Bava Kamma, Chapter 7, Mishnah 3. The Mishnah continues from the point we discussed: there are two distinct halachic facts here, and two sets of testimony that may be separate from one another - one regarding the theft itself, and a second regarding the slaughter or sale of the taken animal. Our Mishnah comes to discuss how the laws of eidim zomemim (conspiring witnesses) apply in such a scenario.
Contradiction and refutation - what is the difference?
Eidim zomemim are witnesses whose testimony has been refuted. We must distinguish between two different situations:
Contradiction (hachchashah): A second set of witnesses comes and says that the first set did not tell the truth. In this situation, a contradiction is created between the testimonies, the court does not know how to rule, and both sets are dismissed before it.
Refutation (hazamah): The second set does not contradict the content of the testimony, but rather the very possibility of testifying: "You were with us in a different place at the time you claim to have seen the act." Since they were not at the scene of the offense, they do not have the power to testify at all, and these witnesses are called 'eidim zomemim' (witnesses who conspired and plotted).
Regarding eidim zomemim it is stated: "And you shall do to him as he conspired to do to his brother" - we do to the witnesses what they conspired to do to the person against whom they testified falsely. Our Mishnah deals with the monetary aspect of this law: how the payment is imposed on sets of witnesses that were refuted regarding the testimony of the theft or regarding the testimony of the subsequent slaughter and sale.
One set that testified about the theft and the sale:
"Ganav al pi shenayim vetavach umachar al pihem, venimtze'u zomemin - meshalmin hakol" - if he stole based on two witnesses, and slaughtered and sold based on them, and they were found to be zomemim, they pay everything. One set testifies that the thief stole the animal, and that very same set testifies that he also slaughtered or sold that same sheep, goat, or cow. Afterward, a second set comes and refutes them: you were with us, and you were not at the scene of the act at the time you claimed. Their testimony is voided, and the eidim zomemim pay everything - if it involves a cow that was stolen and sold, the two witnesses together will pay five times its value, for this is "as he conspired", what they sought to extract from the thief.
It is worth noting that all this is when the testimony regarding the theft and the subsequent sale comes as a single unit. But if these were two separate occasions - first they testified about the theft, and afterward they testified about the sale or slaughter - they pay only the first part, the kefel (double) payments for the theft. The reason for this is technical (and a large part of this Mishnah is indeed technical): the rule is "an eid zomem is disqualified retroactively". Once it is proven that the witnesses are zomemim, their testimony is disqualified retroactively. Therefore, when the testimony regarding the theft is refuted, that testimony is no longer admissible, and they are liable for the kefel that they sought to impose on the accused; but it is not possible to build the second stage, that he took the stolen animal and sold it, upon disqualified testimony, since we no longer treat it as a stolen animal. Even though they were refuted in both aspects, only the first testimony is relevant, and the second falls away because it is built upon it - and therefore they will pay only kefel.
Two separate sets:
"Ganav al pi shenayim, vetavach umachar al pi shenayim acherim, elu va'elu nimtze'u zomemin - harishonim meshalmin tashlumei kefel, veha'acharonim meshalmin tashlumei sheloshah" - if he stole based on two witnesses, and slaughtered and sold based on two others, and both were found to be zomemim, the first pay kefel payments, and the latter pay three-fold payments. Set A testifies about the theft, set B testifies about the subsequent slaughter or sale, and additional pairs come and refute both of them: you were with us, and not at the scene of the offense. In such a case:
The first: The set that testified about the theft, and sought to obligate the thief with kefel payments, is the one that will pay the kefel.
The latter: The set that testified about the slaughter and sale will pay what it sought to obligate - the three additional payments for an ox, or the two additional payments for a sheep.
As was explained in the previous Mishnah, these are two distinct halachic facts, and therefore each set bears its own share.
Once again, similarly to the first case: according to Rashi and the Bartenura, once the first group that testified about the theft is falsified, the entire house of cards upon which the lie was built collapses, since the first stage must be establishing the theft, and only upon that foundation can a sale or slaughter be possible. Once the theft component is refuted, the sale and slaughter component also falls. Therefore, the testimony of the second group, even though it was later revealed to be untrue, does not render them edim zomemim, since they did not testify about something that was going to materialize - the halachic fact that the animal was stolen in the first place was already refuted in the first stage, and consequently, there is no significance to the subsequent sale or slaughter.
It emerges, according to the approach of Rashi and the Bartenura: group A testified about the theft, group B testified about the subsequent sale, group C came and falsified group A, and afterward group D came and falsified group B. Since group B's testimony is built on group A's testimony, and once group A is falsified its testimony falls - group B's testimony is rendered meaningless. Therefore, only group A will pay "as he conspired," meaning the double payment, while group B will be completely exempt. This is how the Bartenura learned, and this is implied by Rashi, following the view of Abaye in the Gemara.
This is somewhat puzzling, as the halachah does not follow Abaye, but rather Rava. According to Rava, the very falsification of the first group does not empty the second group's testimony of its meaning, since "contradiction is the beginning of falsification" - in every falsification there is an element of contradiction that serves as a building block. Therefore, according to Rava, and ostensibly also for the halachah, even though the first group was falsified, the second group will be obligated to pay. Furthermore, it emerges from the Rambam's wording that the second group pays the four or fivefold payment, and not merely three or two - and this too is difficult to understand, and requires further study as to why he ruled this way in this case.
When only one of the witnesses is falsified:
"Echad min ha'acharonim zomem - batelah edus shniyah" - if it is found that one of the two witnesses who testified about the slaughter or the sale is an ed zomem, the entire second testimony falls. Even though only one of the two was falsified, two witnesses are required to testify together, and therefore everything is voided. The second group will not pay anything, even though one of them is a liar.
"Echad min harishonim zomem - batelah kol ha'edus" - but if one of the two witnesses who testified about the theft is found to be an ed zomem, the entire testimony is voided, since the theft itself was not proven. Since this is so, there is no significance to the fact that he sold or slaughtered the animal afterward, and everything falls: no one pays anything, and everyone is exempt.
This is how the Bartenura learned, as did Rashi: if there is no theft, there is no slaughter and no sale. Since the theft was not proven to begin with, there is no longer any relevance to the slaughter and sale that came afterward.
In summary: In this Mishnah, we learned the application of the law of edim zomemim in cases of theft and sale. We discussed the difference between contradiction and falsification and the rule of "and you shall do to him as he conspired"; we saw that one group that testified to everything pays everything, whereas when they testified in two separate sessions they pay only double by virtue of the rule "an ed zomem is disqualified retroactively"; with two groups - the first pays double and the last pays three; and we noted the dispute between Abaye and Rava and the ruling of the Rambam. Finally, we learned that the falsification of one of the last witnesses voids the second testimony, and the falsification of one of the first witnesses voids the entire testimony.