How can Tosfos say that malkos would be casher zamam when the gmeara says that some people don't have din hazama done to them. That surely implies malkos is not casher zamam? thanks and have a great evening!
Nati raymond, United Kingdom
Hi Nati,
Your great question is a base of a topic well-spoken of in the Yeshiva world. The question if the Malkos given in this case is a result of the Lav of Eidim Zomemim, or rather the Posuk of 've'Hitzdiku' just teaches us that although the Lav of 'Lo Taane' is a Lav she'Ein Bo Maase, but unusually still brings on them a punishment of Malkos. Some say, that these two arguments are the opinions in the two answers of Tosfos. The answer you brought holds that the Malkos come as a substitute punishment for the Hazama, while the following answer holds that the Malkos are on the Lav of the Eidus Sheker, regardless of the special addition of Eidim Zomemim. It is important to add that these two opinions are not only a theoretical discussion. If we say. The Malkos come as a Hazama punishment; all the special conditions of Hazama need to be verified before we can execute the Malkos. For example, the special Halacha of 'Ka'asher Zamam ve'Lo Ka'asher Asa', or the Halacha that only if both of the Eidim are Zomemim we can apply the punishment.
Many or even most of the Rishonim seem to hold like the first opinion, while others hold like the second. According to the first opinion, we have to say 'be'Dochak' that the Gemara doesn't mean that the Malkos isn't under the Lav of Eidim Zomemim, but just that it is not the typical Hazama punishment. Some bring a proof from the words of the Gemara,?åéù òãéí æåîîéï ùàéï òåùéí áäí ãéï äæîä ëì òé÷ø? , where we can see that the Gemara is still calling them Eidim Zomemim, but they don't get the regular 'Din Hazama'.
Bottom line, your question is better than the answer, but it is not based on a mistake, but rather on the right understanding in the Tosfos, or at least the right one according to many comentators.
Kol Tuv,
Aharon Steiner