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)

(a)Rav holds 'Modeh bi'K'nas ve'Achar-kach Ba'u Eidim, Patur'. What does Shmuel say?

(b)How does Rava bar Ahila'i extrapolate Rav's opinion from the Pasuk "Im Himatzei Simatzei"?

(c)How does he know that the Pasuk is not coming to teach us 'Modeh bi'K'nas Patur' (when no witnesses came afterwards)?

(d)What does Shmuel then learn from "Im Himatzei Simatzei"?

1)

(a)Rav holds 'Modeh bi'K'nas ve'Achar-kach Ba'u Eidim, Patur'. Shmuel says 'Chayav'.

(b)Rava bar Ahila'i extrapolates Rav's opinion from from the Pasuk "Im Himatzei Simatzei" 'Im Himatz'ei be'Eidim, Simatzei be'Dayanim'.

(c)The Pasuk cannot be coming to teach us 'Modeh bi'K'nas Patur' (when no witnesses came afterwards) because we already know that from the Pasuk "Asher Yarshi'un Elohim" ('ve'Lo Marshi'a es Atzmo').

(d)Shmuel learns from "Im Himatzei Simatzei" the 'K'lal u'P'rat u'K'lal' like Tana de'Bei Chizkiyahu (by a Ganav, as we learned earlier in the Perek).

2)

(a)The Beraisa discusses a case where a Ganav who saw witnesses about to appear in Beis-Din, quickly admitted that he had stolen a sheep but declared that he did not Shecht or sell it. On what grounds does the Tana exempt him even from Daled ve'Hey should the witnesses testify that he did in fact, Shecht or sell the animal?

(b)How does Shmuel initially attempt to reconcile his opinion with the Beraisa? How does he establish it?

(c)How do we disprove Shmuel's explanation from Rebbi Elazar b'Rebbi Shimon, who says 'Yavo'u Eidim ve'Ye'idu'? What must the Tana Kama therefore hold?

(d)How does ...

1. ... Shmuel finally vindicate himself?

2. ... Rav reconcile his opinion with Rebbi Elazar b'Rebbi Shimon?

2)

(a)The Beraisa discussing a case where a Ganav who saw witnesses about to appear in Beis-Din, quickly admitted that he had stolen a sheep but declared that he did not Shecht or sell it, exempts him even from Daled ve'Hey should the witnesses testify that he did in fact, Shecht or sell the animal because his admission exempts him from Kefel, and wherever there is no Kefel, there is Daled ve'Hey either (since the Torah writes "Arba'ah va'Chamishah" and not "Sheloshah ve'Arba'ah").

(b)Shmuel initially attempts to reconcile his opinion with the Beraisa by establishing it where the witnesses withdrew (otherwise, he maintains, the Ganav would have been Chayav to pay both Kefel and Daled ve'Hey.

(c)We disprove Shmuel's explanation from Rebbi Elazar b'Rebbi Shimon, who says 'Yavo'u Eidim ve'Ye'idu' in which case the Tana Kama must hold that even if they did testify, their testimony is not accepted, seeing as the Ganav had already confessed.

(d)

1. Shmuel finally vindicates himself by ruling like Rebbi Elazar b'Rebbi Shimon (who supports his opinion).

2. And Rav reconciles his opinion with Rebbi Elazar b'Rebbi Shimon by pointing out that the latter is speaking when the Ganav only confessed to his sin when he saw the witnesses on their way to Beis-Din, but ordinarily, even he would agree that in the event that the Ganav innocently confessed, he will be Patur even if witnesses subsequently corroborate his guilt.

3)

(a)What distinction does Rav Hamnuna, commenting on Rav's Din, draw between a case where the Ganav confesses to having stolen before the witnesses arrived, and one where he denies that he stole, but where, after the witnesses obligate him to pay the Keren and Kefel, he admits that he Shechted or sold the animal before the witnesses corroborate it?

(b)What is the reason for this distinction? Why might we not say 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim Patur', in the latter case?

(c)How did Rava, based on Rav Chisda's Kashya to Rav Huna from the Beraisa of Raban Gamliel and Tavi (which we cited earlier), prove Saba de'Bei Rav wrong? Who is Saba de'Bei Rav?

(d)What did Rebbi Chiya bar Aba Amar Rebbi Yochanan say on the subject?

3)

(a)Rav Hamnuna, commenting on Rav's Din, draws a distinction between a case where the Ganav confesses to having stolen before the witnesses arrived, and one where he denies that he stole, but where, after the witnesses obligate him to pay the Keren and Kefel, he admits that he Shechted or sold the animal before witnesses corroborated it in which case Rav will concede that Modeh bi'Knas ve'Achar-Kach Ba'u Eidim Chayav'.

(b)The reason for this distinction is that we might only say 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim Patur', when his confession obligates him to pay at least the Keren (in which case it is sincere); whereas there where it costs him nothing, he is obviously confessing purely in order to become exempt from paying.

