BAVA KAMA 73 - Two weeks of study material have been dedicated by Ms. Estanne Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

1)

FROM WHEN ARE ZOMEMIM WITNESSES DISQUALIFIED? (cont.)

(a)

Question: Practically, what is the difference between the two versions?

(b)

Answer #1: A different pair of witnesses was Mazim each witness (so it is no Chidush to believe the Mazimim. Each pair of Mazimim is contradicted by only one witness.)

(c)

Answer #2: The witnesses who testified were not Huzmu. Rather, other witnesses said that these witnesses stole before they testified (therefore, they were invalid witnesses).

1.

According to both answers, it is no Chidush to believe the latter witnesses. According to Version #1, the first witnesses are disqualified retroactively;

2.

According to Version #2, they are not disqualified retroactively, lest buyers lose.

(d)

(R. Yirmiyah mi'Difti): A case occurred, and Rav Papa ruled like Rava.

(e)

(Rav Ashi): The Halachah follows Abaye.

(f)

The Halachah follows Abaye against Rava in six places. The acronym is YA'AL K'GAM. (Yud alludes to Yi'ush (despair) without knowledge that the object was lost; it is not considered Yi'ush. Ayin alludes to Edim Zomemim (they are disqualified retroactively). Lamed alludes to Lechi (a vertical post to permit carrying in an alley, Leidah (days of childbirth on which she did not see blood) or Lo Efshar (inevitable) benefit from Isur). Kuf alludes to Kidushin that forbids the couple to have Bi'ah. Gimel alludes to Giluy Da'as (showing desire) to nullify a Get. Mem alludes to Mumar (a wanton sinner) who sins to fulfill his desires (not to anger Hash-m).

(g)

(Mishnah): If two witnesses testified that Reuven stole and slaughtered, and they were found to be Zomemim, they pay the full fine.

(h)

Assumption: The case is, they testified about the theft, and then about the slaughter. They were Huzmu (found to be Zomemim) about the (testimony on the) theft, then they were Huzmu about the slaughter.

(i)

Question (against Abaye): If Edim Zomemim are disqualified retroactively, since they were Huzmu on the theft, it turns out that they were disqualified when they testified about the slaughter. They should not pay that part of the fine!

(j)

Answer #1: The case is, they were Huzmu about the slaughter first.

(k)

Objection: Still, when they were Huzmu about the theft, this shows that retroactively they were disqualified when they testified about the slaughter!

(l)

Answer #2: The case is, they testified on the theft and slaughter at the same time.

(m)

Suggestion: Tana'im argue as Abaye and Rava do.

1.

(Beraisa): If two witnesses testified that Reuven stole, and also that he slaughtered, and they were Huzmu about the theft, partially nullified testimony is totally nullified;

2.

If they were Huzmu about the slaughter, Reuven pays Kefel, and the witnesses pay (two or) three;

3.

R. Yosi says, this applies to two testimonies. Regarding one testimony, partially nullified testimony is totally nullified (Reuven is exempt).

4.

Question: What does 'one or two testimonies' mean?

i.

Suggestion: 'Two testimonies' is when a different pair testified about the slaughter. 'One testimony' is when the same pair of witnesses testified at two different times.

ii.

Rejection: If so why would R. Yosi say that regarding one testimony, Hazamah about the slaughter nullifies testimony about the theft? It is a separate testimony!

5.

Answer: Rather, 'two testimonies' is when one pair testified like two testimonies, one after the other. One testimony is when they testified about the theft and slaughter together.

6.

Assumption: Both Tana'im hold that anything done Toch Kedei Dibur (within a short time; this will be defined later) is a continuation of the previous matter.

i.

Suggestion: Chachamim hold that Edim Zomemim are disqualified from the time they are contradicted and onwards. Therefore, they are Huzmu only about the slaughter;

ii.

R. Yosi holds that they are disqualified retroactively from when they testified falsely. Since their testimony about the slaughter is like a continuation of their testimony about the theft, they are Huzmu about both.

(n)

Rejection: No, all disqualify Edim Zomemim retroactively. They argue about whether or not Toch Kedei Dibur is considered a continuation of the previous matter;

1.

Chachamim say that it is not a continuation. R. Yosi says that it is.

73b----------------------------------------73b

2)

TOCH KEDEI DIBUR [line 2]

(a)

Question: R. Yosi holds that Toch Kedei Dibur is not a continuation of the previous matter!

1.

(Mishnah - R. Meir): If one said 'this (Chulin animal) is Temuras Olah (he tried to transfer the Kedushah of an Olah to the animal), Temuras Shelamim', it is Temuras Olah (it is an Olah);

2.

R. Yosi says, if he intended from the beginning to make a Temurah of both, it works;

i.

Since he cannot say both simultaneously, he said them one after the other.

3.

If he said 'this is Temuras Olah', then reconsidered and said 'Temuras Shelamim', it is Temuras Olah.

4.

Question: This is obvious!

5.

Answer (Rav Papa): He reconsidered Toch Kedei Dibur.

(b)

Answer: There are two measures of Toch Kedei Dibur: a Talmid greeting his Rebbi, and a Rebbi greeting his Talmid;

1.

A Rebbi greets his Talmid 'Shalom Alecha' (two words). R. Yosi holds that within this time is a continuation;

2.

A Talmid greets his Rebbi 'Shalom Alecha Rebbi u'Mori' (four words). R. Yosi holds that within this time (but after the time for two words) is not a continuation.

3)

HAZAMAH AFTER CONTRADICTION [line 16]

(a)

(Rava): If witnesses (about a capital case) were contradicted, and later they were Huzmu, they are killed. Contradiction is the beginning of Hazamah (we do not say that they are exempt because their testimony was already disqualified before they were Huzmu), but the Hazamah is not yet complete. We learn this from a Beraisa.

1.

(Beraisa): If two said 'we testify that Ploni blinded his slave's eye and knocked out his tooth. Behold, Ploni says so', and they were Huzmu, they pay to the slave the value of his eye.

2.

Question: What is the case?

i.

Suggestion: No other witnesses testified that Ploni hurt his slave.

ii.

Rejection #1: They made the slave go free. Why should they pay him?!

iii.

Rejection #2: They should pay the master for depriving him of his slave!

iv.

Rejection #3: Why does it say 'behold Ploni says so'? Their testimony hurts Ploni!

3.

Answer: Rather, two witnesses testified that Ploni knocked out his slave's tooth, then blinded his eye. This obligates Ploni to (free the slave and) pay the value of his eye;

i.

Two other witnesses testified that Ploni blinded his slave's eye, then knocked out his tooth. This obligates Ploni to (free the slave and) pay the value of the tooth;

ii.

This contradicts the first witnesses. The master supports the latter witnesses, for they obligate him to pay less.

4.

The Beraisa concludes that if they were Huzmu, they pay to the slave the value of his eye;

i.

This shows that contradiction is the beginning of Hazamah.

(b)

Rejection ((Tosfos - on behalf of) Abaye): No. The case is, the second pair of witnesses testified that Ploni blinded the eye, then knocked out his tooth, and also were Mazim the first pair. (They said, your testimony was fabricated. At the time you claim to have witnessed the blows, you were with us elsewhere. Really, he hit his slave at a different time!)

(c)

Question: Why does (should) Abaye explain this way?