By Tashlumin by Eidim Zomimim, when they pay is it an Onesh or a
Chiyuv Tashlumin?
What's the difference:
1: If Reuven and Shimon became Eidim Zomimim for a chiyuv of $200, so each has to pay $100.
What if Reuven offers to pay for Shimon?
What if Levi offers to pay for each one?
If it's an Oneish then perhaps each one HAS to pay on their own $100.
But if it's just a chiyuv Tashlumin, than why can't someone else pay for them?
Moshe Usher
Reb Moshe Usher, it is great to hear from you again!
1) This is a Machlokes between the Chachamim and Rebbi Akiva in Makos 2b. The Gemara cites a Beraisa about four things said concerning Edim Zomemim. The Beraisa adds that it was said in the name of Rebbi Akiva that they also do not pay if they confess their crime. Near the end of 2b, the Gemara states that Rebbi Akiva's reasoning is that the Tashlumin of Edim Zomemim is a Kenas, a fine, and one does not pay a Kenas if one admits to it ("Modeh b'Kenas Patur").
We see more clearly in the Gemara on 3a that there indeed is an opinion that disagrees with Rebbi Akiva. There, at one stage, the Gemara attempts to explain the ruling of Rav by saying that the scenario he refers to is where the Edim say that "we testified and were rendered Zomemim in such-and-such a Beis Din." The Gemara immedately declares that if this is the case that Rav is referring to, then it is in disagreement with Rebbi Akiva. We see from here that Rebbi Akiva's opinon is not unaminous. The other opinion is that of the Chachamim, who maintain that what Edim Zomemim are obligated to pay is a Chiyuv Tashlumin.
2) Most Rishonim rule like Rebbi Akiva, including the Rambam (Hilchos Edus 18:8, Teshuvas ha'Rashba 2:284), and the Tur (Choshen Mishpat 38:4). However, there are some Poskim who appear to side with the Chachamim who say that it is a Chiyuv Tashlumin. See Bi'ur ha'Gra to Choshen Mishpat 1:21, who writes that a few Sugyos prove that the Halachah does not follow Rebbi Akiva.
3) The classic difference between the opinion of the Chachamim and of Rebbi Akiva is when the Edim admit that they are Zomemim, as we have seen above. However, I did not understand your Nafka Mina, Reb Moshe. If Reuven offers to pay for Shimon, or Levi offers to pay for both of them, this merely means that Reuven or Levi are giving a present to the guilty Edim. They would give the present to the Edim, and the Edim would pay to the Beis Din, even if it is an Onesh. This still means that the Edim are the ones who paid.
B'Hatzlachah Rabah,
Dovid Bloom
Yasher Koach Rabbi Bloom.
I read what you wrote. Very interesting about Shitas Rabbi Akiva.
When you write: "We see more clearly in the Gemara on 3a that there indeed is an opinion that disagrees with Rebbi Akiva...."
I don't hear totally the proof from here. To me it was the opposite. The Gemara proposed a 'P'shat' and right away knocked it down since it went against Rabbi Akiva. If there was a "choleik" on Rabbi Akiva, then the Gemara's answer would not be so strong. The Gemara could have retorted, "Yes, It's not like Rabbi Akiva, but Rav holds like the Chachomim." It would seem that Rabbi Akiva is fully accepted.
But on Daf Dalet Umud Beis, the Gemara seems to say that Rabbi Yehudah does not hold like Rabbi Akiva. In fact Tosfos talks whether that means that Rabbi Akiva does not hold like Rabbi Yehuda. So here we may have a shita not like Rabbi Akiva.
2: Going back to my question, I thought about what you wrote.
To make sure I want to go over my question.
A & B said Eidus against C that C owes D $100.
E & F are Mazim A & B. They owe now owe C, $100.
Levi wants to go over to C and him directly pay the $100.
My question was since no money came out of the pocket of A or B, they didn't PAY to C anything.
If Levi's paying C is considered indirectly like he gave A or B a gift, so then what you are saying is accurate, that it makes no difference.
Or since A and B never took the money to give to C, it was given
directly to C, is that a gift to A or B? Or is Levi just exempting them, and if so, and it's not a gift, then are they "Yotzei" their Chyuv of "Ka'asher Zomam" if a third party paid and they experienced no "pain" to their wallet.
