בבא קמא דף עב

דלא אכלי בשרא דתורא.

is because I had not eaten ox meat. In other words, I was fasting yesterday and was unable to concentrate properly.

ואלא מאי שנא רישא ומאי שנא סיפא?

Rava responded to him: But if the Torah requires even a partial payment of the fourfold or fivefold payment, what is different in the first clause, in which the son must pay, and what is different in the latter clause, where he is exempt?

אמר ליה: רישא קרינא ביה ״וטבחו״ כולו באיסורא, סיפא לא קרינא ביה ״וטבחו״ כולו באיסורא.

Rav Naḥman said to him: In the first clause, where the father’s animal was stolen and slaughtered in his lifetime, I read about this case the verse: “If a man steal an ox or a sheep, and slaughter it” (Exodus 21:37), which indicates that the thief slaughtered the ox or the sheep entirely in a prohibited manner. In the latter clause, where the animal was slaughtered after the father’s death, I do not read about this case the verse: “And slaughter it,” which describes a slaughter that was performed entirely in a prohibited manner, because the animal already partially belonged to him, and his own portion of the ox was slaughtered in a permitted manner.

השוחט ונמצאת טריפה וכו׳. אמר ליה רב חביבי מחוזנאה לרב אשי: שמע מינה, אינה לשחיטה אלא לבסוף.

§ The mishna teaches: A thief who slaughters the animal but it was found to be a tereifa, and likewise a thief who slaughters a non-sacred animal in the Temple courtyard, pays the fourfold or fivefold payment. Rav Ḥavivi of Meḥoza said to Rav Ashi: Conclude from the mishna that the act of slaughtering is considered to have been performed only at the end of the slaughtering process.

דאי ישנה לשחיטה מתחילה ועד סוף, כיון דשחט בה פורתא – אסרה, אידך – לא דמריה קא טבח!

Rav Ḥavivi of Meḥoza explains: As, if you say that the act of slaughtering lasts from beginning to end, i.e., the halakhic ramifications of slaughtering are in effect throughout the process, one could raise a question with regard to the case of one who slaughters a non-sacred animal in the Temple courtyard: Once he slaughtered the animal a bit, at the very start of the act of slaughter, he has prohibited the animal, with regard to deriving benefit, as a non-sacred animal slaughtered in the Temple courtyard. When he slaughters the other part, it is already prohibited with regard to deriving benefit, which means that it is not an animal that belongs to its owner that he slaughters. Since deriving benefit from the animal is prohibited, it has no value; therefore, there is no ownership.

אמר ליה רב הונא בריה דרבא: כי קא מחייב – אההוא פורתא. אמר ליה רב אשי: לא תידחי[יה], ״וטבחו״ כולו בעינן – וליכא.

Rav Huna, son of Rava, said to Rav Ḥavivi in response: It is possible to explain the mishna even if one maintains that the halakhic ramifications of slaughtering are in effect throughout the slaughter. As, when does the thief become obligated to pay the fourfold or fivefold payment? It is when he performs that first bit of slaughter in the beginning, before the animal becomes forbidden. Rav Ashi said to Rav Huna: Do not dismiss Rav Ḥavivi’s objection with this explanation. The verse: “If a man steal an ox or a sheep, and slaughter it” (Exodus 21:37), indicates that to impose liability to pay the fourfold or fivefold payment we require that the thief slaughtered it completely, and after having slaughtered it just a bit there is no complete slaughter yet.

אלא קשיא! אמר ליה, הכי אמר רב גמדא משמיה דרבא: כגון ששחט מקצת סימנין בחוץ, וגמרן בפנים.

Rav Huna said to Rav Ashi: But if you are correct, the mishna is difficult according to the one who maintains that the halakhic ramifications of slaughtering are in effect throughout the slaughter. Rav Ashi said to Rav Huna: This is what Rav Gamda said in the name of Rava, concerning this question: The mishna is discussing a case where the thief slaughtered, i.e., severed, part of the two organs that must be severed in ritual slaughter, i.e., the trachea and the esophagus [simanin], outside the Temple, and finished slaughtering them inside the Temple. Therefore, the animal became prohibited with regard to deriving benefit only at the final stage of slaughter, concomitant with the liability to pay the fourfold or fivefold payment.

