BAVA KAMA 75 (9 Av) - The Daf for Tisha b'Av this year has been dedicated by Mrs. Gitti Kornfeld in memory of her father, Reb Yisrael Shimon ben Shlomo ha'Levi Turkel, whose Yahrzeit is on 10 Av.
1) THE EXTENT OF THE EXEMPTION OF "MODEH B'KENAS"
QUESTION: The Beraisa relates that when Raban Gamliel admitted that he blinded the eye of Tevi his servant and thus rejoiced because he thereby was able to set Tevi free, Rebbi Yehoshua responded to him, "Your words are meaningless, since you have admitted." That is, since one who admits to a Kenas is exempt from paying the Kenas ("Modeh b'Kenas Patur"), Raban Gamliel was exempt from setting free his servant.
Why was Raban Gamliel not able to set his servant free on the basis of having blinded his eye? Although one who admits to a Kenas is exempt from paying, that does not mean that one is not allowed to pay the Kenas. There still should be an obligation to pay the Kenas to fulfill one's duty b'Yedei Shamayim! Why did Rebbi Yehoshua say that Raban Gamliel's words "meaningless"?
ANSWER: The RASHBA (in the name of the Yerushalmi) and many other Rishonim prove from here that the rule of "Modeh b'Kenas Patur" exempts a person entirely. There is no obligation whatsoever, even b'Yedei Shamayim, to pay the Kenas.
How exactly does one's admission exempt him entirely, even b'Yedei Shamayim?
The straightforward understanding is that in a case of an ordinary monetary obligation (such as when a person damaged the property of another person and is obligated to pay for it), the obligation takes effect at the moment the damage is done. Witnesses are not necessary to create the obligation itself; the person's act of damaging his friend's property is what obligates him to pay for it. The purpose of the testimony of witnesses in court is merely to serve as proof, to assert that the incident actually occurred (as the Gemara in Kidushin (65b) says, "The purpose of witnesses is only to prevent lies from being said"). Even without witnesses, and even where Beis Din does not have the ability to force him to pay, there is an essential obligation for the person to pay (at least b'Yedei Shamayim) for the damages he caused.
A Kenas (penalty) is different. There is no obligation at all to pay the Kenas before Beis Din has declared that the person is obligated to pay it. The Kenas is not a natural result of the action the person did; the obligation of the Kenas comes about only when Beis Din issues a ruling that requires a Kenas to be paid. The Kenas is entirely created by the testimony of witnesses in Beis Din, and not by the act that the person did. Therefore, when no verdict was issued in Beis Din requiring the person to pay a Kenas, there is no inherent obligation -- even b'Yedei Shamayim -- to pay it. (See REBBI AKIVA EIGER in Gilyon ha'Shas to Makos 5a.)
2) WITNESSES WHO COME AFTER A PERSON ADMITS TO A "KENAS"
OPINIONS: One who admits to a Kenas is exempt from paying the Kenas ("Modeh b'Kenas Patur"). Rav and Shmuel disagree about whether one remains exempt when, after he admits to the Kenas, witnesses come and testify that they saw the act. Rav rules that he remains exempt.
Does Rav's ruling apply only in the Beis Din in which the person admitted to the Kenas, or does it apply even when the witnesses go to a second Beis Din and testify there that the person is obligated to pay a Kenas?
(a) The KETZOS HA'CHOSHEN (350:2) proposes, based on a number of proofs, that the exemption that one's own admission creates applies only in the Beis Din in which he admits. If witnesses come to a different Beis Din in which he did not admit, that second Beis Din indeed may obligate him to pay the Kenas. The Ketzos ha'Choshen writes that the reason for this is that the exemption of one who admits to a Kenas does not automatically cancel the act that was done or the obligation that depended on the testimony of witnesses. Rather, it just creates an exemption that prevents the Beis Din from obligating him to pay, since the obligation must come about through witnesses who declare his guilt and not through his own declaration of guilt ("Marshi'a Es Atzmo"). The second Beis Din, in which he did not declare his guilt and which knows about his guilt from the witnesses and not from him, is able to obligate him to pay.
(b) The TERUMAS HA'KRI (#1, as cited by the Ketzos ha'Choshen) maintains that according to Rav, when a person admits to a Kenas in one Beis Din, he no longer can be obligated to pay even if witnesses testify in a different Beis Din.
This argument apparently depends on the way in which "Modeh b'Kenas" functions to exempt a person from the obligation to pay a Kenas. There are two possible ways in which "Modeh b'Kenas" may function. The first way is that the person's admission exempts him from the obligation of the Kenas. The second way is that the person's admission prevents the obligation from taking effect in the first place (and not that it takes effect to some degree and he then becomes exempt from it through his admission).
The Terumas ha'Kri seems to understand that "Modeh b'Kenas" exempts the person. Hence, once he has exempted himself from the Kenas, it is no longer possible to make him obligated.
The Ketzos ha'Choshen understands that once a person has admitted to a Kenas, Beis Din cannot obligate him to pay. However, another Beis Din -- in which he did not admit -- may obligate him to pay since his admission in the first Beis Din did not create an exemption from the Kenas but merely prevented the Beis Din from obligating him. (See CHIDUSHEI HA'GAON RAV NAFTALI TROP, #125, who writes that the basis for the view of the Ketzos may be found in the words of the RA'AVAD in SEFER HA'ZECHUS, and in the RAMBAN there.)
