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Bava Kama, 73

BAVA KAMA 73 (21 Tishrei, Hoshana Raba) - dedicated by Gedalyah Jawitz of Wantagh, N.Y., honoring the Yahrtzeit of his father, Yehuda ben Simcha Volf Jawitz.


QUESTION: The Gemara (end of 72b) suggests that when Rava says that Edim Zomemim become invalid witnesses "from now on" ("mi'Kan ul'ha'Ba"), he really agrees with Abaye that, mid'Oraisa, they become invalidated l'Mafrei'a, from the time that they gave false testimony. The reason why we uphold any testimony that they gave between that time and the time that they were found to be lying is in order to protect any buyers who purchased land and signed these witnesses on their contracts ("Mishum Peseida d'Lekuchos").

Why, though, are we not also concerned about protecting the *sellers* from loss? The seller claims that the sale never took place, and that the witnesses signed on the contrast are invalid and their testimony is not acceptable. Why should we be interested in protecting the buyers more than the sellers?

ANSWER: The CHIDUSHEI HA'RAN in Sanhedrin (27a, DH Rava) answers that there is no concern that the sellers will lose out, because the buyer is in possession of the land and he has a bill of sale stating that the seller sold it to him. Since he has both possession of the land and a bill of sale, it is clear that the seller sold it to him, for if not, why did the seller not take him to court earlier, when he saw this person occupying his land? The only concern is that the contract itself is not a valid contract since the witnesses that signed it are invalid, and the buyer is left without proper proof to the sale. Therefore, the Chachamim said that such witnesses *are* acceptable when signed on a contract in order to maintain order in the marketplace.


OPINIONS: The Gemara discusses the concept of "Toch Kedei Dibur, k'Dibur Dami." We know, as the Gemara explains, that "Toch Kedei Dibur" is the length of time that it takes for a student to say a greeting to his teacher (e.g. "Shalom Alecha Rebbi"). "K'dibur Dami" means that within this small amount of time, we view an act or speech as not yet completed and still continuing. Thus, even though the person has, with regard to his actions, already stopped performing the act, within this amount of time he may act or say something that will abrogate his previous actions or words, or, in the case of our Gemara, may add something to his previous words which will be considered to have been said at the same time as his previous words.

The Rishonim differ regarding the source for this principle and regarding the mechanics of how it works.

(a) The RAN (Nedarim 87a) writes that the principle of "Toch Kedei Dibur" (as well as its exceptions) are *mid'Oraisa*. The logic behind this is that a person is never totally committed to his actions and reserves the right to renege within the small amount of time of Toch Kedei Dibur. However, when performing actions which are of such a severe nature (the exceptions mentioned in the Gemara in Nedarim, such as blaspheming (Megadef), idolatry (Avodah Zarah), marriage, and divorce), a person does not begin the action until he is absolutely committed to doing it, and therefore he does not reserve in his mind the right to renege.

The RITVA in Nedarim says that "Toch Kedei Dibur" is "k'Dibur Dami" because within that amount of time a person's lips are stilled involved in the speech that he just articulated, and it is considered as though he is still speaking.

(b) TOSFOS here (DH Ki Leis Lei) quotes RABEINU TAM who explains that the Halachah of "Toch Kedei Dibur" is a Takanah d'Rabanan. The Rabanan instituted this principle in order to enable a buyer to greet his teacher or his friend while in the middle of a purchase, or to enable a witnesses to greet his teacher or his friend while in the middle of giving testimony (since the Gemara in Berachos (6b) says that one who is greeted by someone else and does not return the greeting is called a "Gazlan"), without that greeting acting as an interruption between the words he was saying beforehand and the words he says afterwards. TOSFOS cites this opinion in the name of Rabeinu Eliezer. Tosfos asks, however, that it "Toch Kedei Dibur" cannot be a Takanah d'Rabanan, because it is said even with regard to Halachos that are mid'Oraisa.

