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Bava Kama, 75


QUESTION: The Beraisa relates that when Raban Gamliel admit that he blinded the eye of Tevi his servant and thus rejoiced because he was thereby able to set Tevi free, Rebbi Yehoshua responded to him that, "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, though, could he still not set his servant free on the basis of having blinded his eye? Even though one who admits to a Kenas is exempt from paying it, there nevertheless should be an obligation to pay the Kenas to fulfill one's duty b'Yedei Shamayim. Why, then, were Raban Gamliel's words "meaningless?"

ANSWER: The RASHBA, citing the YERUSHALMI, and many other Rishonim prove from here that the rule that "Modeh b'Kenas Patur" exempts the person completely, and there is no Chiyuv whatsoever, even b'Yedei Shamayim. Why, though, should this be so?

The straightforward understanding is that in a normal monetary obligation (such as when a person damaged the property of another person and is obligated to pay for it), the Chiyuv takes effect at the moment that the damage is done. Witnesses are not necessary to create the Chiyuv itself; the person's action of damaging his friend's property is what makes him Chayav to pay for it. The purpose of having witnesses testify in court is merely 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, or 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 that the person did; the Chiyuv of the Kenas comes about only when Beis Din issues a ruling requiring that a Kenas be paid (for that is the nature of a Kenas). The Kenas is entirely created by the testimony of witnesses in Beis Din, and not by the act that the person did. Therefore, where 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.)

OPINIONS: We know that one who admits to having done something that obligates him to pay a Kenas is exempt from paying the Kenas. Rav and Shmuel argue whether one remains exempt when, after he admits, 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 admit to the Kenas, or does it apply even when the witnesses go to a second Beis Din and testify there that the person is Chayav 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 then come to a different Beis Din in which he did not admit, then that second Beis Din indeed can obligate him to pay the Kenas. The Ketzos writes that the reason for this is because the exemption of one who admits to a Kenas does not automatically cancel out the act that was done or the obligation that was depending 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 declaring his guilt, and not through his own declaration of guilt ("Marshi'a Es Atzmo"). The second Beis Din, though, 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 can no longer be obligated to pay even if witnesses testify in a different Beis Din.

It seems that the basis for this argument depends on the way that "Modeh b'Kenas" works to exempt a person from the Kenas. There are two possible ways that it could work. 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 in some sense and he then becomes exempt from it).

The Terumas ha'Kri seems to hold 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 holds that once a person has admitted to a Kenas, Beis Din cannot obligate him to pay. However, another Beis Din -- in which he has not admit -- *can* 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'GA'ON RAV NAFTALI TROP, #125, who writes that the basis for the view of the Ketzos can be found in the words of the RA'AVAD in SEFER HA'ZECHUS, and in the RAMBAN there.)


QUESTION: The Gemara says that the Rabanan and Sumchus argue with regard to "Edus she'Iy Atah Yachol l'Hazimah" -- testimony that cannot be proven to be false through "Hazamah." The Rabanan hold that any testimony of witnesses that does not allow for the possibility of being proven false through "Hazamah" is not valid testimony. Sumchus holds 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 our 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 argue? What is the underlying point of their Machlokes?

ANSWER: To explain the Machlokes, we first need to understand the principle that "Edus she'Iy Atah Yachol l'Hazimah" is not a valid testimony. There are two ways of understanding it. The first way is that it is a Gezeiras ha'Kasuv -- the Torah says that such Edus is not valid. Just like the Torah gives other guidelines with regard to Edus (for example, that the testimony of certain people, such as a relative, is invalid), so, too, the Torah 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.

It could be that the Rabanan maintain that "Edus she'Iy Atah Yachol l'Hazimah" is invalid testimony just like the testimony of an other invalid witness -- it is a Gezeiras ha'Kasuv. Just like the testimony of even the greatest Tzadik like Moshe for his brother Aharon is invalid, so, too, any Edus that cannot be found to be false through "Hazamah" is invalid. Sumchus, on the other hand, holds that the basis for this principle is logical -- because we fear that the witnesses might be lying when it is not possible to prove their testimony false. Hence, in this case, where we know that they are not lying, we can accept their testimony even though it cannot be proven false through "Hazamah." (I. Alshich)

OPINIONS: The Gemara discusses the principle of "Edus she'Iy Atah Yachol l'Hazimah" -- any testimony of witnesses that does not allow for the possibility of being proven false through "Hazamah" is not valid testimony. Among the Poskim, there is a significant Machlokes with regard to whether this principle applies to testimony about monetary matters.

(a) The SHACH (CM 32) shows that we can prove from our Sugya that the Gemara holds that it *does* apply to testimony about monetary matters, since the Gemara is discussing matters of payment.

(b) The PNEI YEHOSHUA (Kuntrus Acharon, Kesuvos (21b), #68 DH Amnam) and the NODA B'YEHUDAH (Mahadura Kama, EH 72, DH ha'Kelal) refute the proof from our Gemara. (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 hold 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 because 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," 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 we still accept such testimony.

This reasoning, however, applies only to testimony about normal monetary matters. Our Gemara, though, is discussing testimony about penalties (Kefel and Arba'ah v'Chamishah). Testimony about a Kenas *does* require "Derishah v'Chakirah," as the Gemara in Sanhedrin states. It is possible to make such witnesses into Edim Zomemim, and thus "Edus she'Iy Atah Yachol l'Hazimah" is invalid testimony, and that is why our Gemara mentions this principle with regard to this type of monetary law.

The Shach himself addresses this question on his view. He says that even though the Gemara is discussing testimony concerning a Kenas, it is unlikely that when the Gemara says that "Edus she'Iy Atah Yachol l'Hazimah" is invalid testimony that it is referring 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 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.

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