Bava Kamma 75a

שֶׁלֹּא בְּבֵית דִּין הֲוָה קָאֵי.

The Gemara answers: Nevertheless, Rabbi Yehoshua was not present in court when Rabban Gamliel encountered him.

וְהָתַנְיָא, אָמַר לוֹ: אֵין בִּדְבָרֶיךָ כְּלוּם, שֶׁכְּבָר הוֹדִיתָ,

The Gemara asks a question from a different source: But isn’t it taught in a baraita that Rabbi Yehoshua said to Rabban Gamliel: Your statement is nothing, as you have already admitted to inflicting the injury yourself? This indicates that even if witnesses would subsequently testify about the injury, Rabban Gamliel would not emancipate Tavi.

מַאי, לָאו תַּנָּאֵי הִיא – הַאי תַּנָּא דְּאָמַר ״שֶׁכְּבָר אֵין לְךָ עֵדִים״, סָבַר: מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – חַיָּיב; וְהַאי תַּנָּא דְּאָמַר ״שֶׁכְּבָר הוֹדִיתָ״, סָבַר: מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – פָּטוּר?

The Gemara suggests: What, is it not the case that the difference between these two baraitot is a dispute between tanna’im ? This tanna of the first baraita , who says that Rabbi Yehoshua’s statement was: As you have no witnesses, holds that one who admits that he is liable to pay a fine is liable to pay the fine if afterward witnesses come and testify to his liability. And that tanna of the second baraita , who says that Rabbi Yehoshua’s statement was: As you have already admitted, holds that one who admits that he is liable to pay a fine is exempt from payment, even if afterward witnesses come and testify to his liability.

לָא; דְּכוּלֵּי עָלְמָא, מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – פָּטוּר; וּבְהָא קָמִיפַּלְגִי – הַאי תַּנָּא דְּאָמַר ״שֶׁכְּבָר אֵין לְךָ עֵדִים״, סָבַר: חוּץ לְבֵית דִּין הֲוָה. וְהָךְ תַּנָּא דְּאָמַר ״שֶׁכְּבָר הוֹדִיתָ״, סָבַר: בְּבֵית דִּין הֲוָה.

The Gemara rejects this suggestion: No; it is possible to understand the baraitot differently. Everyone agrees that one who admits he is liable to pay a fine is exempt, even if afterward witnesses come and testify to his liability. And they disagree with regard to the following: This tanna , who says that Rabbi Yehoshua said: As you have no witnesses, holds that Rabbi Yehoshua was outside the court when Rabban Gamliel encountered him, and therefore his admission is disregarded. And that tanna , who says that Rabbi Yehoshua said: As you have already admitted, holds that Rabbi Yehoshua was in the court when Rabban Gamliel met him, so Rabban Gamliel’s admission is a valid admission.

אִיתְּמַר: מוֹדֶה בִּקְנָס, וְאַחַר כָּךְ בָּאוּ עֵדִים – רַב אָמַר: פָּטוּר, וּשְׁמוּאֵל אָמַר: חַיָּיב.

The Gemara analyzes in detail the dispute alluded to above: It was stated with regard to one who admits that he is liable to pay a fine, and afterward witnesses come and testify to his liability, that Rav says he is exempt, and Shmuel says he is liable.

אָמַר רָבָא בַּר אֲהִילַאי: מַאי טַעְמָא דְּרַב? ״אִם הִמָּצֵא״ – בְּעֵדִים, ״תִמָּצֵא״ – בְּדַיָּינִין; פְּרָט לְמַרְשִׁיעַ אֶת עַצְמוֹ.

Rava bar Ahilai said: What is the reason for the ruling of Rav? With regard to theft, which is subject to a fine of double payment, the Torah states: “If the theft shall be found in his possession alive, whether it is an ox, or a donkey, or a sheep, he shall pay double” (Exodus 22:3). The verb for “shall be found” is doubled, as the verse states “ himmatze timmatze .” Rav derives from the repetition that there are two matters that are found: The double payment is imposed only if it is found [ himmatze ], i.e., it is revealed that he stole the item, through the testimony of witnesses, and the theft is found [ timmatze ], as determined through judges. This excludes one who incriminates himself through his own admission.

לְמָה לִי? מֵ״אֲשֶׁר יַרְשִׁיעֻן״ נָפְקָא! אֶלָּא שְׁמַע מִינַּהּ, מוֹדֶה בִּקְנָס וְאַחַר כָּךְ בָּאוּ עֵדִים – פָּטוּר!

Rav asks: But why do I need the Torah to teach this here? This principle is already derived from a different source: “The one whom the judges convict shall pay double to his neighbor” (Exodus 22:8), which indicates that self-incrimination is insufficient to render one liable for double payment. Rather, conclude from the fact that there are two verses to serve as the source for this principle that one who admits he is liable to pay a fine is exempt from paying even if afterward witnesses come and testify to his liability. The second verse teaches this additional novelty.