איכא דמתני לה אהא – אמר רבי שמעון משום דרבי לוי סבא: אינה לשחיטה אלא לבסוף. ורבי יוחנן אמר: ישנה לשחיטה מתחילה ועד סוף.

There are those who teach that the preceding exchange took place with regard to the following dispute: Rabbi Shimon ben Lakish says in the name of Rabbi Levi the Elder: The act of slaughtering is considered to have been performed only at the end of the slaughtering process. And Rabbi Yoḥanan says: The act of slaughtering lasts from beginning to end. Rav Ḥavivi of Meḥoza said to Rav Ashi: Shall we say that Rabbi Yoḥanan holds that the prohibition against deriving benefit from non-sacred animals that were slaughtered in the Temple courtyard is not by Torah law?

אמר ליה רב חביבי מחוזנאה לרב אשי, לימא קסבר רבי יוחנן: חולין שנשחטו בעזרה – לאו דאורייתא?

דאי סלקא דעתך דאורייתא, מכי שחיט לה פורתא – אסרה, אידך – לאו דמרה קא טבח!

As, if it enters your mind that it is prohibited by Torah law the mishna here would be difficult, for as soon as he slaughtered the animal a bit, at the very start of the act of slaughter, he has prohibited the animal, with regard to deriving benefit, as a non-sacred animal slaughtered in the Temple courtyard. When he slaughters the other part it is already prohibited with regard to deriving benefit, which means that it is not an animal that belongs to its owner that he slaughters.

אמר ליה רב אחא בריה דרבא: כי קא מחייב נמי – אההוא פורתא. אמר ליה רב אשי: לא תידחיה, ״וטבחו״ כולו בעינן – וליכא.

Rav Aḥa, son of Rava, said to Rav Ḥavivi: It is possible to explain the mishna even according to the opinion that the halakhic ramifications of slaughtering are in effect throughout the slaughter, and even if one maintains that it is prohibited by Torah law to benefit from a non-sacred animal slaughtered in the Temple. As, when does the thief become obligated to pay the fourfold or fivefold payment as well? It is when he performs that first bit of slaughter in the beginning, before the animal becomes forbidden. Rav Ashi said to Rav Huna: Do not dismiss Rav Ḥavivi’s suggestion with this explanation. The verse: “If a man steal an ox or a sheep, and slaughter it” (Exodus 21:37), indicates that in order to impose liability to pay the fourfold or fivefold payment we require that the thief slaughtered it completely, and after having slaughtered it just a bit there is no complete slaughter yet.

אלא קשיא! אמר ליה, הכי אמר רב גמדא משמיה דרבא: כי קא מחייב – כגון ששחט מקצת סימנין בחוץ, וגמרן בפנים.

Rav Huna said to Rav Ashi: But if you are correct, the mishna is difficult. Rav Ashi said to Rav Huna: This is what Rav Gamda said in the name of Rava: When does the mishna state that the thief is obligated to pay the fourfold or fivefold payment? It is in a case where the thief slaughtered part of the simanim outside the Temple, and finished slaughtering them inside the Temple. Therefore, the animal became prohibited with regard to deriving benefit only at the final stage of slaughter, concomitant with the liability to pay the fourfold or fivefold payment.

מתני׳ גנב על פי שנים, וטבח ומכר על פיהן, ונמצאו זוממים – משלמין הכל.

MISHNA: If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently slaughtered the animal or sold it, also based on the testimony of the same witnesses, and these witnesses were found to be conspiring witnesses, these witnesses pay everything, i.e., not only the principal amount but also the fourfold or fivefold payment. This is in accordance with the Torah’s decree with regard to conspiring witnesses: “You shall do to him as he had conspired to do to his brother” (Deuteronomy 19:19). Since these witnesses attempted to obligate the alleged thief to pay the fourfold or fivefold payment, they themselves must pay that full amount.