It could be that what you already answered this, but I want to make sure we are talking apples and apples.
Gut Shabbos
1) Reb Moshe, I think you were Zocheh to be Mechaven to the Beis Yosef on one point, but on one point not!
I am referring to the Beis Yosef on the Tur, Choshen Mishpat 38:4. The Tur writes that when the Edim who were found to be Zomemim have to pay, this is a fine; therefore, if they confess they are exempt.
One of the sources that the Beis Yosef cites for the Tur, that the Halachah follows the view of Rebbi Akiva, is from the Sugya on 3a. The Beis Yosef writes that since the Gemara immediately declares that this disagrees with Rebbi Akiva, this suggests that the Halachah follows Rebbi Akiva.
It seems to me that the Beis Yosef agrees with what you write, that since the Gemara did not say that the statement of Rav is indeed not like Rebbi Akiva because Rav holds like the Chachamim, this suggests that Rebbi Akiva's view is accepted.
However, we also see from the Beis Yosef that there is an alternative opinion to Rebbi Akiva -- namely, the Chachamim, because otherwise -- if nobody argued with Rebbi Akiva -- it would not have been necessary for the Beis Yosef to write that the Halachah follows Rebbi Akiva. Therefore, we see that there is a Cholek on Rebbi Akiva.
2) We have to understand what it means when we say that Levi goes to C and pays him directly the $100. Why can C not claim that what he received from Levi is simply a present, and has no connection with A & B, and therefore C still can demand payment from A & B?!
Presumably it must be that Levi makes some statement to the effect that he is explicitly paying on behalf of A & B, but I find it difficult to imagine how Levi can ensure that C has no more claims on A & B without A & B actually paying the money. This is why it is reasonable to assume that, in effect, Levi is giving the $100 to A & B and they then pass it on to C.
Reb Moshe, thank you for your very thoughtful input!
Dovid Bloom
By Tashlumin by Eidim Zomimim, when they pay is it an Onesh or a
Chiyuv Tashlumin?
What's the difference:
1: If Reuven and Shimon became Eidim Zomimim for a chiyuv of $200, so each has to pay $100.
What if Reuven offers to pay for Shimon?
What if Levi offers to pay for each one?
If it's an Oneish then perhaps each one HAS to pay on their own $100.
But if it's just a chiyuv Tashlumin, than why can't someone else pay for them?
The Kollel replies:
>>Reb Moshe Usher, it is great to hear from you again!
1) This is a machlokes between Chachomim and Rabbi Akiva in Makos 2b. The Gemara cites a Beraisa about 4 things said concerning Eidim Zomemim. The Beraisa adds that it was said in the name of Rabbi Akiva that they also do not pay if they confess their crime. Near the bottom of 2b the Gemara states that R. Akiva's reasoning is that the tashlumin of Eidim Zomemim is a knas; a fine; and one does not pay a knas if one admits to it oneself.
We see more clearly in the Gemara, below 3a, that there is indeed an opinion that disagrees with R. Akiva. There, at one stage, the Gemara attempts to explain the din of Rav by saying that the scenario referred to is where the Eidim say that we testified and were rendered Zomemim in such and such a Beis Din. The Gemara immedately declares that if so this disagrees with R. Akiva. We see from here that R. Akiva's opinon is not unaminous. The other opinion is that of Chachomim, who maintain that what Eidim Zomemim are obliged to pay is a Chiyuv Tashlumin.
2) Most Rishonim pasken like R. Akiva. This is the shittah of the Rambam Hilchos Edus 18:8, Teshuvas Rashba 2:284 and the Tur Choshen Mishpat 38:4. However there are some Poskim who appear to side with the Chachomim that it is a chiyuv tashlumin. See Biur HaGra Shulchan Aruch Choshen Mishpat 1:21 who writes that a few sugyas prove that the Halacha does not follow R. Akiva.
3) The classic difference between the opinion of Chachomim and of R. Akiva is when the Eidim admit that they are Zomemim, as we have seen above. However I did not understand your nafka mina, Reb Moshe. If Reuven offers to pay for Shimon, or Levi offers to pay for both of them, this merely means that Reuven or Levi are giving a present to the guilty Eidim. They would give the present to the Eidim, and the Eidim would pay to the Beis Din. This still means that the Eidim paid up.<<
Moshe Reinitz asks:
>>Yasher Koach Rabbi Bloom.
