ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Kama 73
BAVA KAMA 73 (21 Tishrei, Hoshana Raba) - dedicated by Gedalyah Jawitz of
Wantagh, N.Y., honoring the Yahrtzeit of his father, Yehuda ben Simcha Volf
(a) We learned in our Mishnah that if two witnesses testified that someone
stole a sheep or a cow and Shechted or sold it, and then become Zomemin,
they are obligated to pay both Kefel and Daled ve'Hey. Initially, we ask
from this Mishnah on Abaye (who holds 'Eid Zomem Lemafre'a Hu Nifsal') -
because we think that everything followed the natural sequence, first the
Ganav stole, then he Shechted or sold the animal, then the witnesses became
Zomemin on the Geneivah, and then on the Tevichah or the Mechirah. In that
case it transpires that, when the witnesses became Zomemin on the Geneivah,
they were Pasul at the time that they testified on the Tevichah and the
Mechirah, in which case they ought not to pay Daled ve'Hey (since it is only
if the witnesses' testimony on the Tevichah and Mechirah is valid that they
can subsequently be declared Zomemin on it).
The Tana Kama of the Beraisa says - that a set of witnesses who testified
that someone stole an animal and Shechted or stole it and who then became
Zomemin on the testimony ...
(b) We try to answer that the Tana speaks when they were first made Zomemin
on the Tevichah. This answer is unsatisfactory however - on the grounds that
seeing as they testified on the Geneivah first, they will later turn out to
have been retroactively Pasul at the time when they testified on the
Tevichah ... , in which case they will still not be liable to pay Daled
(c) So to conform with Abaye - we establish our Mishnah when they testified
on both the Geneivah and the Tevichah or the Mechirah one after the other
('Toch K'dei Dibur'), because then, one cannot say that when they testified
on the Tevichah ... , they were already Pasul (seeing as their testimony on
the Geneivah ... did not take place more a Toch K'dei Dibur before the
Tevichah or the Mechirah.
(d) Indeed it matters in which order the Hazamah took place - because if the
Hazamah took place first on the Geneivah, he will be Pasul, and will be
Patur from Daled ve'Hey (as we explained earlier).
1. ... of the theft - 'Eidus she'Batlah Miktzasah Batlah Kulah.
2. ... of the Tevichah or the Mechirah - the Ganav pays Kefel, and the
witnesses, Daled ve'Hey.
(a) Rebbi Yossi makes a distinction between two sets of witnesses and one
set of witnesses. In the latter case, he says 'Eidus she'Batlah Miktzasah,
Batlah Kulah'. We refute the suggestion that Rebbi Yossi means literally two
sets of witnesses and one set of witnesses - which we would then present if
that one set testified on two separate occasions, first on the Geneivah,
which they say, took place on Sunday, and then on the Tevichah or Mechirah,
which took place on Monday, even if they were made Zomemin on the second
(b) We refute this suggestion however, on the grounds - that there would
then be no reason to render the witnesses Zomemin on the Geneivah (as we
(c) The case of ...
1. ... 'Sh'tei Idiyos' therefore is - the case that we just suggested for
'Eidus Achas', which Rebbi Yossi refers to as 'two Idiyos' because they
testified on two separate occasions
(d) Assuming that both Tana'im hold of the principle 'Toch K'dei Dibur
ke'Dibur Dami', we suggest the basis of their Machlokes to be the same as
that of Abaye and Rava; Rebbi Yossi holds 'Eid Zomem Lemafre'a Hu Nifsal'
(like Abaye, as we explained above), whereas the Rabbanan hold 'mi'Ka'an
u'Lehaba Hu Nifsal' like Rava, and since the witnesses were only invalidated
on the Tevichah ... , their testimony on the Geneivah remains intact
(despite the fact that it was presented 'Toch K'dei Dibur' before that of
the Tevichah ... .
2. ... 'Eidus Achas' - is where the Eidus on the Tevichah or the Mechirah
took place one after the other (and in that order) 'Toch K'dei Dibur'.
(a) We conclude that both Tana'im may well hold 'Eid Zomem Lemafre'a
Nifsal', and the reason that the Rabbanan do not negate the testimony on the
Geneivah which was said 'Toch K'dei Dibur' prior to that of the Tevichah or
the Mechirah is - because they hold 'Toch K'dei Dibur La'av ke'Dibur Dami'.