(c)Rava however, proves Saba de'Bei Rav (alias Rav Hamnuna) wrong, from the fact that Rav Chisda asked Rav Huna on Rav from the Beraisa of Raban Gamliel and Tavi (that we cited earlier), even though Raban Gamliel confession was confined to a K'nas, which in no way obligated him to pay any Keren, and Rav Huna there agreed with his Kashya on principle.

(d)Rebbi Chiya bar Aba Amar Rebbi Yochanan agrees entirely with Rav Hamnuna (despite Rava's Kashya).

4)

(a)What did we learn above from the fact that the Tana added the case ''Ganav al-Pi Sh'nayim ve'Tavach u'Machar al-Pi Eid Echad O al-Pi Atzmo, Meshalem Kefel ve'Eino Meshalem Daled ve'Hey'?

(b)What does Rav Ashi now extrapolate from the fact that the Beraisa presents the case of 'Ganav al-Pi Shenayim ve'Tavach u'Machar al-Pi Echad ... ', rather than 'Ganav ve'Tavach u'Machar al-Pi Eid Echad ... '?

(c)Rav Ashi also tries to prove Rav Hamnuna right from the Beraisa that we quoted earlier 'Ra'ah Eidim she'Memashmeshin u'Bo'in ve'Amar Ganavti Aval Lo Tavachti u'Macharti, Eino Meshalem Ela Keren'. How does Rav Ashi's attempt to support Rav Hamnuna from there?

(d)How do we refute Rav Ashi's proof from the Beraisa? Why else might the Tana present the case of 'Ganavti Aval Lo Tavachti ... ', rather than 'Lo Ganavti ... ve'Chazar ve'Amar Tavachti u'Macharti'?

4)

(a)We learned above from the fact that the Tana added the case ''Ganav al-Pi Shenayim ve'Tavach u'Machar al-Pi Eid Echad O al-Pi Atzmo, Meshalem Kefel ve'Eino Meshalem Daled ve'Hey' that 'Modeh bi'K'nas ve'Achar Ba'u Eidim, Chayav' (because of 'al-Pi Eid Echad Dumya de'al-Pi Atzmo' as we explained there).

(b)Rav Ashi extrapolates from the fact that the Beraisa presents the case of 'Ganav al-Pi Shenayim ve'Tavach u'Machar al-Pi Echad ... ' rather than 'Ganav ve'Tavach u'Machar al-Pi Eid Echad ... ' that we only Darshen 'al-Pi Eid Echad Dumya de'al-Pi Atzmo' in this case, where the Ganav did not even obligate himself to pay the Keren. But that, there where he did, the Tana will concede that 'Modesh bi'K'nas ve'Achar Ba'u Eidim, Patur' (like Rav Hamnuna).

(c)Rav Ashi also tries to prove Rav Hamnuna right from the Beraisa that we quoted earlier 'Ra'ah Eidim she'Memashmeshin u'Bo'in ve'Amar Ganavti Aval Lo Tavachti u'Macharti, Eino Meshalem Ela Keren' which appears to exempt him from Daled ve'Hey only because he at least confessed to the theft, thereby obligating himself to pay the Keren.

(d)We refute the proof from the Beraisa on the grounds that the reason the Tana made a point of presenting the case in this way is to teach us that, even though the Ganav did not deny Shechting or selling the cow, he is nevertheless Patur from Daled ve'Hey because, having confessed to having stolen it, he is Patur from Kefel (as we explained earlier), and wherever there is no Kefel, there is no Daled ve'Hey.

75b----------------------------------------75b

5)

(a)The Tana Kama of a Beraisa discusses a case where two separate pairs of witnesses testify that someone stole and Shechted or sold an animal. What do they rule in a case where ...

1. ... the first pair of witnesses became Zomemin? Who pays Daled ve'Hey?

2. ... the second pair of witnesses became Zomemin? Who pays Kefel and who pays Daled ve'Hey?

(b)Sumchus says 'Hein Meshalmin Kefel ve'Hu Meshalem Tashlumei Sheloshah le'Par ... '. Why is it impossible to establish Sumchus either on the Reisha or on the Seifa of the Beraisa, as it stands?

(c)So we establish the Machlokes when the Ganav conceded to the first witnesses that he had stolen the animal (as well as having Shechted or sold it), but not in their presence, and he promptly brought witnesses who declared them Zomemin. The owner however, then brought a second set of witnesses. What did they testify?

(d)How do we initially establish the Machlokes Tana'im? Why ...

1. ... do the Rabbanan exempt the Ganav from Daled ve'Hey?

2. ... does Sumchus obligate him to pay?

5)

(a)The Tana Kama of a Beraisa discusses a case where two separate pairs of witnesses testify that someone stole and Shechted or sold an animal. In a case where ...

1. ... the first pair of witnesses became Zomemin nobody pays Daled ve'Hey since there is no Kefel (as we just learned).

2. ... the second pair of witnesses became Zomemin the Ganav pays Kefel, and the Zomemin pay Daled ve'Hey to the 'Ganav'.

(b)Sumchus says 'Hein Meshalmin Kefel ve'Hu Meshalem Tashlumei Sheloshah le'Par ... '. It is impossible to establish Sumchus either on the Reisha or on the Seifa of the Beraisa, as it stands because both rulings of the Tana Kama are clear-cut and unarguable.

(c)So we establish the Machlokes when the Ganav conceded to the first witnesses that he had stolen the animal (as well as having Shechted or sold it), but not in their presence, and he promptly brought witnesses who declared them Zomemin. The owner however, then brought a second set of witnesses who testified that the Ganav did indeed steal the animal and Shecht or sell it.

(d)We initially connect the Machlokes Tana'im to the previous ruling of Rebbi Chiya bar Aba Amar Rebbi Yochanan (who renders Chayav 'Modeh bi'K'nas ve'Achar-Kach Ba'u Eidim' there where the Ganav did not obligate himself to pay anything through his admission (as is the case here, seeing as he only admitted on account of the first witnesses, who had currently obligated him to pay Kefel anyway). Consequently ...

1. ... Sumchus obligates him to pay because Rebbi Yochanan in fact, follows his opinion, whereas ...

2. ... the Rabbanan exempt the Ganav from Daled ve'Hey because they disagree with Rebbi Yochanan's S'vara.

6)

(a)Rav Acha Brei de'Rav Ika rejects this suggestion however. According to him, both Tana'im hold that in the above case he would be Chayav to pay Daled ve'Hey. Why is that?

(b)And he establishes their Machlokes where the Ganav concedes to the first pair of witnesses that he stole (as well as having Shechted ... ), though not in front of them, but in front of other witnesses. Then he subsequently brings witnesses who declare the first witnesses Zomemin, and the second pair of witnesses turn up and corroborat his confession. What is the radical difference between this case and the previous one (which serves as the basis of the Machlokes Tana'im)?

(c)What is now the reason of ...

1. ... the Tana Kama, who absolves the Ganav from Daled ve'Hey?

2. ... Sumchus, who obligates him to pay?

(d)How will this also affect who becomes the recipient of the Kefel?

6)

(a)Rav Acha Brei de'Rav Ika rejects this suggestion however. According to him, both Tana'im will hold that in the above case, he would be Chayav to pay Daled ve'Hey because, in his opinion, both Tana'im hold like Rebbi Yochanan.

(b)And he establishes their Machlokes where the Ganav concedes to the first pair of witnesses that he stole (as well as having Shechted ... ), though not in front of them, but in front of other witnesses. Then he subsequently brings witnesses who declare the first witnesses Zomemin, and the second pair of witnesses turn up and corroborat his confession. The radical difference between this case and the previous one (which serves as the basis of the Machlokes Tana'im) is that in this case, the second pair of witnesses cannot become Zomemin (seeing as the defendant himself has specifically validated their testimony).

(c)The reason of ...

1. ... the Tana Kama, who absolves the Ganav from Daled ve'Hey is based on the principle 'Eidus she'I Atah Yachol le'Hazimah, Lo Havya Eidus' (thereby renderring the second set of witnesses Pasul).

2. ... Sumchus, who obligates him to pay is because he holds 'Eidus she'I Atah Yachol le'Hazimah, Havya Eidus'.

(d)This also affects who becomes the recipient of the Kefel because according to the Tana Kama, the first witnesses pay Kefel to the Ganav; whereas according to Sumchus, they pay to the owner (in place of the Ganav).

7)

(a)How do we reconcile Sumchus' ruling with the fact that it is unanimously accepted that 'Eidus she'I Atah Yachol le'Hazimah, Lo Havya Eidus'?

(b)What is the problem with Sumchus' statement 'Hein Meshalmin Tashlumei Kefel', bearing in mind that the Ganav himself admitted to having stolen the animal?

(c)How do we therefore amend this statement?

7)

(a)We reconcile Sumchus' ruling with the fact that it is unanimously accepted that 'Eidus she'I Atah Yachol le'Hazimah, Lo Havya Eidus' by restricting the latter ruling to a case where the witnesses omitted basic details from their testimony, casting suspicion on their reliability, whereas in our case, the fact that they cannot become Zomemin is because they have the support of the defendant, which if anything, proves the veracity of their testimony.

(b)The problem with Sumchus' statement 'Hein Meshalmin Tashlumei Kefel' is why the Zomemin should pay the principle, seeing as the Ganav himself admitted to having stolen the animal, so that their testimony did not caused him to lose that.

(c)We therefore amend the statement to read 'Hein Meshalmin Tashlum de'Kefel' (meaning the completion of the Kefel (besides the principle, which the Ganav himself pays).

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