I read what you wrote. Very interesting about Shitas Rabbi Akiva.
One of the things I pasted below-
"We see more clearly in the Gemara, below 3a, that there is indeed an opinion that disagrees with R. Akiva. There, at one stage, the Gemara attempts to explain the din of Rav by saying that the scenario referred to is where the Eidim say that we testified and were rendered Zomemim in such and such a Beis Din. The Gemara immedately declares that if so this disagrees with R. Akiva. We see from here that R. Akiva's opinon is not unaminous."
I don't hear totally the proof from here. To me it was the opposite. The Gemara proposed a 'P'shat' and right away knocked it down since it went against Rabbi Akiva. If there was a "choleik" on Rabbi Akiva, then the Gemara's answer would not be so strong. The Gemara could have retorted, "Yes, It's not like Rabbi Akiva, but Rav holds like the
Chachomim." It would seem that Rabbi Akiva is fully accepted.
But on Daf Dalet Umud Beis, the Gemara seems to say that Rabbi Yehudah does not hold like Rabbi Akiva. In fact Tosfos talks whether that
means that Rabbi Akiva does not hold like Rabbi Yehuda. So here we may have a shita not like Rabbi Akiva.
2: Going back to my question, I thought about what you wrote.
To make sure I want to go over my question.
A & B said Eidus against C that C owes D $100.
E & F are Mazim A & B. They owe now owe C, $100.
Levi wants to go over to C and him directly pay the $100.
My question was since no money came out of the pocket of A or B, they didn't PAY to C anything.
If Levi's paying C, is considered indirectly like he gave A or B a gift, so then what you are saying is accurate, that it makes no difference.
Or since A and B never took the money to give to C, it was given
directly to C, is that a gift to A or B? Or is Levi just exempting them, and if so, and it's not a gift, then are they "Yotzei" their Chyuv of "Ka'asher Zomam" if a third party paid and they experienced no "pain" to their wallet.
It could be that what you already answered this, but I want to make sure we are talking apples and apples.<<
The Kollel replies:
>>1) Reb Moshe, I think you were Zocheh to be Mekaven to the Beis Yosef on one point but on one point not!
I am referring to the Beis Yosef on the Tur Choshen Mishpat 38:4. The Tur writes that when the Eidim who were proved to be Zomemim have to pay, this is a fine; therefore if they confess they are exempted.
One of the sources that the Beis Yosef cites for the Tur, that the Halacha follows R. Akiva, is from the sugya in 3a. Beis Yosef writes that since the Gemara immediately declares that this disagrees with R. Akiva, this suggests that the Halacha follows R. Akiva.
It seems to me that Beis Yosef agrees with what you write that since the Gemara did not say that the statement of Rav is indeed not like R. Akiva because Rav holds like Chachomim, this suggests that R. Akiva is accepted.
However one sees from the Beis Yosef that there is an alternative opinion to R. Akiva; namely the Chachomim, because otherwise it would not be necessary for Beis Yosef to write that the Halacha follows R. Akiva, if there was nobody who argued with R. Akiva. Therefore there is a cholek on R. Akiva.
2) We have to understand what it means when we say that Levi goes to C and pays him directly the $100. Why can C not claim that what he received from Levi is simply a present, and has no connection with A&B, and therefore C can still demand payment from A&B?!
Presumably it must be that Levi makes some statement to the effect that he is explicitly paying on behalf of A&B, but I find it difficult to imagine how Levi can ensure that C has no more claims on A&B without A&B actually paying the money. This is why I thought that in effect Levi is giving the $100 to A&B and they then pass it on to C.
Reb Moshe, thank you for your very thoughtful input.<<
Rabbi Bloom:
Your answer with the Beis Yosef is beautiful. That is a beautiful
'diyuk' in the words of the Beis Yosef and we see there was a need to declare the Halacha like Rabbi Akiva etc as you said. Thank you.
As far as the case with A & B, we can let it rest. Perhaps there are ways that Levi can insure that C won't come back to A & B. Perhaps C draws up a 'shtar' or Levi pays in Beis Din and explicitly says that C is getting paid for A & B. And perhaps these are not good answers.
I thank you for responding to my inquiries.