גנב על פי שנים, וטבח ומכר על פי שנים אחרים, אלו ואלו נמצאו זוממין – הראשונים משלמין תשלומי כפל, ואחרונים משלמין תשלומי שלשה.

With regard to one who stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently slaughtered the animal or sold it, based on the testimony of two other witnesses, if both these witnesses and those witnesses were found to be conspiring witnesses, the first set of witnesses, who testified about the theft of the animal, pay the alleged thief the double payment, which is what they had conspired to cause him to pay. And the last set of witnesses, who attested to the slaughter or sale of the animal, pay the alleged thief a twofold payment for a sheep or a threefold payment for an ox, which they had conspired to cause him to pay over and above the double payment.

נמצאו אחרונים זוממין – הוא משלם תשלומי כפל, והן משלמין תשלומי שלשה.

If only the witnesses in the last set were found to be conspiring witnesses, while the testimony about the theft remains intact, the thief pays the double payment to the animal’s owner and the second set of witnesses pay the alleged thief the twofold or threefold payment, the amount over and above the double payment, which is what they had conspired to cause him to pay.

אחד מן אחרונים זוממין – בטלה עדות שניה. אחד מן הראשונים זוממין – בטלה כל העדות; שאם אין גניבה – אין טביחה ואין מכירה.

If only one individual from the last set of witnesses was found to be a conspiring witness, the second testimony is nullified, as it was not submitted by two valid witnesses, whereas the first testimony remains intact. If one individual from the first set of witnesses is found to be a conspiring witness, the entire testimony concerning the thief is nullified. The reason is that if there is no theft established by reliable testimony there is no liability for slaughtering the animal and there is no liability for selling it.

גמ׳ איתמר: עד זומם – אביי אמר: למפרע הוא נפסל, רבא אמר: מכאן ולהבא הוא נפסל.

GEMARA: One who is rendered a conspiring witness is barred from providing testimony in the future. The Gemara cites a fundamental dispute with regard to this disqualification. It was stated concerning a conspiring witness: Abaye says: He is disqualified retroactively, from when he provided his testimony. Any testimony he may have provided after that point in time is retroactively nullified. Rava says: He is disqualified only from that point forward, i.e., from when he was established to be a conspiring witness, but not retroactively from when he provided his testimony.

אביי אמר למפרע הוא נפסל – מההוא שעתא דאסהיד הוה ליה רשע, והתורה אמרה: ״אל תשת רשע עד״.

The Gemara explains the reasons for the two opinions: Abaye says he is disqualified retroactively because it is from that time when he testified that he is considered a wicked man, and the Torah said: “Do not put your hand with the wicked to be an unrighteous witness” (Exodus 23:1), which is interpreted to mean: Do not allow a wicked man to serve as a witness.

רבא אמר מכאן ולהבא הוא נפסל – עד זומם חידוש הוא; דהא תרי ותרי נינהו – מאי חזית דציית[ת] להני? ציית להני!

Rava says that he is disqualified only from that point forward because the disqualification of a conspiring witness is a novelty, i.e., it is not based on logic. The reason is that this is a case of two witnesses against two other witnesses, in which case neither testimony should be accepted. What did you see that causes you to listen to the second set of witnesses, who testify that the first set were not at the scene of the purported event? You could instead listen to the first set of witnesses, who testify to the event, and disbelieve the second set. Yet the Torah teaches that the second set of witnesses is always deemed credible and the first set is subjected to punishment as conspiring witnesses.

הלכך אין לך בו אלא משעת חידוש ואילך.

Therefore, as the disqualification of the conspiring witnesses is an anomaly, you have the right to disqualify them only from the time of the novelty and onward, i.e., this counterintuitive disqualification is not applied retroactively.

איכא דאמרי: רבא נמי כאביי סבירא ליה, דאמר למפרע הוא נפסל; והכא היינו טעמיה דרבא –

There are those who say that Rava also holds like Abaye, who says that by rights a conspiring witness should be disqualified retroactively from when he provided his testimony, and here this is Rava’s reason for not disqualifying him retroactively: