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BAVA KAMA 74

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PAST DEDICATION
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.

SUMMARY

The Beraisa states if two witnesses testify that the master knocked out the tooth of his servant and subsequently knocked out his eye they must pay the value of the eye to the master.
 
Abaye explains the Beraisa that after the first two witnesses testified that his tooth was knocked out before his eye was knocked out two other witnesses were Mazim them and they said that the opposite occurred that his eye was knocked out first and there was a Gmar Din the Eidim Zomemim must pay the value of the eye to the master. (1)
 
Rava explains the Beraisa that the first two witnesses testified that his tooth was knocked out and than his eye and the next two witnesses testified that first his eye was knocked out and than his tooth and than another pair of witnesses were Mazim the first pair even though the first pair of witnesses were contradicted by the second pair they pay the value of the eye to the master. (2)
 
If a master knocks out the tooth of his servant and than knocks out his eye the servant goes free when his tooth is knocked out and the master must pay the value of the eye to the servant.
 
If witnesses testify that someone stole and Shechted or sold an animal and they turned out to be Zomemim they must pay four or five. (3)
 
If witnesses testify that someone is Chayav Misah and they are contradicted and than they become Zomemim R. Yochanan holds they are Chayav Misah and R. Elazar holds they are Patur.
 
R. Elazar says if witnesses testify that a person committed a murder and they are contradicted by other witnesses they are Chayav Malkus if the alleged murder victim walks into Beis Din.
 
According to R. Yochanan witnesses who are contradicted and not Chayav Malkus because he holds that if they subsequently become Zomemim they are Chayav Misah and therefore it is a Lav that leads to a Chiyuv Misah.
 
If two witnesses testify that someone stole an animal and one witness testifies or the Ganav admits that he Shechted or sold the animal he pays Kefel, but not four or five. (4)
 
If someone steals an animal and Slaughters it on Shabbos or Slaughters it for an Avodah Zarah he pays Kefel but not four or five.
 
If someone steals from his father and Slaughters it or sells it after the death of his father or if someone steals and is Makdish it and than he Slaughters it or sells it he pays Kefel but not four or five.

A BIT MORE

1. The Eidim Zomemim must pay the value of the eye to the master because their testimony would have cost him the value of his eye. However, if the Eidim Zomemim testified prior to the Gmar Din they must pay the entire value of the servant to the master because at the time of their testimony he was not yet Chayav.
 
2. Rava holds that contradiction is the beginning of Hazamah and therefore even though the first pair of witnesses were contradicted by the second pair prior to becoming Zomemim they must pay the master the value of the eye that they were trying to cost him.
 
3. According to the opinion that contradiction is not the beginning of the Hazamah the witnesses were Nizam on the Tevichah first and than they were Nizam on the Geneivah because if they were Nizam on the Geneivah first the Eidus on the Tevichah would have been contradicted.
 
4. He is Patur if he admits that he Shechted it because the Chiyuv of four or five is a Knas and someone who admits a Knas is Patur.

BRIEF INSIGHT

SHEVU'AS ED ECHAD
 
If two witnesses testify that someone stole an animal and one witness testifies that he Shechted or sold the animal he pays Kefel, but not four or five. Even though a person is Chayav to swear if one witness testifies against him and in this case he will not be allowed to swear because he is Pasul as two witnesses testified that he is a Ganav and since he can't swear why doesn't the Nigzal swear and take the four or five? R. Akiva Eiger answers that when a witness testifies that someone is Chayav a Knas it does not obligate someone to swear.

QUICK HALACHAH

CHULIN IN THE AZARAH
 
Any Lav without a Ma'aseh is not punished with Malkus except for someone who swear, makes a Temurah and cursing a friend with the Shem of Hashem. Any Lav that is leads to a Misas Beis Din for example Lo Tinaf, or Lo Ta'aseh Melachah b'Shabbos is not punished with Malkus. Any Lav that leads to a payment such as Lo Sigzol or Lo Signov is not punished with Malkus. (Rambam Hilchos Sanhedrin 18:2)

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