Bava Kamma 147

מדסיפא במיפך והזמה רישא נמי במיפך והזמה

since, the later clause deals with witnesses whose statements were transposed by the same set of witnesses that proved them <i>zomemim</i>, so also the earlier clause deals with a case where the statements of the witnesses were transposed by the same subsequent set of witnesses who proved their alibi. For it says in the later clause: If a set of witnesses declare: We testify against so-and-so that he had first knocked out his slave's tooth and then put out his eye — as indeed the servant says — and they were by subsequent witnesses proved <i>zomemim</i>, they would have to pay the value of the eye to the master. Now how are we to understand this? If we assume that the witnesses of the second set did not agree [with those of the first set] regarding any injury at all, why then should the first witnesses not have to pay the master the whole value of the slave?<span class="x" onmousemove="('comment',' Whom they wanted without proper ground to set free. ');">¹</span>

דקתני סיפא מעידנו את איש פלוני שהפיל את שן עבדו וסימא את עינו שהרי העבד אומר כן ונמצאו זוממין משלמין דמי עין לרב

Does it therefore not mean that all the witnesses agreed that an injury was inflicted, but that the witnesses of the second set reversed the order stated by the first set of witnesses<span class="x" onmousemove="('comment',' I.e., while the former stated that the master first knocked out his slave's tooth and then put out his eye the second set testified that he first put out the slave's eye and then knocked out his tooth. ');">²</span>

היכי דמי אי דלא קא מודו להו בתראי בחבלא כלל דמי כוליה עבד לרב בעי שלומי ליה

while they also proved them <i>zomemim</i>? But still, what were the circumstances? If the witnesses of the second set post-dated the injury, why should the witnesses of the first set still not have to pay the master the whole value of the slave, since they falsely alleged liability to have rested upon a man at the time when that man was in fact not yet subject to any liability? — We must therefore say that the witnesses of the second set antedated the injury. But again, if [at the time when the witnesses of the first set gave evidence] the master had not yet appeared before the Court [on the matter], why should they still not have to pay him the whole value of the slave as at that time he was still a man subject to no liability?<span class="x" onmousemove="('comment',' And it was they who conspired to allege liability against him; cf. Rashi and Tosaf. a.l. and Mak. 5a. ');">³</span>

אלא פשיטא דקא מודו כולהו בחבלא

— It must therefore deal with a case where he had already made his appearance before the Court.<span class="x" onmousemove="('comment',' And he was ordered to let the slave go free on the strength of some testimony by earlier witnesses, without any direction as to any payment to be made to the slave who now seeks to recover from the master compensation for the eye or tooth. ');">⁴</span>

ודקא אפכינן ואזמינהו

R. Aha the son of R. Ika said to R. Ashi: Whence could Raba prove this point?<span class="x" onmousemove="('comment',' Even according to his interpretation that three sets of witnesses took part in the controversy. ');">⁵</span>

והיכי דמי אי דקא מאחרי אחורי הני בתראי אכתי דמי עבד לרב בעי שלומי

It could hardly be from the earlier clause, for were the witnesses of the middle set<span class="x" onmousemove="('comment',' Stating that the master first put out the eye of his slave and then knocked out his tooth. ');">⁶</span>

דכי מחייבי ליה לגברא אכתי גברא לאו בר חיובא הוא אלא דקא מקדמי קדומי הני בתראי

those who were confuted?<span class="x" onmousemove="('comment',' I.e., the effect of their evidence invalidated. ');">⁷</span>

ואי דלא עמד בדין אכתי דמי כוליה עבד לרב בעי שלומי ליה דאכתי גברא לא מיחייב

For indeed were they not proved <i>zomemim</i>; their statements would have remained the decisive evidence<span class="x" onmousemove="('comment',' Against the earlier set testifying that the master first knocked out his slave's tooth and then put out his eye. ');">⁸</span>

אלא דעמד בדין

as the case would have been decided according to their allegations, on the principle that in the total of two hundred<span class="x" onmousemove="('comment',' I.e., e.g. the value of the eye, testified by the first. ');">⁹</span>

א"ל רב אחא בריה דרב איקא לרב אשי דוקיא דרבא מהיכא אילימא מרישא רישא מי קא מתכחשי מציעאי

the sum of a hundred<span class="x" onmousemove="('comment',' I.e., the value of the tooth, testified by the middle set. ');">¹⁰</span>

