Bava Kamma 067

1:
We have on several occasions noted that since theft in rabbinic jurisprudence is a tort and not a crime the facts of the case must be established by the testimony of two witnesses. It is this testimony that, in fact, makes it possible for the charge to be brought: in the absence of reliable testimony there is no case to answer. This basic element of rabbinic jurisprudence is first enunciated in the Torah [Deuteronomy 17:6-7]:

The Torah here is dealing with the most grave of situations, where a person faces the death sentence. Even here the testimony of a single witness is unacceptable. The reason for this will become apparent very soon. Since the witnesses in such a case are the ones who know beyond doubt that the crime was committed it is they, if the accused is found guilty, who must put him to death! (This alone must have reduced the number of capital charges that were brought!) However, the requirement of at least two witnesses to establish a case applies to any action at law in rabbinic jurisprudence.

2:
Because such a heavy responsibility lies on the witnesses it is essential that it be possible to verify that they are telling the truth. This can only be done by comparing the testimony of the one against the testimony of the other. (Those interested can learn the details of the examination of witnesses from Tractate Sanhedrin 4:5.) It is for this reason that the Torah [Deuteronomy 19:15-20] also institutes a 'measure for measure' punishment for perjury.

Thus the punishment for perjury is that whatever fate awaited the accused on the basis of this false testimony is the fate that must overtake the perjured witness. If the accused stood to forfeit his life that shall be the fate of the perjured witness.

3:
Happily, in the cases with which we are dealing the situation is much less gruesome (except possibly for the ox or the sheep). The punishment for theft, as we now know, is repayment. The basic repayment is double: that is to say 200% of the value of what was stolen. In the case of an ox an extra repayment of a further three times the value of the ox is added. (In the case of a stolen sheep the thief must make the double repayment with another double repayment added.)

4:
So, it follows, that if two witnesses are found to have perjured themselves concerning the theft and subsequent sale of an ox they must pay five times the market value of an ox. This is the ruling of the first clause of our mishnah.

5:
We noted when we first started our study of theft that in the case of an ox or a sheep the Torah posits two separate acts: the theft of the animal and its subsequent slaughter or sale for profit. It is possible that two witnesses testify that David stole Sara's ox and two other witnesses testify that David then sold the ox to Joel at a handsome profit. When the case comes to court the judges find that both sets of witnesses have perjured themselves. In such a case, the first set, who testify to the actual theft, must make double repayment while the second set, who testify to the sale of the animal, must make triple repayment.

6:
It should not be too difficult now to understand the rest of the provisions of our present mishnah.

• If only the witnesses to the sale are found to have lied they must make triple repayment; since the first set of witnesses, to the fact of the theft, did not lie the thief must make double repayment.
• If of the two witnesses to the sale only one is found to have lied the fact of the sale (or slaughter) has not been established, so the perjurer gets off scot free. (Remember, two separate testimonies establish a fact at law.) The thief would still have to make double repayment since the fact of his theft has been established by the testimony of the first set of witnesses.
• If one of the first set of witnesses is found to have lied the whole case falls down. Since there are not two witnesses even to the theft there is no case at all to answer: "there was no theft, no slaughter and no sale."

Ronen Lautman wishes to clarify his question which I answered in the previous shiur:

I meant a situation in which two witnesses see the ox stolen but are not able to estimate the value of the ox. For example, the theft took place at night and it was impossible for them to see that the ox was blind.

I respond:

My response is unchanged. Why do you think that it is the witnesses who must establish the value of the ox? That is the task of the judges.