(b) When, to explain Rebbi Yossi, we say 'Ki Iszamu a'Tevichah, *Iszamu*
Nami a'Geneivah' - we do not mean that they became Zomemin on the Geneivah
(why should they?), but that their testimony is negated (see Maharsha).
(a) Rebbi Meir says in the Mishnah in Temurah 'Harei Zu Temuras Olah,
Temuras Shelamim, Harei Zu Temuras Olah' - because he holds 'T'fos Lashon
Rishon' (when two consecutive statements clash, we adopt the first one, and
ignore the second (because his change of heart is invalid).
Rava says that if witnesses whose testimony a second set of witnesses
countered (Hakchashah), and whom a third set of witnesses then declared
Zomemin, they are considered Zomemin (and are even put to death if that is
what they attempted to achieve with their testimony). Rava does not consider
their testimony invalid from the time of the Hakchashah - because he holds
'Hakchashah Techilas Hazamah Hi' (the Hakchashah of the first set of
witnesses is not independent of the Hazamah, but the beginning of it.
(b) 'If that is what he meant, Rebbi Yossi says, then, since it is
impossible for the two to take effect simultaneously, his words stand. What
he means by ...
1. ... 'if that is what he meant' is - that if the owner (had not changed
his mind, but actually) meant both statement to take effect.
(c) If he changed his mind however, Rebbi Yossi continues, then it is a
Temuras Olah (like Rebbi Meir), which seems rather obvious. So Rav Papa
establishes Rebbi Yossi - when he changed his mind, but within 'Toch K'dei
Dibur', in which case the Chidush is that 'Toch K'dei Dibur La'av ke'Dibur
2. ... 'his words stand' is - that the animal is placed in a field, where it
is allowed to romp around until it obtains a blemish. Then it is sold; half
the proceeds go towards the cost of an Olah, the other half, towards the
cost of a Shelamim.
(d) Indeed, we just concluded that Rebbi Yossi holds 'Toch K'dei Dibur
ke'Dibur Dami' - but that was referring to 'Toch K'dei Dibur of a Rebbe to a
Talmid 'Shalom Alecha'; whereas Rebbi Yossi here is referring to the longer
Shiur of a Talmid to a Rebbe 'Shalom Alecha Rebbi (u'Mori), of which he does
(a) The Beraisa rules that if witnesses testify that a man blinded his Eved
and then knocked out his tooth (which pleased his master), and then were
then declared Zomemin, they must pay the value of the eye to the master.
Besides the fact that if there was only one set of witnesses, then, once the
Eved goes free, why should the witnesses pay for the eye?, the other problem
with this ruling is - that seeing as, with their evidence, they tried to set
him free, the witnesses should be obligated to pay the owner the entire
value of the Eved?
(b) The third problem we have with the Beraisa the way it stands is - what
the Tana means when he says that the master is pleased with their testimony.
Why should he be pleased with testimony which will deprive him of his Eved?
(c) Rava therefore establishes the Beraisa - when a set of witnesses
testified before the Zomemin, and claimed that the master had first knocked
out the Eved's tooth and then his eye, whilst the Zomemin reversed the
(d) This answer the three Kashyos that we just posed - because now, the
Zomemin were not coming to set the Eved free, but to cause the Eved to lose
the payment of his eye, which the first set of witnesses had tried to gain
for him (as well as setting the Eved free for the loss of his tooth).
(a) Rava now attempts to prove his opinion regarding 'Hakchashah Techilas
Hazamah' from here - because according to his explanation of the Beraisa,
this is precisely what it is (the first witnesses contradicted the second
set, before they were declared Zomemin by the third set).
(b) Abaye refutes Rava's proof. According to him, the Tana speaks when no
witnesses testified prior to the witnesses who became Zomemin. And he
answers the three Kashyos - by establishing the Beraisa when the witnesses
who declared the first set Zomemin, also switch the order of events (much in
the same way as the first set did according to Rava).
(c) The problem, according to Abaye, with obligating the Zomemin to pay the
Eved the value of his eye is - why only his eye? Seeing as they attempted to
have him set free, why are they not rather obligated to pay the master the
value of his Eved?