3) WITNESSES WHO CANNOT BE MADE INTO "EDIM ZOMEMIM"
QUESTION: The Gemara says that the Rabanan and Sumchus disagree about "Edus she'Iy Atah Yachol l'Hazimah" -- testimony which cannot be proven to be false through "Hazamah." The Rabanan rule that any testimony of witnesses which does not allow for the possibility of being proven false through "Hazamah" is not valid testimony. Sumchus rules that this applies only when details of the testimony are not available (such as the day and hour at which the event took place), but not in this case where the witnesses cannot be made into Edim Zomemim because their testimony is obviously true (since the Ganav himself admits to it) and they are merely supporting the claim of the Ganav.
Why do the Rabanan and Sumchus disagree? What is the underlying point of their dispute?
ANSWER: To understand the dispute, it is first necessary to explore why "Edus she'Iy Atah Yachol l'Hazimah" is not valid testimony. There are two ways to understand why such testimony is not valid. The first way is that it is a Gezeiras ha'Kasuv -- the Torah dictates that such Edus is not valid. Just as the Torah gives other guidelines with regard to Edus (for example, that the testimony of certain people, such as relatives, is invalid), the Torah also states that "Edus she'Iy Atah Yachol l'Hazimah" is not valid. The second way of understanding this principle is that it is logical: if the witnesses know that they cannot be made into Edim Zomemim and will not face that punishment if found to be lying, they will not have that extra incentive to tell the truth, and thus there is a greater fear that they are lying.
The Rabanan perhaps maintain that "Edus she'Iy Atah Yachol l'Hazimah" is invalid testimony just like the testimony of any other invalid witness -- it is a Gezeiras ha'Kasuv. Just as the testimony of even the greatest Tzadik for his relative, like Moshe Rabeinu for his brother Aharon, is invalid, any Edus which cannot be found to be false through "Hazamah" is invalid. In contrast, Sumchus maintains that the basis for this principle is logical -- there is greater concern that the witnesses are lying when there is no way to prove their testimony false. Hence, in this case, where it is known that they are not lying (because the Ganav himself admits), their testimony is accepted even though it cannot be proven false through "Hazamah." (I. Alsheich. See also Insights to Bava Kama 84:1.)
4) "EDUS SHE'IY ATAH YACHOL L'HAZIMAH" AND MONETARY MATTERS
OPINIONS: The Gemara discusses the principle of "Edus she'Iy Atah Yachol l'Hazimah" -- any testimony of witnesses which cannot be proven false through "Hazamah" is not valid testimony. The Poskim disagree about whether this principle applies to testimony about monetary matters.
(a) The SHACH (CM 32) proves from the Gemara here that this principle does apply to testimony about monetary matters, as the Gemara itself is discussing matters of monetary payment.
(b) The PNEI YEHOSHUA (Kuntrus Acharon, Kesuvos 21b, #68 DH Amnam) and the NODA B'YEHUDAH (EH 1:72, DH ha'Klal) refute the Shach's proof from the Gemara here. (The Pnei Yehoshua asserts that the words of a number of Rishonim -- including the ITUR, RAMBAM, NIMUKEI YOSEF, RIVASH, and HA'SAR MI'KUTZI -- imply that they maintain that "Edus she'Iy Atah Yachol l'Hazimah Lo Havi Edus" does not apply to testimony about monetary matters.) They explain that the reason behind the view that this principle does not apply to testimony about monetary matters is that such testimony does not require "Derishah" and "Chakirah" (comprehensive interrogation; the Rabanan suspended the necessity for "Derishah" and "Chakirah" in testimony about monetary matters in order that lenders not stop lending money in fear that their witnesses will not be able to pass the requirements of "Derishah" and "Chakirah"). Obviously, where there is no requirement for "Derishah" and "Chakirah" -- procedures which establish many of the specific details of the testimony -- the details of the testimony cannot be proven false through "Hazamah" since those details are not necessary, and yet such testimony still is accepted.
This reasoning, however, applies only to testimony about ordinary monetary matters. The Gemara here discusses testimony about penalties (Kefel and Arba'ah v'Chamishah). Testimony about a penalty does require "Derishah v'Chakirah," as the Gemara in Sanhedrin states. Accordingly, it is possible to make such witnesses into Edim Zomemim, and thus "Edus she'Iy Atah Yachol l'Hazimah" is invalid testimony.
The Shach himself addresses this question on his opinion. He explains that although the Gemara discusses testimony about a Kenas, it is unlikely that when the Gemara says that "Edus she'Iy Atah Yachol l'Hazimah" is invalid testimony that it refers only to testimony about a Kenas. The Gemara implies that this principle applies to testimony about all types of monetary matters.
The Pnei Yehoshua says that this is not a question since, mid'Oraisa, all forms of testimony, even for monetary matters, must be "Edus she'Iy Atah Yachol l'Hazimah," and the only reason why Edus about monetary matters does not need to be "Edus she'Iy Atah Yachol l'Hazimah" is because of the Takanas Chachamim. Hence, the Gemara is saying that this principle applies to all forms of testimony except in cases where the Chachamim decreed that it not apply.