COMMENTARY
דף ע"ה
It begins with the משנה דף ע"ד ע"ב. The משנה states if the theft was witnessed by two and the slaughter or sale by one or the thief admits, he does not pay the four or five. The novel teaching is just as one witness if another testifies later it is the testimony of two so too an admittance followed by witnesses makes the thief liable. This contradicts רב who holds מודה בקנס ואח"כ באו עדים פטור. However the גמרא proves even according to רב that if the admittance was out of court it is not binding as in the case of רבן גמליאל who blinded טבי his slave to free him. רבי יהושע said you accomplished nothing with your admittance because "there are no witnesses". He is still a slave. However with witnesses, he would be liable to free him because he admitted out of court. In court his admittance would stand against witnesses. רב proves it from the verse אם המצא תמצא the double לשון indicates if he is found guilty by witnesses he can be found guilty by the courts. However how do we know if witnesses came after his admittance he is believed! A second verse says אשר ירשיעון אלוקים only if the courts incriminate him and not witnesses. שמואל holds one חייב. אשר ירשיעון refers to a thief whereas the other verse refers to a custodian. Although שמואל claims support to his opinion from רבי שמעון בן אלעזר in a ברייתא it could be he holds like רב except in a case where the thief fears approaching witnesses.
רב המנונא qualifies רב's ruling to where he admits the theft since he obligates himself to pay at least the principal but if did not admit to the theft only to the slaughter or sale and then witnesses testified he did slaughter the animal he is liable to pay because by his admittance he did not obligate to anything. This is also the opinion of רבי יוחנן. Our משנה supports this as well because the first teaching compares one witness to one who admits where there were two witnesses to the theft and an admission to the slaughter or sale but if there was an admittance to the theft even if witnesses testified after he stole he would be exempt.
The גמרא attempted to prove that in fact this rule is argued by סומכוס and the רבנן. In a case where witnesses forced admittance by the thief to the theft if he also admits to the slaughter since it was not on account of witnesses according to the רבנן it is a bona fide admission and even if witnesses testify later to the slaughter he is exempt. סומכוס holds since he did not obligate himself to anything by admitting he is not exempt. The גמרא refutes this. Their argument is concerning עדות שא"א יכול להזימה.