(c) The RASHBAM (Bava Basra 129b) writes that the principle of "Toch Kedei Dibur" is mid'Oraisa in all cases, including those exceptions mentioned in the Gemara in Nedarim (that is, one can rescind within "Toch Kedei Dibur" even in cases of Megadef, Avodah Zarah, marriage, and divorce), but the Rabanan enacted that it does *not* work in those cases. The Rabanan enacted that it not work in cases of Megadef and Avodah Zarah because of the severity of the act, and that it not work in cases of marriage and divorce in order to prevent rumors from spreading which would ruin the reputation of the children born from the union.

QUESTION: These explanations of "Toch Kedei Dibur," however, do not seem to be consistent with the Sugya of our Gemara. The Gemara explains that according to Rebbi Yosi, when the witnesses (who testified about the Geneivah and about the Tevichah) are found to be lying (they are Edim Zomemim) about the Tevichah, their testimony about the Geneivah is also invalidated. We can understand that we invalidate, retroactively, all of their testimonies that they gave *after* the moment that they testified falsely about the Tevichah. But why should we also invalidate them for the testimony that they gave (i.e. about the Geneivah) *before* the Tevichah? Just because it was within "Toch Kedei Dibur" of their testimony about the Tevichah is not a reason to invalidate it!

ANSWER: The AMUDEI OR answers this question by proposing the following explanation. He suggests that since the principle of "Toch Kedei Dibur" enables the witnesses to retract their testimony (about the Geneivah) within the time of "Toch Kedei Dibur," we view their entire testimony as taking effect only *after* "Toch Kedei Dibur" has passed from the time that they stop testifying. It is at that point -- when they can no longer retract what they say -- that they show that their intentions are absolute and irrevocable, and thus it is at that point that their testimony takes effect and becomes binding and official. Therefore, when they are proven to be Edim Zomemim with regard to their testimony about the Tevichah, this also invalidates their testimony about the Geneivah, since it is considered to have been said all at the same time -- the moment that "Toch Kedei Dibur" passed and they could no longer retract any of their testimony. (I. Alshich)

QUESTION: The Gemara says that the amount of time of "Toch Kedei Dibur" refers to the amount of time that it takes a Talmid to give a greeting to his teacher. How, though, can this be the time of "Toch Kedei Dibur," if it is *Asur* for a Talmid to give a greeting to his teacher, as the Gemara in Berachos (27b) says, "One who gives a greeting (of 'Shalom') to his teacher causes the Shechinah to be removed from the world?" (TOSFOS)


(a) TOSFOS here and in Berachos answers that the Gemara in Berachos refers to when the Talmid greets his teacher in the same manner that he greets his friend ("Shalom Aleicha"). The Gemara here is referring to a greeting of respect for his teacher ("Shalom Aleicha Rebbi"), which is permissible. This is also the explanation of RASHI in Berachos (DH Shalom l'Rabo).

(b) TOSFOS in Berachos answers further that perhaps the Gemara here in Bava Kama is referring to a *Talmid Chaver* (a colleague), and not to a full-fledged Talmid. A Talmid Chaver is permitted to greet his teacher who is also his colleague. (It is clear from Tosfos that even a Talmid Chaver must greet his teacher with a greeting of respect, as our Gemara says, "Shalom Aleicha Rebbi u'Mori." This implies that for a regular Talmid, it is prohibited to greet his teacher altogether, even with a greeting that expresses respect. This is indeed the ruling of the Yerushalmi, as mentioned by the REMA in Yoreh Deah 242:16.)

(c) Although our text of the Gemara in Berachos says that a Talmid may not greet his teacher (i.e. initiate the greeting) nor return a greeting to his teacher, the RIF, ROSH, and TALMIDEI RABEINU YONAH in Berachos do not have the Girsa that a Talmid may not *return* a greeting. They therefore explain that the Gemara here, when it says that "Toch Kedei Dibur" is the time that it takes a Talmid to greet his teacher, refers to the time it takes for him to *return* a greeting, which, according to their Girsa, is permissible.

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