confession to liability for a fine.
23. Against whom they gave evidence.
24. [The thief would accordingly be exempt from the fine for the slaughter and sale of which he stands convicted, as it were on his own evidence.]
25. [Hence the thief, on his part. would have to pay the exclusive fine for the slaughter or sale.]
26. Cf. Sanh. 41a and 78a.
27. Cf. Sanh. 40a.
28. I.e., the witnesses who gave evidence regarding the theft and were proved zomemim.
29. They should have to pay no more than the amount of a single payment.