Bava Kamma 72

False witnesses.

The Torah is clear in its contempt for false witnesses. In addition to being included in the Ten Commandments, Deuteronomy 19:18-19 notes the punishment for such individuals: “If the one who testified is a false witness, having testified falsely against a fellow Israelite, you shall do to the one as the one schemed to do to the other. Thus, you will sweep out evil from your midst.” 

In accordance with this standard of punishment, the mishnah on today’s daf states:

If one stole based on two witnesses, and he slaughtered (the animal) or sold it, also based on (the testimony) of the same witnesses, and these were found to be conspiring, they pay everything. 

The mishnah calls witnesses who are found to be lying eidim zomemim — conspiring witnesses. In a case where witnesses testified that someone stole an animal and then slaughtered or sold it, if the witnesses are later found to be conspiring witnesses, not only is their testimony thrown out, but they are liable to pay the maximum fine that the thief they testified against would have been obliged to pay. 

While this seems to be a pretty straightforward application of the biblical text, the Gemara raises a related issue: From when do we label these people conspiring witnesses? Is it from the time they are discovered to have lied, or from the time they provided the testimony?

Abaye says: He is disqualified retroactively. Rava says: He is disqualified only from that point forward.

Determining when the witnesses are labeled as false matters because it impacts whether we accept the validity of testimony those witnesses may have given in other cases. Abaye says that we label them false witnesses retroactively, meaning that any testimony they gave after the testimony in our case is considered nullified. Rava disagrees, saying that only testimony they gave after having been established as false witnesses is disqualified. 

How do these two sages arrive at their differing opinions? 

Abaye says he is disqualified retroactively because it is from that time when he testified that he is considered a wicked man, and the Torah said: “Do not put your hand with the wicked to be an unrighteous witness” (Exodus 23:1).Rava says that he is disqualified only from that point forward because a conspiring witness is a novelty.

Abaye looks at the witness’s character. If he is wicked, Abaye reasons, he’s been wicked from the time he testified, not just from the point of discovery. Rava holds that false testimony is unique, so we shouldn’t assume the lying witnesses always lie, but rather that their testimony is situational (meaning that they lied for specific reasons in this particular case) or that there’s no obvious reason to trust the later witnesses who contradicted the earlier witnesses. 

On tomorrow’s daf, we will learn that although in disputes between Rava and Abaye the halakhah typically follows Rava, there are six exceptions, and this is one of them: The witnesses’ testimony is invalid from the time it was offered, not the time of discovery. 

This decision points to something critical: Getting caught isn’t the deciding factor; the false testimony is. Someone who offers false testimony isn’t just obfuscating a court case — they’re perverting the entire system of justice that relies on witnesses speaking the truth. As such, they’re liable for their words — and resulting judgment — from the time they decided to lie.

Read all of Bava Kamma 72 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 13th, 2024. If you are interested in receiving the newsletter, sign up here.

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