KESUVOS 33 (Shmini Atzeres) - l'Iluy Nishmas Chaim Noach ben ha'Chaver Reb Yehudah (Kruskal). Dedicated by his son and family.

QUESTION: Rebbi Eliezer explains that Edim Zomemim are not punished with Malkus for testifying falsely because they cannot be warned with Hasra'ah.
Rava explains that it is impossible to give a valid Hasra'ah to Edim Zomemim because they can claim that they forgot the Hasra'ah by the time they gave their testimony and the court case concluded. They cannot be warned immediately before they testify, because such a warning would discourage potential witnesses from testifying in Beis Din altogether. RASHI (DH Parshi) explains that witnesses will not bother to come to Beis Din to testify if they are warned every time they come; they will prefer to avoid the discomfort of being suspect of lying. Giving them Hasra'ah after they have testified is meaningless, because "what has happened has already happened." Rashi (DH Mai) explains that this refers to the principle of "Keivan she'Higid Shuv Eino Chozer u'Magid" -- a witness may not change his testimony once he has already testified in Beis Din (see Kesuvos 18b).
Rava's explanation -- that potential witnesses will abstain from testifying if they are given Hasra'ah before they testify -- apparently contradicts the Mishnah in Sanhedrin (29a). The Mishnah explicitly states that witnesses are warned not to testify falsely immediately before they testify. The Gemara there discusses various statements which Beis Din uses to warn the witnesses about the severity of the punishment given to false witnesses. (The RAMBAM, Hilchos Edus 17:2, notes that this warning is given even to witnesses who testify about a monetary matter.) Why does Rava say that Beis Din does not warn witnesses immediately before they testify, lest potential witnesses be discouraged from testifying?
(a) The RITVA answers that the warning normally given to witnesses is a general statement about the prohibition against false testimony. Rava means that no policy of warning witnesses with a specific threat (for example, in a capital case, "If other witnesses testify that you are Edim Zomemim, you will be put to death") can be instituted, because it certainly would scare away all witnesses.
However, Rashi (DH Parshi) implies that the witnesses' reluctance to testify is not due to fright about facing the death penalty, but rather they merely want to avoid the hassle of being suspected of lying. How does Rashi reconcile Rava's statement with the Mishnah in Sanhedrin?
(b) The SHITAH MEKUBETZES explains that Rashi understands that the Mishnah in Sanhedrin refers to Hasra'ah given long before the witnesses testify. Such a Hasra'ah serves no purpose, however, because the witnesses can claim that they forgot the Hasra'ah by the time they gave their testimony, as Rava here explains. The Gemara here, in contrast, refers to Hasra'ah given immediately before the witnesses testify. Rashi explains that when they are warned immediately before they testify, the witnesses will feel that Beis Din does not trust them and they will not bother to testify.
The Shitah Mekubetzes discusses the exact moment at which the witnesses are warned. He cites the RAMBAM (Hilchos Edus 17:2) who implies that the warning is usually given long before the testimony. However, in cases of capital punishment, the Rambam (Hilchos Sanhedrin 12:3) rules that Beis Din warns the witnesses immediately after the witnesses testify that they gave Hasra'ah to the defendant before he committed his offense. How is this apparent contradiction in the words of the Rambam to be reconciled?
The Shitah Mekubetzes explains that although Beis Din warns the witnesses during their testimony about the severity of testifying falsely, at the same time Beis Din encourages the witnesses to testify. After some words of warning, Beis Din urges the witnesses to fulfill their Torah obligation to testify. Beis Din also tells the witnesses that they should not be concerned about causing the death of the accused, because "when the wicked perish there are songs of joy" (Mishlei 11:10).
However, according to the explanation of the Shitah Mekubetzes, the original question returns. Why does Beis Din not warn every witness at the time he testifies, and immediately afterwards give him words of encouragement to testify? Why does Rava say such a Hasra'ah is not possible? The Shitah Mekubetzes answers that such encouragement would constitute too large of an interruption between the Hasra'ah and the witnesses' testimony, and the witnesses again would have the ability to claim that they forgot the warning. (Y. MONTROSE)


QUESTION: Rav Shisha (33a) teaches that a person who injures his friend must pay money and does not receive Malkus. He derives this from the verses (Shemos 21:22-5) which imply that if one intends to kill his friend but instead injures a pregnant woman and causes her to miscarry, he must pay the woman's husband for the loss of the embryo. Rav Shisha quotes Rebbi Elazar who says that the verses clearly state that if the attacker would have killed the woman, he would have been put to death (see Rashi, DH ha'Kasuv). If he would have been put to death, then he must have received a valid Hasra'ah (warning) before his act, because without Hasra'ah he would not receive corporal punishment in Beis Din.
