Bava Kamma 145

משום פסידא דלקוחות

might adversely affect purchasers.<span class="x" onmousemove="('comment',' Who innocently invited the same witnesses to attest the deeds of purchase. ');">¹</span>

מאי בינייהו דאסהידו ביה תרי לחד ותרי לחד אי נמי דפסלינהו בגזלנותא

What practical difference is there between the two versions?<span class="x" onmousemove="('comment',' Regarding the view of Raba. ');">²</span>

להך לישנא דאמרת משום חידוש ליכא להך לישנא דאמרת משום פסידא דלקוחות איכא

— Where two witnesses have proved one of a pair <i>zomem</i>, and other two witnesses have proved the other one of the pair <i>zomem</i>;<span class="x" onmousemove="('comment',' Thus not being a case of two against two but two against one, and the procedure could not be termed anomalous. ');">³</span>

אמר רבי ירמיה מדפתי עבד רב פפא עובדא כוותיה דרבא רב אשי אמר הלכתא כוותיה דאביי והלכתא כוותיה דאביי ביע"ל קג"ם:

or again, where the disqualification of the witnesses is based upon an accusation of larceny brought by a subsequent pair.<span class="x" onmousemove="('comment',' In which case the accused two or more cease to act in the strict capacity of witnesses, but become a party interested and partial in the accusation brought against them personally, and the procedure could no more be considered anomalous. ');">⁴</span>

תנן גנב על פי שנים וטבח ומכר על פיהם ונמצאו זוממין משלמין את הכל

According to the version which makes Raba base his view<span class="x" onmousemove="('comment',' Regarding witnesses proved zomemim. ');">⁵</span>

מאי לאו שהעידו על הגניבה וחזרו והעידו על הטביחה והוזמו על הגניבה וחזרו והוזמו על הטביחה

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.<span class="x" onmousemove="('comment',' For so long as the witnesses were not officially disqualified it would be a great hardship to disqualify deeds signed by them at the invitation of innocent purchasers. ');">⁶</span>

ואי סלקא דעתך למפרע הוא נפסל הני כיון דאיתזמו להו אגניבה איגלאי מילתא למפרע דכי אסהדו אטביחה פסולין הוו אמאי משלמין אטביחה

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.<span class="x" onmousemove="('comment',' A mnemonic composed of Y for 'Yeush, Abandonment, B.M. 21b-22b; E for 'Ed, Witness proved zomem, here under consideration; L for Lehi, pole forming a mark of an enclosure, 'Er. 15a; K for Kiddushin, a case of betrothal, Kid. 51a-52a; G for Gilluy, intimation affecting agency in the case of a bill of divorce, Git. 34a; and M for Mumar, a Defiant Transgressor whether or not he be eligible as witness, Sanh. 27a. ');">⁷</span>

אמרי הכא במאי עסקינן כגון שהוזמו על הטביחה תחילה

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 <i>ZOMEMIM</i>, THEY MUST PAY [THE ACCUSED] IN FULL. Does this not mean that they first gave evidence regarding the theft and then<span class="x" onmousemove="('comment',' On a subsequent occasion. ');">⁸</span>

אמרי סוף סוף כי הדרי מיתזמי אגניבה איגלאי מילתא דכי אסהדו אטביחה פסולין הוו אמאי משלמי אטביחה

gave evidence again regarding the slaughter, and that they were proved <i>zomemim</i> regarding their evidence about the theft and then were proved <i>zomemim</i> regarding their evidence about the slaughter? Now, if you assume that a witness proved <i>zomem</i> becomes disqualified retrospectively, [it would surely follow that] as soon as these witnesses were declared <i>zomemim</i> regarding the theft, it became clear retrospectively that when they gave evidence regarding the slaughter<span class="x" onmousemove="('comment',' I.e., on a subsequent occasion. ');">⁹</span>

והלכתא שהעידו בבת אחת והוזמו

they were already disqualified.<span class="x" onmousemove="('comment',' From the moment they had given evidence regarding the theft. ');">¹⁰</span>

לימא כתנאי היו שנים מעידין אותו שגנב והן מעידין אותו שטבח והוזמו על הגניבה עדות שבטלה מקצתה בטלה כולה

Why then should they pay [the retaliation penalty regarding their evidence] about the slaughter?<span class="x" onmousemove="('comment',' Since their evidence regarding slaughter fell to the ground even before they were proved zomemim with reference to it. ');">¹¹</span>

