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Week 95 - Sunday - 16 September 2001

BAVA KAMMA: CHAPTER 7: MISHNAH 2

If according to two he stole and according to them, or according to another two, he slaughtered or sold, he makes four or fivefold payments. If a person stole and sold on the Sabbath, stole and sold for idolatry, stole and slaughtered on Yom Kippur; stole from his father's and slaughtered and sold, and his father later died; stole and slaughtered, and later consecrated - he makes four or fivefold payments. If he stole and slaughtered for a cure or for dogs; if he slaughtered and it was found to be terefah; if he slaughtered an ordinary animal in the Temple Court - he makes four or fivefold payments. Rabbi Shimon exempts in these two cases.

Kehati

If according to - the testimony of - two - witnesses - he stole - an ox or a sheep - and according to them - their testimony - he slaughtered or sold - or according to - the testimony of - another two, he slaughtered or sold, he makes four or fivefold payments - the Gemara explains that our mishnah teaches that although the Torah states, "by two witnesses ... shall a matter be established" (Deut. 19:15), which Rabbi Akiva interpreted to mean a matter, and not half a matter, and if two other witnesses testify that he slaughtered or sold, this is half a matter, for the testimony of the witnesses to the slaughter or the selling is meaningless without the witnesses to the theft, nevertheless since the witnesses to the theft do not require the witnesses to the slaughter, even the testimony about the slaughter is not regarded as half a matter

If a person stole and sold on the Sabbath - and there is no death penalty in this case to exempt him from payment, and similarly, if he stole and sold for idolatry - since selling for idolatry does not render him liable for the death penalty, he must make payment; if, however, he slaughtered on the Sabbath or for idolatry, he is exempt from making the payments, since slaughtering on the Sabbath or for idolatry renders him liable for the death penalty, and a person does not both die and pay (as explained in mishnah 4, below); and even if in this instance he were not liable to the death penalty, e.g. if he had acted inadvertently (shogeg), since this is a capital case, he is not liable for payments (vide supra, 3.10 and the commentary there);

If he stole or slaughtered on Yom Kippur - for which the punishment is karet, and not the death penalty, he is liable for payment as well. Even though every person who is liable for karet and was warned by witnesses that he would receive lashes, is lashed and freed from karet, and a person does not both receive lashes and pay, our mishnah refers to a case in which he was not warned; since he does not receive lashes, he is obligated to pay; we do not say regarding lashes as we do regarding the death penalty that a case involving lashes exempts from payment as does the punishment of lashes itself (see Rambam in his commentary on the mishnah, who, following the Gemara, interprets this in another manner.)

If he stole - an ox or a sheep - from his father and slaughtered or sold it, and his father later died - even though his father died and he is one of the heirs, since his father was alive at the time that he slaughtered or sold, he had already become obligated to make four or fivefold payments, he therefore pays his brothers four or fivefold, in accordance with their share in their father's legacy. If, however, his father died and he later slaughtered or sold, he is not obligated to make four or fivefold payments, since at the time of killing he owned a part of the animal (as will be explained in mishnah 4, below);

If he stole and slaughtered, and later consecrated - the meat, he was already obligated to pay before he dedicated it; in all these cases he makes four or fivefold payment - as we have explained.

If he stole and slaughtered for a cure - for a sick person, or - to feed - dogs, in either case this was a proper ritual slaughtering, since if he so desires he can eat from this meat, and even - if he slaughtered and it was found to be terefah - so that the slaughtering did not render the animal permissible, and even - if he slaughtered an ordinary - animal - i.e. one that was undedicated, in the Temple Court - and it is forbidden to derive any benefit at all from this, nevertheless, in all these cases - he makes four or fivefold payments - since there was nothing invalid in the act of slaughter. Concerning the slaughtering of a non-consecrated animal in the Temple Court, the Gemara explains that the prohibition against benefit is only a Rabbinical ordinance, hence it is still in fact the property of its owner (see Tosafot). Others hold, however, that the prohibition against benefiting from non-consecrated animals which have been slaughtered in the Temple Court is Biblical; they explain that our mishnah refers to a case in which a person commenced the act of slaughter outside the Temple precinct, and completed it inside. In such a case, he had slaughtered the animal before the prohibition against benefiting from it took effect, since as long as the slaughtering is not completed the animal is not prohibited, and in this case it was outside until the conclusion (Gemara and Rashi, B. K. 72b).

Rabbi Shimon exempts - from four or fivefold payment - in these two cases - i.e. of it being found to be terefah and of the unconsecrated animal in the Temple Court, since he holds that unfit slaughtering, i.e., which does not render the animal fit to be eaten, is not regarded as slaughtering.

