Bava Kamma 146

לאו כדיבור דמי ורבי יוסי סבר תוך כדי דיבור כדיבור דמי

are not equivalent in law to a single undivided statement,<span class="x" onmousemove="('comment',' So that the evidence as to the theft and the evidence as to the slaughter could in no manner be considered as one, but are completely independent testimonies, and if the accusation of zomem was proved regarding the latter the former could not be affected. ');">¹</span>

וסבר ר' יוסי תוך כדי דיבור כדיבור דמי והתנן הרי זו תמורת עולה תמורת שלמים הרי זו תמורת עולה דברי ר"מ

whereas R. Jose maintained 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.<span class="x" onmousemove="('comment',' So that the evidence as to the theft and the evidence as to the slaughter form one testimony to all intents and purposes. ');">²</span>

ר' יוסי אומר אם לכך נתכוון מתחילה הואיל ואי אפשר לקרות שני שמות כאחד דבריו קיימין ואם אמר תמורת עולה ונמלך ואמר תמורת שלמים הרי זו תמורת עולה

But did R. Jose really maintain 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? For we have learnt: If a man declares: Let this animal be a substitute<span class="x" onmousemove="('comment',' See Lev. XXVII, 10. ');">³</span>

והוינן בה נמלך פשיטא

for a burnt-offering, a substitute for a peace-offering, it will be a substitute for the burnt-offering,<span class="x" onmousemove="('comment',' The earlier expression being the decisive one. ');">⁴</span>

ואמר רב פפא נמלך בתוך כדי דיבור קאמרינן

according to the view of R. Meir, whereas R. Jose says: If from the outset he intended this,<span class="x" onmousemove="('comment',' I.e., that it should be a substitute for both offerings. ');">⁵</span>

אמרי תרי תוך כדי דיבור הוי חד כדי שאילת תלמיד לרב וחד כדי שאילת הרב לתלמיד כי לית ליה לרבי יוסי כדי שאילת תלמיד לרב שלום עליך רבי ומורי דנפיש כדי שאילת הרב לתלמיד שלום עליך אית ליה:

his words would have to be acted upon,<span class="x" onmousemove="('comment',' And the animal will have to be kept until it becomes blemished when it will be sold and half of the money realised will be utilised for a burnt-offering, and the other half for a peace-offering. ');">⁶</span>

אמר רבא עדים שהוכחשו ולבסוף הוזמו נהרגין דהכחשה תחילת הזמה היא אלא שלא נגמרה

as it was impossible for him to utter two terms at the same time, but if he first declared; 'Substitute for a burnt-offering', and then changed his mind and said, 'Substitute for a peace-offering', it will be a substitute for a burnt-offering only.<span class="x" onmousemove="('comment',' Tem. V, 4. ');">⁷</span>

אמר רבא מנא אמינא לה דתניא מעידני באיש פלוני שסימא את עין עבדו והפיל את שינו שהרי הרב אומר כן ונמצאו זוממין משלמין דמי עין לעבד

Now this statement we found strange; for is not the case of a change of mind obvious?<span class="x" onmousemove="('comment',' V. p. 419, n. 4. ');">⁸</span>

היכי דמי אילימא כדקתני דליכא כת אחרינא משלמין דמי עין לעבד בתר דמפקי ליה לחירות דמי עינו קבעי שלומי

And R. Papa therefore said: We assume that the change of mind took place within the minimum of time [required for the utterance of a greeting]!<span class="x" onmousemove="('comment',' Where it might have been suggested that the two utterances constituted a single indivisible statement. ');">⁹</span>

ועוד דמי כוליה עבד לרב בעי לשלומי ועוד שהרי הרב אומר כן הרב מי ניחא ליה

[Does this not prove that R. Jose maintained that statements following one another within the minimum of time sufficient for the utterance of a greeting would not be equivalent in law to a single undivided statement?]<span class="x" onmousemove="('comment',' For if otherwise why should the first utterance be more decisive than the second? ');">¹⁰</span>

אלא לאו כגון דאתו בי תרי ואמרי הפיל את שינו סימא את עינו דבעי מיתיב ליה הרב דמי עינו ואתו בי תרי מציעאי ואמרי עינו והדר שינו דלא בעי למיתב ליה אלא דמי שינו דקא מכחשי ליה קמאי למציעאי

— It may be said that there are two different minimums of time [within which two different kinds of greetings could be uttered], one sufficient for the greeting given by a disciple to his master, and the other sufficient for the greeting of the master to the disciple. Where<span class="x" onmousemove="('comment',' In the case of Tem. V, 4. ');">¹¹</span>

והיינו שהרי הרב אומר כן דניחא ליה במאי דקאמרי

R. Jose does not hold [the two statements to be one] is where the interval is sufficient for the greeting of a disciple to the master, viz. 'peace [upon] thee, master [and] teacher,' as this is too long,<span class="x" onmousemove="('comment',' Consisting as it does of four words. [MS.M. and Asheri omit '(and) teacher,' making it thus consist of three words.] ');">¹²</span>

וקתני ונמצאו זוממין מציעאי משלמין דמי עין לעבד

but where it is only sufficient for the greeting of the master to the disciple, 'peace [upon] thee,<span class="x" onmousemove="('comment',' Consisting only of two words. ');">¹³</span>

שמע מינה הכחשה תחילת הזמה היא

he holds that they do [form one].