הוזמו על הטביחה הוא משלם תשלומי כפל והן משלמין תשלומי שלשה

— It may be said that we are dealing here with a case where they were first declared <i>zomemim</i> regarding their evidence about the slaughter. But it may still be argued that after all since when they were subsequently declared <i>zomemim</i> 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?<span class="x" onmousemove="('comment',' Since their evidence regarding slaughter should have fallen to the ground even without their having to be proved zomemim with reference to it. ');">¹²</span>

א"ר יוסי בד"א בשתי עדיות אבל בעדות אחת עדות שבטלה מקצתה בטלה כולה

— This law would apply only when they testified at one and the same time to both theft and slaughter,<span class="x" onmousemove="('comment',' In which case the retrospective disqualification through their becoming zomemim with reference to both slaughter and theft begins at the same time. ');">¹³</span>

מאי בשתי עדיות ומאי בעדות אחת אילימא בשתי עדיות בשתי עדיות ממש בשתי כתות בעדות אחת בכת אחת בזה אחר זה

and were afterwards declared <i>zomemim</i>.<span class="x" onmousemove="('comment',' [But first with reference to their evidence about the slaughter. MSS. rightly omit, 'and were&nbsp;… zomemim'.] ');">¹⁴</span>

וא"ר יוסי בעדות אחת בכת אחת בזה אחר זה כי מסהדי אגניבה והדר מסהדי אטביחה כי מתזמי אטביחה עדות שבטלה מקצתה בטלה כולה ואיתזמו להו אגניבה מהיכא תיתי הך

May we say that this matter<span class="x" onmousemove="('comment',' In which Abaye and Raba differ. ');">¹⁵</span>

אלא לאו בשתי עדיות בעדות אחת כעין שתי עדיות ומאי נינהו כת אחת בזה אחר זה אבל בעדות אחת בבת אחת לא

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 <i>zomemim</i> regarding the theft, as their evidence became annulled in part<span class="x" onmousemove="('comment',' I.e., the theft. ');">¹⁶</span>

וסברוה דכולי עלמא תוך כדי דיבור כדיבור דמי

it became annulled altogether. But if they were declared <i>zomemim</i> 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 rulings<span class="x" onmousemove="('comment',' That the accused will still have to pay double payment. ');">¹⁷</span>

מאי לאו בהא קמיפלגי דרבנן סברי מכאן ולהבא הוא נפסל וכיון דמההיא שעתא קא מיתזמי אטביחה דקא מיתזמי איתזום אגניבה דלא מיתזמי לא איתזום

apply only in the case of two testimonies,<span class="x" onmousemove="('comment',' V. the discussion that follows. ');">¹⁸</span>

ר' יוסי סבר למפרע הוא נפסל וכיון דמיד כי אסהידו הוא דמיפסלי כי איתזמו להו אטביחה איתזמו להו נמי אגניבה דהא תוך כדי דיבור כדיבור דמי

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 <i>zomemim</i> 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 <i>zomemim</i> 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?]<span class="x" onmousemove="('comment',' For surely a wrong committed at a later date could not affect the presumed integrity of a man on an earlier occasion. ');">¹⁹</span>

אמרי אי תוך כדי דיבור כדיבור דמי דכולי עלמא למפרע הוא נפסל אלא הכא בתוך כדי דיבור כדיבור דמי קא מיפלגי רבנן סברי תוך כדי דיבור

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 other<span class="x" onmousemove="('comment',' I.e., on different occasions. ');">²⁰</span> 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 them<span class="x" onmousemove="('comment',' I.e., R. Jose and the other Rabbis. ');">²¹</span> would be as follows: The Rabbis<span class="x" onmousemove="('comment',' Representing the anonymous opinion cited first. ');">²²</span> would maintain that a witness proved <i>zomem</i> is disqualified only for the future, and since it is from that time onwards that the effect of <i>zomem</i> will apply it is only with reference to the slaughter regarding which they were declared <i>zomemim</i> that the effect of <i>zomem</i> will apply, whereas with reference to the theft regarding which they were not declared <i>zomemim</i> the effect of <i>zomem</i> will not apply.<span class="x" onmousemove="('comment',' And the accused will still have to pay double payment. ');">²³</span> R. Jose would on the other hand maintain that a witness proved <i>zomem</i> would become disqualified retrospectively, so that from the very moment they had given the evidence, regarding which they were proved <i>zomemim</i>, they would be considered disqualified; from which it would follow that when they were declared <i>zomemim</i> regarding the evidence about the slaughter the effect of <i>zomem</i> 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 <i>zomemim</i> 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]