BAVA KAMMA: CHAPTER 7: MISHNAH 3

If according to two he stole and according to them, he slaughtered or sold and they were found to be conspiring witnesses, they pay everything. If according to two he stole, and according to two others, he slaughtered or sold, if these and these were found to be conspiring witnesses, the former pay kefel, and the latter make a triple payment. If the latter were found to be conspiring witnesses, he pays kefel, and they make a triple payment. If one of the latter is a conspiring witness, the second testimony is void. If one of the former is a conspiring witness, all the testimony is void; for if there was no theft, there was no slaughter and no sale.

Kehati

If according to - the testimony of - two - witnesses, he stole - an ox or a sheep - and - they also testified that he - slaughtered or sold and they were found to be conspiring witnesses - i.e. other witnesses came and said to the first witnesses: How can you testify that you saw A steal an ox or a sheep on such and such a day and that he slaughtered or sold it; you were with us on that day in a different place; they - the witnesses whose evidence was seen to be conspired - pay - to the person against whom they testified that he stole and slaughtered or sold - everything - four or fivefold payments, as it is written in the section of the Torah concerning witnesses who are zomemim, "Then shall you do to him as he had intended [zamam] to do to his brother" (Deut. 19:19); since the witnesses intended to obligate him for four or fivefold payments, they are accordingly obligated to make these payments to him.

The Gemara explains that our mishnah refers to a case in which they testified at the same time about the theft and the slaughter or sale, for if they had testified about one after the other, since the law (according to Abbaye) is that a zomem witness is invalidated retroactively, i.e., all evidence that he gave after giving the testimony proven to have been conspired is void; since these witnesses' testimony regarding the theft was conspired, they became unfit to testify from the time they had testified about the theft; hence when they later testified regarding the slaughter, they were unfit to give testimony, and the law regarding witnesses who are zomemim could not apply to them. Our mishnah, however, undoubtedly refers to a case in which they testified to both matters at the same time, and therefore they were still valid witnesses when testifying about the slaughter, for they could have retracted their testimony concerning the theft while they were talking.

Regarding the refutation itself (hazamah), however, there is no difference whether the testimonies concerning it were given at one time or one after the other; the law is that denial is the beginning of hazamah (according to the opinion of Rabba and Rabbi Yohanan), which means, that if two said, A killed B, and two others denied this, saying that he did not kill, and then two came and proved them to have been conspiring witnesses, they are executed, in keeping with the law of witnesses who are zomemim, since even though their testimony was first denied and then proved conspiratorial, we do not say that the denial nullified their testimony, and that the law of hazamah no longer applies to them. We rather rule that denial is the beginning of hazamah, i.e., the hazamah constitutes the completion of the denial. This is the law in our case; even though they were proved to be conspiratorial first regarding their testimony about the theft and afterwards regarding their testimony about the slaughter, that the refutation of the testimony about the theft is an automatic denial of their testimony about the slaughter, they nevertheless pay everything, since denial is the beginning of hazamah, and the witnesses are zomemim concerning the entire evidence (Melekhet Shelomo, Tosefot Rabbi Akiva Eiger; see Rashi, who interprets this differently; see Hidushei Mahariah).

If according to - the testimony of - two - witnesses - he stole and according to - the testimony of - two other - witnesses - slaughtered or sold if these and these - the two pairs of witnesses - were found to be zomemim, the former - witnesses who testified that he stole - pay - to him the - kefel - that they had intended to make him pay, and the latter - witnesses who testified that he slaughtered or stole - make him a triple payment - for an ox, or a double payment for a sheep, (to complete the four or fivefold payment).

If - only - the latter - witnesses who testified about the slaughter or the sale - were found to be conspiring witnesses (zomemim), he - the thief - pays kefel - on the basis of the testimony of the first pair of witnesses - and they - the witnesses who were found to be zomemim - make a triple payment - for an ox, or a double payment for a sheep.

If one of the latter - witnesses who testified about the slaughter or about the selling - is - proved to be - a conspiring witness (zomem), the second testimony is void - since there is only one witness to the slaughter or sale. The thief pays only kefel, and the witness who was found to be zomem is exempt from making a triple payment, since witnesses do not pay until they both are found to be zomemim.

If one of the former - witnesses to the theft - is - found to be - a conspiring witness (zomem), all the testimony is void - since the testimony about the theft is nullified, the testimony concerning the slaughter and the sale is also nullified, for if there was no theft, there was no slaughter and no sale - and since all the testimony is nullified, he and the witnesses pay nothing.

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