BAVA KAMA 74 (16 Adar) - dedicated by Avi Berger of in memory of his father, Reb Pinchas ben Reb Avraham Yitzchak, on the day of his Yahrzeit.

[74 - 37 lines; 74b - 48 lines]



Witnesses testify that someone did something for which he is Chayav Misah, and then those witnesses are contradicted by a second group of witnesses, and then a third group of witnesses prove that the testimony of the first group is false through "Hazamah" (that is, they do not contradict any of the facts that the first group says, but rather they testify that the first group was with them in a different place and a different time). Rebbi Yochanan and Rebbi Elazar argue whether or not witnesses who are first contradicted and then found to be false through "Hazamah" are punished like normal Edim Zomemim and are killed (since they tried to cause the defendant to be killed).

2)[line 18]תסתייםTISTAYEM- conclude

3)[line 20]עדים שהוכחשו בנפש לוקיןEDIM SHE'HUKCHESU B'NEFESH LOKIN- witnesses who testify that someone did something for which he is Chayav Misah, and then those witnesses are contradicted by a second group of witnesses (who contradict the details of their testimony, but do not make them into Edim Zomemim), are punished with Malkus. This is because they transgressed the Isur d'Oraisa of "Lo Sa'aneh" (Devarim 5:17).

4)[line 22]וכל לאו שניתן לאזהרת מיתת ב''ד אין לוקין עליוV'KOL LAV SHE'NITAN L'AZHARAS MISAS BEIS DIN, EIN LOKIN ALAV

(a)A person is punished with 39 lashes (Malkos) when he transgresses negative commandments of the Torah, with certain exceptions.

(b)One category of negative commandments for which one is not given Malkos is "Lav she'Nitan l'Azharas Misas Beis Din" ("a negative commandment that was given as a warning for capital punishment"). The Torah only prescribes capital punishment after writing a specific prohibition not to do a certain act. In such cases, the negative commandment is only written as a prerequisite for administering capital punishment, and not to give the offender Malkos. Therefore, when a person does a capital offense and is warned that he will incur Malkos, he is neither executed nor given Malkos.


Any payment that involves over-compensation for a monetary loss is considered a "Kenas" (penalty) rather than "Mamon" (compensation). In every case of Kenas, the liable party does not have to pay the Kenas if he admits to his guilt of his own accord. Only if witnesses testify to his guilt in court must he pay. If he admits to his guilt of his own accord, and later witnesses testify to his guilt in court, the Amora'im argue as to whether or not he must pay the Kenas (Bava Kama 74b-75a - he is exempted from payment, according to the lenient opinion, only if his admission took place under specific circumstances). Until one is obligated to pay a Kenas in court, he is fully exempt from payment and does not even have a moral obligation to pay it on his own accord (RASHBA to Bava Kama 74b, see also RAMBAN in Milchamos HaSh-m at the end of the third Perek of Kesuvos).