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MAKOS 5

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1)   click for question
(a) When our Mishnah rules ...
1. ... 'Meshalshin be'Mamon', it means - that the Eidim Zomemin divide between them the money that they owe the defendant against whom they testified.
2. ... 'Ein Meshalshin be'Makos', it means - that each one receives the full quota of Malkos.
(b) Abaye learns the latter Din from a 'Gezeirah-Shavah' "Rasha" "Rasha" from Chayvei Misah. Rava however, learns it from "Ka'asher Zamam", since they must receive whatever they wanted their victim to receive.
(c) The same S'vara does not apply to Mamon - because whereas Malkos is not called Malkos unless the Nadun receives the full amount of lashes, Mamon is called Mamon even if they divide it, since Mamon depends on the recipient.

2)   click for question
(a) Our Mishnah states 'Ein ha'Eidim Na'asin Zomemin ad she'Yazimu es Atzman' - to preclude a case where the second pair of witnesses claim that the murderer or the victim (not the first pair of witnesses) was with them at the time.
(b) According to the Tana Kama, irrespective of how many pairs of witnesses Reuven and Shimon declare Zomemin, they are believed, and (in a case of Chiyuv Misah) all the pairs are put to death. Rebbi Yehudah says 'Istatis hi Zu'- ('this is a put-up job', and we can only believe them vis-a-vis the first pair of witnesses).
(c) Rav Ada (or Rabah or Rava) learns from the Pasuk in Parshas Shoftim "ve'Hinei Eid Sheker ha'Eid, Sheker Anah be'Achiv" - that the witnesses are only Zomemin if the second witnesses prove them false by testifying against them personally.
(d) de'Bei Rebbi Yishmael learns it from the Pasuk "Ki Yakum Eid Chamas be'Ish La'anos bo Sarah" - which he interprets to mean that the actual witnesses must be 'removed'.

3)   click for question
(a) Rava draws a distinction, in a case where Reuven and Shimon testified that Levi killed Yehudah ...
1. ... on the east side of the palace, and Yisachar and Zevulun claim that Reuven and Shimon were with them on the west side of the palace at that time - between where it is possible to see from the west to the east (in which case they will not be Zomemin), and where it is not (in which case they will).
2. ... on Sunday morning in Sura, and Yisachar and Zevulun testify that Reuven and Shimon were with them in Neherda'a on Sunday evening - between where it is possible to get from Sura to Neherda'a (in which case they will not be Zomemin), and where it is not (in which case, they will).
(b) The reason that ...
1. ... the first case is not obvious is - because one might have thought that even if most people cannot see from one side of the palace grounds to the other, perhaps we ought to take into consideration the possibility that Reuven and Shimon's eyesight is particularly good, and not declare them Zomemin.
2. ... the second case is not obvious is - because, by the same token, even if it is not possible to travel from Sura to Neherda'a in one day, perhaps Reuven and Shimon made it by means of a particularly fast racing camel. Note, that presumably, both of these suppositions are based on the Pasuk "ve'Hitzilu ha'Eidah" (the obligation to try and save a fellow-Jew from the death-sentence).

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(a) Rava rules in a case where Reuven and Shimon testify that Levi killed Yehudah, and Yisachar and Zevulun then render them Zomemin, adding that Levi did indeed kill Yehudah but 1. on Tuesday, or even 2. on the Friday before, that the first pair are Chayav Misah. We might have thought otherwise ...
1. ... in the first case - because Reuven and Shimon were testifying against a man who really did murder, and who was therefore Chayav Misah anyway.
2. ... in the second case (even after knowing the first ruling) - because in this case, he had even murdered prior to the date that they gave, which certainly ought to exempt them from being sentenced to death.
(b) They are nevertheless Chayav Misah - because a murderer is not considered Chayav Misah until Beis-Din pronounce that he is (not even retroactively after they declare him Chayav).
(c) We query this from the Mishnah later, which expressly declares the witnesses Chayav Misah, even though their victim is found to be Chayav too - so what is Rava's Chidush?
(d) And we answer the Chidush lies in the 'Seifa' - where Rava Rava exempts them from the death-penalty should their testimony have taken place after Levi had already been sentenced (in another Beis-Din, only the current Beis-Din were unaware of the sentence).