אמר אביי לא

Raba stated: Witnesses [testifying to a capital charge] who have been proved wrong<span class="x" onmousemove="('comment',' On the subject matter of their evidence, after sentence had been passed. ');">¹⁴</span>

דאפכינהו ואזמינהו

[by a pair of other witnesses]<span class="x" onmousemove="('comment',' For which, however, no retaliatory punishment could be imposed upon them, as Deut. XIX, 19, does not refer to witnesses who were contradicted on the subject matter of their evidence but against whom the accusation (in a sense) of an alibi was proved, i.e. where they were declared zomemim. ');">¹⁵</span>

ממאי

and subsequently also proved <i>zomemim</i>, would be put to death, as the confutation was a first step in the subsequent proof of an alibi,<span class="x" onmousemove="('comment',' [The term 'alibi' is used here for convenience sake, as it deals here with the presence or absence of the witnesses of the alleged crime at the time when it was committed, rather than with the presence or absence of the accused, as the term is generally understood.] ');">¹⁶</span> though the proof of this was not yet complete at that time. Raba said: [The authority] on which I base this is that which has been taught: [If a set of witnesses declare], We testify that so-and-so has put out the eye of his slave<span class="x" onmousemove="('comment',' For which he has to let him go free, cf. Ex. XXI, 26-27. ');">¹⁷</span> and<span class="x" onmousemove="('comment',' Subsequently. ');">¹⁸</span> knocked out his tooth<span class="x" onmousemove="('comment',' For which he has to pay the five items in accordance with infra p. 473. ');">¹⁹</span> (and so indeed the master himself says), and these witnesses are [by subsequent witnesses] proved <i>zomemim</i>, they would have to pay<span class="x" onmousemove="('comment',' In retaliation. ');">²⁰</span> the value of the eye to the slave.<span class="x" onmousemove="('comment',' Tosef. Mak. 1. ');">²¹</span> How are we to understand this? If we assume, according to the apparent meaning of the text, that there was here no other pair of witnesses,<span class="x" onmousemove="('comment',' Giving evidence for the slave. ');">²²</span> why should they pay the value of the eye to the slave? After they have done their best to get him [undeservedly] freed, are they also to pay him the value of his eye? Moreover, should they in such a case not have to pay the owner for the full value of the slave [as they falsely demanded his freedom]? Furthermore, 'and so indeed the master himself says,' — how could the master be satisfied [with such a false allegation to his detriment]? Does it therefore not mean a case, e.g., in which a pair of witnesses had already appeared [previously] and stated that the master knocked out the slave's tooth and then put out his eye so that the master would have to pay him the value of his eye,<span class="x" onmousemove="('comment',' Which is of course more than that of his tooth. ');">²³</span> and a middle pair of witnesses appeared later and stated that the first put out the slave's eye and then his tooth, so that he would not have to give him anything but the value of his tooth,<span class="x" onmousemove="('comment',' Which is less than that of his eye and thus giving evidence for the benefit of the master and against the slave. ');">²⁴</span> so that the first set of witnesses confuted the middle set, and it is to this that the words refer 'and so indeed the master himself says', for he was well satisfied with the statement alleged by the middle set? The text then goes on: 'And these are [by subsequent witnesses] proved zomemim' — that is, the middle set — 'they would have to pay the value of the eye to the slave'.<span class="x" onmousemove="('comment',' I.e., the difference between the value of the eye and the value of the tooth of which they conspired to deprive the slave. ');">²⁵</span> Does not this show that the confutation is the first step in a subsequent proof of an alibi?<span class="x" onmousemove="('comment',' And that after the accusation of an alibi was proved, the law of retaliation will apply despite the fact that their evidence had already been previously impaired. ');">²⁶</span> — Abaye said: No; [what we can assume is] that the statement of these witnesses was transposed by a [second] set of witnesses, who also proved them <i>zomemim</i>.<span class="x" onmousemove="('comment',' [There were, that is to say, only two sets of witnesses, the former set testifying that the injury was done to the eye first and then to the tooth, while the second set giving evidence to the contrary and at the same time proving the first set zomemim, in which case the first would have to pay the slave the value of his eye.] ');">²⁷</span> That this was so is evident,