וּשְׁמוּאֵל אָמַר לָךְ: הָהוּא מִבְּעֵי לֵיהּ לְגַנָּב עַצְמוֹ, כִּדְתָנָא דְּבֵי חִזְקִיָּה.

And Shmuel would explain the double expression differently. He could have said to you: That verse is necessary to teach that a thief himself must pay double payment, i.e., the double payment is imposed not only upon a bailee who takes a false oath that the article entrusted to him was stolen, but it is also imposed upon a thief, as the school of Ḥizkiyya taught earlier in this chapter (63b).

אֵיתִיבֵיהּ רַב לִשְׁמוּאֵל: רָאָה עֵדִים שֶׁמְּמַשְׁמְשִׁים וּבָאִים, וְאָמַר: ״גָּנַבְתִּי, אֲבָל לֹא טָבַחְתִּי וְלֹא מָכַרְתִּי״ – אֵינוֹ מְשַׁלֵּם אֶלָּא קֶרֶן! אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁחָזְרוּ עֵדִים לַאֲחוֹרֵיהֶם.

Rav raised an objection to Shmuel from the following baraita : If a thief saw witnesses who were approaching with the intent to testify against him, and at that point he said: I admit that I stole an animal, but I did not slaughter or sell it, he pays only the principal. This indicates that even if those witnesses subsequently testify, the thief remains exempt from the double payment as well as the fourfold or fivefold payment. Shmuel said to him in response: With what are we dealing here in this baraita ? With a case where the witnesses returned back, i.e., ultimately they did not testify.

וְהָא מִדְּתָנֵי סֵיפָא, רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן אוֹמֵר: יָבוֹאוּ עֵדִים וְיָעִידוּ; מִכְּלָל דְּתַנָּא קַמָּא סָבַר: לָא!

Rav raised an objection: But this interpretation is impossible, as can be seen from the fact that the latter clause of the baraita teaches: Rabbi Elazar, son of Rabbi Shimon, says: Let the witnesses come and testify. This means that their testimony will be accepted and the thief will be required to pay the relevant fines. By inference it may be deduced that the first tanna holds that no, there is no point in the witnesses testifying, as the thief will be exempt in any case.

אֲמַר לֵיהּ שְׁמוּאֵל: לָאו אִיכָּא רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן דְּקָאֵי כְּווֹתִי? אֲנָא דַּאֲמַרִי – כְּרַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן.

Shmuel said to Rav: Isn’t there the opinion of Rabbi Elazar, son of Rabbi Shimon, which stands in accordance with my opinion? When I said that one who admits that he is liable to pay a fine and afterward witnesses testified that he committed that act is deemed liable, I said this ruling in accordance with the opinion of Rabbi Elazar, son of Rabbi Shimon.

לִשְׁמוּאֵל וַדַּאי תַּנָּאֵי הִיא; לְרַב מִי לֵימָא תַּנָּאֵי הִיא?

The Gemara comments: According to Shmuel, his opinion on this matter is certainly subject to a dispute between tanna’im , as he himself was forced to admit that his opinion is in accordance only with the opinion of Rabbi Elazar, son of Rabbi Shimon, not that of the first tanna of the baraita . But according to Rav, shall we say that his opinion too is necessarily subject to this dispute between tanna’im ?

אָמַר לְךָ רַב: אֲנָא דַּאֲמַרִי – אֲפִילּוּ לְרַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן; עַד כָּאן לָא קָאָמַר רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן הָתָם, אֶלָּא מִשּׁוּם דְּקָא מוֹדֵי מֵחֲמַת בִּיעֲתוּתָא דְעֵדִים; אֲבָל הָכָא, דְּמוֹדֶה מֵעַצְמוֹ – אֲפִילּוּ רַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן מוֹדֶה.

The Gemara explains: Rav could have said to you: I say my opinion in accordance with the rulings of both tanna’im of the baraita , even according to the opinion of Rabbi Elazar, son of Rabbi Shimon. Rabbi Elazar, son of Rabbi Shimon, says that the testimony of the witnesses obligates the thief to pay a fine even after his admission only there, in that specific case, because the thief admitted his guilt solely due to his fear of the impending testimony of the witnesses. But here, in an ordinary case of admission, where there is no impending testimony to incriminate him, and he admits his guilt of his own volition, even Rabbi Elazar, son of Rabbi Shimon, would concede that the thief is exempt from payment even if witnesses subsequently testify that he is liable.

אָמַר רַב הַמְנוּנָא: מִסְתַּבְּרָא מִילְּתֵיהּ דְּרַב בְּאוֹמֵר ״גָּנַבְתִּי״, וּבָאוּ עֵדִים שֶׁגָּנַב – פָּטוּר, שֶׁהֲרֵי חִיֵּיב עַצְמוֹ בְּקֶרֶן.