5)   click for question
(a) Rava rules in the Seifa that in a case where Reuven and Shimon testified on Thursday that Levi was sentenced to death for the murder of Yehudah on Monday, and Yisachar and Zevulun, after testifying 'Imanu Heyisem', add that he was sentenced on Tuesday - Reuven and Shimon are Patur (despite the fact that when Reuven and Shimon claimed that Levi had murdered Yehudah, the murder had not yet taken place) ...
(b) ... because when Reuven testified, Levi had already been sentenced to death, and witnesses cannot became Chayav Misah for testifying against a dead man.
(c) In a case where Reuven and Shimon testify on Thursday that Levi ...
1. ... borrowed a hundred Zuz from Yehudah on Monday, and Yisachar and Zevulun, after testifying 'Imanu Heyisem', add that he borrowed the money on Tuesday - Reuven and Shimon will be Patur (because a debtor is obligated to pay from the moment that he borrows, irrespective of whether Beis-Din have declared him Chayav or not).
2. ... stole a sheep, and Shechted or sold it on Monday, and Yisachar and Zevulun, after testifying 'Imanu Heyisem', add that he stole it ... on Tuesday or even on the Friday before - Reuven and Shimon are Chayav ...
(d) ... because this is a case of K'nas - and K'nas, unlike Mamon only becomes Chayav when Beis-Din obligate him to pay ...
(e) ... as is evident from the principle 'Modeh bi'Kenas, Patur' ('Someone who admits to a K'nas is Patur'). Consequently, K'nas is equivalent to Chiyuv Misah in this regard.

6)   click for question
(a) The problem with Rebbi Yehudah's ruling 'Istatis Hi Zu' is - why we then accept the witnesses testimony with regard to the first pair of witnesses, who are sentenced to death on their testimony. (b) We reject Rebbi Avahu's answer (that the Tana speaks when they were already put to death) because - if the Din had already been carried out, there would be no point in the Mishnah mentioning it.
(c) Rava therefore amends Rebbi Yehudah's statement to read - that if there is only one pair of witnesses (whom the Mazimin declare to be Zomemin), then they are sentenced to death, but not if there are more.
(c) The Kashya we ask (and remain with) on Rava from Rebbi Yehudah's Lashon is - the addition of the word 'Bil'vad' ('Ein Nehereges Ela Kat Rishonah Bil'vad'), which doesn't really make much sense according to his explanation.

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(a) In a case where a woman brought two pairs of witnesses who were found to be Zomemin, and she produced a third pair, Resh Lakish ruled - that the woman had a Chazakah of hiring false witnesses, and the third pair was not acceptable.
(b) Rebbi Elazar objected to Resh Lakish's ruling's however, on the grounds - that even if the woman had a Chazakah, the third pair of witnesses don't (so how can we invalidate them?)
(c) The same thing happened again - when Resh Lakish and Rebbi Elazar were once sitting before Rebbi Yochanan. There too, Resh Lakish repeated his opinion, only this time, it was Rebbi Yohanan who raised the same objection as Rebbi Elazar had done previously.
(d) Resh Lakish became angry with Rebbi Elazar - because he suspected that he had received his ruling from Rebbi Yochanan, but that he had failed to say so.
(e) After suggesting that Resh Lakish holds like Rebbi Yehudah and Rebbi Yochanan, like the Rabbanan, we reconcile ...
1. ... Resh Lakish with the Rabbanan, inasmuch as even they will agree with Rebbi Yehudah here, invalidating the witnesses - seeing as the woman was looking for false witnesses, even going so far as to pay them for their services (whereas in the case in our Mishnah, the second pair of witnesses were acting on their own volition.
2. ... Rebbi Yochanan with Rebbi Yehudah in this case, inasmuch as even Rebbi Yehudah may well agree with the Rabbanan in this case - because Rebbi Yehudah only said his Din there, where it is simply not feasible that the whole world happened to have been with the second pair of witnesses wherever they were; whereas here, it is perfectly feasible to say that the earlier pairs of witnesses did not know the testimony, whilst the last pair did.

8)   click for question
(a) The Chachamim declare the Eidim Zomemin Chayav, only if they became Zomemin after the Din against the litigant whom they obligated has been finalized. The Tzedokim ruled - that they are sentenced to death even if they became Zomemin after the Din was executed.
(b) The Tzedokim based their ruling on the Pasuk in Mishpatim "Nefesh Tachas Nafesh", the source of the Rabbanan's ruling is the Pasuk - "Ka'asher Zamam La'asos le'Achiv" ('only as long as his brother is alive', because after his death he is no longer called a brother).
(c) The Rabbanan then learn from "Nefesh be'Nafesh" - that they are Chayav only after the G'mar-Din (the final ruling has been issued), but not before.
(d) b'Rivi's father wanted to learn a 'Kal va'Chomer - that if the Eidim Zomemin are Chayav before the Din has been carried out (for "Ka'asher Zamam"), how much more so afterwards.
(e) When his father asked him why we do not apply it, b'Rivi replied - with the principle that he (his father) himself had taught him 'Ein Onshin min ha'Din' (that one cannot punish on the basis of a 'Kal va'Chomer').