Since the offender was warned not to attack and he attacked anyway, he should be punished with Malkus for the injury he caused to the woman. Rav Shisha maintains that when one who warned not to do an act of a severe sin which includes a less severe sin, the warning is valid for the less severe sin as well. Accordingly, although the offender did not succeed in killing anyone, the warning he received ("do not kill") includes a warning not to hit anyone, and thus he should receive Malkus for hitting the pregnant woman. Nevertheless, the verses state that he only pays for injuries (for the miscarriage) and does not receive Malkus.
Rav Ashi disagrees with this proof for two reasons. Perhaps there is no such principle that Hasra'ah for a severe punishment automatically includes Hasra'ah for a light punishment (and thus there is no Hasra'ah for Malkus in the case of the man who hits a woman and kills her embryo). Moreover, even if there is such a principle, what is the source that capital punishment is more severe than Malkus? Perhaps Malkus is considered more severe than death. This is apparent from Rav's statement that had Chananyah, Misha'el, and Azaryah been tortured, they would have bowed down to the statue of Nevuchadnetzar (see Daniel 3:18).
Why does Rav assume that they would have bowed down to the statue if they would have been tortured? Chananyah, Misha'el, and Azaryah were Tzadikim, and they certainly would have given up their lives and suffered any form of torture in order to avoid bowing down to an idol, as the Torah requires (see Berachos 61a, Pesachim 25b).
(a) TOSFOS (DH Ilmalei) cites RABEINU TAM who answers that the statue was not an actual idol that was worshipped. Rather, it was a statue made in honor of the king. Nevertheless, not bowing down towards the statue in honor of the king still constituted a Kidush Hash-m. Although Chananyah, Misha'el, and Azaryah chose to be thrown into the furnace to avoid bowing down to the statue, they would not have undergone torture to avoid such an act. Rabeinu Tam proves that the statue was not one worshipped as Avodah Zarah from the verse, "To your god we will not bow down, and to your golden statue that you have erected we will not bend" (Daniel 3:18), which implies that the statue itself was not treated as a god by Nevuchadnetzar.
The TOSFOS HA'ROSH cites proof for Rabeinu Tam's explanation from the Gemara in Pesachim (53b). The Gemara asks, "What did they see that they let themselves be thrown into the furnace?" The Gemara answers that they learned this conduct from the frogs in Mitzrayim, which jumped into the ovens in sanctification of Hash-m's name. If the statue would have been a genuine idol of Avodah Zarah, why would the Gemara ask, "What did they see...?" It would have been obvious why they chose to give up their lives, as they were faced with the cardinal sin of idolatry! Rather, it must be that the Gemara knows that they were not faced with actual idolatry, and therefore it needs to find a source for their conduct.
Why, though, did they choose to give up their lives when they were not obligated to do so? The RAMBAN (cited by the Shitah Mekubetzes) explains that the common people mistakenly thought that the statue was Avodah Zarah, and therefore they maintained that they were obligated to give up their lives for Kidush Hash-m. The Ramban adds that he found support for this approach in the "Midrash Chazis." The Midrash relates that when Yechezkel told them to hide so that they not be killed, they chose not to hide but instead to allow themselves to be killed "so that people should say that all of the nations -- except for the Jewish people -- bowed down to the statue."
(b) Alternatively, the Ramban answers that Rav does not mean literally that Chananyah, Misha'el, and Azaryah would have worshipped the statue. Rather, Rav exaggerates in order to emphasize how difficult it is to undergo torture, and that torture is worse than death. (This explanation answers Tosfos' question on Rabeinu Tam. Tosfos asks that the words of the Gemara ("they would have worshipped the idol") imply that the statue indeed was Avodah Zarah. According to the Ramban, the statue was Avodah Zarah. Rav does not mean that they actually would have worshipped it had they been tortured.)
(c) RABEINU ELIEZER (cited by the Shitah Mekubetzes) explains that Rav indeed means that they would have bowed down to the statue, and that the statue indeed was Avodah Zarah. The Torah requires that one give up his life in order not to worship Avodah Zarah; the Torah does not require that one be tortured indefinitely in order not to worship Avodah Zarah. Although the Torah requires that one suffer a slower death in order not to worship Avodah Zarah (like the death of Rebbi Akiva, as related in Berachos 61a), it does not require that one suffer indefinitely. The Shitah Mekubetzes agrees with this explanation. (D. BLOOM)