כיון דאי לא מתזמי סהדותא כוותייהו קא קיימא דדינא כוותייהו פסקינן דיש בכלל מאתים מנה

is included. Does it not then clearly follow that it was the first set of witnesses<span class="x" onmousemove="('comment',' Stating that the master first knocked out his slave's tooth and then put out his eye. ');">¹¹</span>

הלכך קמאי הוא דקא מתכחשי מציעאי לא מתכחשי מידי

who were thus confuted<span class="x" onmousemove="('comment',' I.e., the effect of their evidence invalidated. ');">⁷</span>

אמר ליה רבא סבר מדרישא בשלש כיתות סיפא נמי בשלש ודייק מסיפא

whereas the middle set of witnesses were not confuted at all?<span class="x" onmousemove="('comment',' [And this clause can thus afford no proof to Raba's ruling.] ');">¹²</span>

כגון דאתו בי תרי ואמרי הפיל את שינו וסימא עינו ופסקיניה לדינא אפומייהו

— He replied: Raba maintained that as the earlier clause dealt with three sets [of witnesses giving evidence] the later clause similarly presented the law in a case where three sets [gave evidence], and tried thus to prove his point from the later clause. [For this clause would thus have dealt with a case] where e.g., a set of two witnesses had appeared and alleged that the master first knocked out his [slave's] tooth and then put out his eye, and after the verdict was given in accordance with their testimony a set of other witnesses arrived and stated that the first put out his [slave's] eye and then his tooth, thus contradicting the witnesses of the first set, and as these [latter] were also proved <i>zomemim</i> they would have to pay the value of the slave's eye<span class="x" onmousemove="('comment',' I.e., the difference between the value of the eye and that of the tooth. ');">¹³</span>

ואתו בי תרי אחריני ואמרי סימא את עינו והפיל את שינו דקא מכחשי להו להני קמאי ונמצאו זוממין קמאי משלמין דמי עין לרב

to the master. Now if you assume that a confutation is not considered a first step in a subsequent proof of an alibi, why should they have to pay anything<span class="x" onmousemove="('comment',' Even when proved zomemim. ');">¹⁴</span>

ואי סלקא דעתך הכחשה לאו תחילת הזמה היא אמאי משלמי הא אתכחשו להו מעיקרא אלא שמע מינה הכחשה תחילת הזמה היא

after they had already been confuted? Does this therefore not prove that a confutation does constitute a first step in a subsequent proof of an alibi? And Abaye? — He might have rejoined: I grant you that the earlier clause cannot be explained save on the assumption that there were three sets, for it was stated there 'as indeed the master also says',<span class="x" onmousemove="('comment',' Corroborating the witnesses stating that he put out the slave's eye and knocked out his tooth, for if these witnesses were the first to give evidence on the matter it would surely not be in the interest of the master to corroborate them. [R. Ashi does not accept as authentic the explanation given above in the name of Abaye, which was based on the assumption that Raba proved his ruling from the earlier clause, v. Tosaf. supra 73b. s.v. [H].] ');">¹⁵</span>

ואביי אמר לך בשלמא רישא לא סגי דלא שלש כיתות שהרי קתני הרב אומר כן

but so far as the later clause is concerned, what need have I for three sets, since the statement 'as indeed the slave also says'<span class="x" onmousemove="('comment',' In corroboration of the witnesses stating that the master knocked out his tooth and put out his eye. ');">¹⁶</span>

אלא סיפא למה לי שלש כיתות שהרי העבד אומר כן

is perfectly natural as the slave would surely say anything, being satisfied at the prospect of going free?<span class="x" onmousemove="('comment',' How much the more so in this case where the evidence of the witnesses is completely for the benefit of the slave. ');">¹⁷</span>

עבד כל דהו מימר אמר דניחא ליה דניפוק לחירות

R. Zera demurred [to the general implication]:<span class="x" onmousemove="('comment',' That a master knocking out the tooth of his slave and putting out his eye should do both — let him go free for the tooth and pay compensation for the eye. ');">¹⁸</span>

מתקיף לה ר' זירא אימא סימא את עינו

Why not say that when the master puts out his [slave's] eye