9)   click for question
(a) Despite the fact that the Torah writes in Kedoshim "Ish Asher Yikach es Achoso bas Aviv O Bas Imo", it needs to add "Ervas Achoso Gilah" - to teach us that the punishment of Kareis extends to a sister who is both a paternal and maternal one.
(b) We cannot learn this from a 'Kal va'Chomer' from "bas Aviv O bas Imo" - because of the principle 'Ein Onshin min ha'Din'.
(c) And having written in Acharei-Mos "Ervas Achoscha bas Avicha O bas Imecha ... (the Azharah)", the Torah nevertheless needs to add "Ervas bas Eishes Avicha Moledes Avicha" - because of the principle 'Ein Mazhirin min ha'Din'.
(d) The source for 'Ein ...
1. ... Onshin min ha'Din' and 'Ein Mazhirin min ha'Din', respectively, is the Pasuk "Ervas Achoso Gilah" and "Ervas bas Eishes Avicha Moledes Avicha" (as we just explained).

10)   click for question
(a) In connection with the Din in our Mishnah ('Ein ha'Eidim Zomemin Neheragin ad she'Yigamer ha'Din'), we learn from the 'Gezeirah-Shavah' ...
1. ... "Rasha (by Malkos)" "Rasha" (by Misah) - that the same principle applies to Chayvei Malkos.
2. ... "Rotze'ach (be'Shogeg)" "Rotze'ach" - that it applies to Chayvei Galus, too.
(b) In spite of the fact that the witnesses in the latter case (of Rotze'ach be'Shogeg) also receive Malkos (as we learned above), we cannot learn it from the previous case of Chayvei Malkos - since their Din is not derived from "Ka'asher Zamam" (as we learned there too).
(c) When Rebbi Yehudah ben Tabai related how he killed an Eid Zomem after the G'mar Din but before the defendant had been put to death, to preclude the opinion of the Tzedokim, Shimon ben Shetach informed him - that he had spilled innocent blood, since we have learned (in the next Mishnah) that only both witnesses can become Zomemin, and not just one of them.
(d) Rebbi Yehudah ben Tabai's dual reaction to the Chachamim's reprimand was ...
1. ... to undertake from that time on - never to issue a ruling unless he was in the presence of Rebbi Shimon ben Shetach.
2. ... to atone for his mistake - by regularly visiting the grave of the witness whom he had sentenced to death and begging his forgiveness.

11)   click for question
(a) Everyone believed the voice that they heard to be that of the Eid Zomem. Rebbi Yehudah ben Tabai tried to prove that it was his own voice - since, following his own death, the voice would stop.
(b) Rav Acha b'rei de'Rava refuted his proof however - because it could have been the voice of the witness either taking Rebbi Yehudah ben Tabai to a Din Torah or coming to terms with him (which would also explains why it was no longer heard after Rebbi Yehudah ben Tabai's death).

12)   click for question
(a) The problem our Mishnah has with the Pasuk in Parshas Shoftim 'al-Pi Shenayim Eidim O Sheloshah Eidim Yumas ha'Meis" is - why the Torah needs to add "O Sheloshah Eidim". If two witnesses are valid, then three certainly are!
(b) The Tana Kama resolves it - by learning a Hekesh from it, comparing two witnesses to three, inasmuch as just as three witnesses can render two, Zomemin, so too, can two render three, Zomemin.
(c) And from the word "Eidim" he learns - that they can even render a hundred witnesses Zomemin ...
(d) ... based on the principle 'T'rei ke'Me'ah' [two witnesses are just as good as a hundred']).

13)   click for question
(a) Rebbi Shimon learns from above Pasuk - that three, and even a hundred witnesses, do not become Zomemin unless all of them do, just like the Din is by two.
(b) Despite the fact that the Torah writes "ve'Hinei Eid Sheker ha'Eid" (in the singular), we know that both witnesses must become Zomemin - because, whenever the Torah writes S'tam "Eid", it means a pair of witnesses (as we have learned in Sotah).

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(a) According to Rebbi Akiva, the third witness comes (not to be lenient, like Rebbi Shimon, but) to be strict. And he goes on to explain that - even though the third witness is superfluous, he is subject to the same punishment as the first two, should they turn out to be Zomemin.
(b) And if that is true of someone who joins a group of sinners, he continues - how much more so will it be true of someone who joins a group of people who are performing a Mitzvah.
(c) The source of this 'Kal va'Chomer' is - the principle that 'Midah Tovah Merubah mi'Midas Pur'anus' (Hashem's measure of good exceeds that of His measure of bad).
(d) The second Chumra Rebbi Akiva learns from the comparison of three witnesses to two is - that if one of the witnesses is found to be Pasul, he disqualifies the entire testimony, even if he is the third witness, and there are two witnesses without him.

15)   click for question
(a) Rebbi Yossi qualifies the previous ruling - by restricting it to Dinei Nefashos, but not to Dinei Mamonos (see also Tosfos DH 'Amar').
(b) The reason for the distinction is - because when it comes to a ruling concerning life and death, the Torah writes "ve'Hitzilu ha'Eidah" (obligating Beis-Din to save the defendant from the death-sentence wherever possible).
(c) Rebbi agrees with Rebbi Akiva - but only if the third witness was party to the warning. Otherwise ...
(d) ... whenever two brothers witness a murder, they will immediately disqualify all witnesses who saw it too.

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