Rav Hamnuna said: Rav’s statement is more reasonable in a case where the thief says: I stole an item, and subsequently witnesses came and testified that he stole that item. In that case it is logical that the thief is exempt from paying the fine despite the witnesses’ testimony, because he at least obligated himself to pay the principal amount via his admission.

אֲבָל אָמַר ״לֹא גָּנַבְתִּי״, וּבָאוּ עֵדִים שֶׁגָּנַב, וְחָזַר וְאָמַר ״טָבַחְתִּי וּמָכַרְתִּי״, וּבָאוּ עֵדִים שֶׁטָּבַח וּמָכַר – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִכְּלוּם.

But if he says: I did not steal anything, and witnesses came and testified that he did steal an animal, and subsequently the thief says: Yes, I did steal the animal, and I also slaughtered it, or I also sold it, and witnesses came and testified that he slaughtered or sold it, he is liable to pay the fourfold or fivefold payment. The reason he is liable is that through his admission he sought to exempt himself from any payment whatsoever. In order for an admission to exempt the perpetrator from a fine, it must include an admission that he is liable to pay some payment.

אָמַר רָבָא: קַפַּחְתִּינְהוּ לְסָבֵי דְּבֵי רַב. דְּהָא רַבָּן גַּמְלִיאֵל פּוֹטֵר עַצְמוֹ מִכְּלוּם הֲוָה, וְקָאָמַר לֵיהּ רַב חִסְדָּא לְרַב הוּנָא – וְלָא קָא מְשַׁנֵּי לֵיהּ.

Rava said: In this case I have gotten the better [ kipaḥti ] of the elders of the school of Rav, which is a reference to Rav Hamnuna. The reason is that in the baraita that discusses Rabban Gamliel injuring his slave, he was seeking to exempt himself from any payment whatsoever through his admission, and yet earlier in the Gemara it was said that Rav Ḥisda stated this baraita to Rav Huna to challenge Rav Huna’s opinion, and Rav Huna did not answer him that Rabban Gamliel’s case was different because his admission served to exempt him entirely.

אִיתְּמַר נָמֵי, אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: ״גָּנַבְתִּי״, וּבָאוּ עֵדִים שֶׁגָּנַב – פָּטוּר, שֶׁהֲרֵי חִיֵּיב עַצְמוֹ בְּקֶרֶן. אֲבָל אָמַר ״לֹא גָּנַבְ[תִּי]״, וּבָאוּ עֵדִים שֶׁגָּנַב, וְחָזַר וְאָמַר ״טָבַחְתִּי וּמָכַרְתִּי״, וּבָאוּ עֵדִים שֶׁטָּבַח וּמָכַר – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִכְּלוּם.

The Gemara notes: It was also stated that Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says the same opinion as Rav Hamnuna. If a thief says: I stole an item, and witnesses came and testified that he stole that item, the thief is exempt from paying the fine despite the witnesses’ testimony, because he at least obligates himself, through his admission, to pay the principal. But if he says: I did not steal anything, and witnesses came and testified that he did steal an animal, and subsequently the thief says: Yes, I did steal the animal, and I also slaughtered it, or I also sold it, and then witnesses came and testified that he slaughtered or sold it, he is liable to pay the fourfold or fivefold payment, as through his admission he was seeking to exempt himself from any payment whatsoever.

אָמַר רַב אָשֵׁי: מַתְנִיתִין וּבָרַיְיתָא נָמֵי דַּיְקָא; מַתְנִיתִין – דִּתְנַן: גָּנַב עַל פִּי שְׁנַיִם, וְטָבַח וּמָכַר עַל פִּי עֵד אֶחָד אוֹ עַל פִּי עַצְמוֹ – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, וְאֵינוֹ מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

Rav Ashi said: There is a mishna and a baraita that are also precisely formulated in accordance with this opinion. The mishna is as we learned (74b): If one stole an ox or a sheep, as established based on the testimony of two witnesses, and he subsequently slaughtered or sold the stolen animal, as established based on the testimony of one witness or based on his own admission, he pays the double payment, but he does not pay the fourfold or fivefold payment.

לְמָה לִי דְּתָנֵי גָּנַב עַל פִּי שְׁנַיִם? לִיתְנֵי: גָּנַב וְטָבַח [וּמָכַר] עַל פִּי עֵד אֶחָד אוֹ עַל פִּי עַצְמוֹ – אֵינוֹ מְשַׁלֵּם אֶלָּא הַקֶּרֶן!

Why do I need the mishna to teach in the beginning of this case: If one stole an ox or a sheep, as established based on the testimony of two witnesses? Let the mishna teach the case more simply: If one stole an animal and then slaughtered or sold it, as established based on the testimony of one witness or based on his own admission, he pays only the principal. This would serve to teach the same principle in a less complicated manner, without the need for two additional witnesses.