1) ADMITTING THAT ONE IS "CHAYAV MISAH"
QUESTION: The Gemara quotes Rava who discusses a case in which two witnesses testified that a person committed murder on Sunday, and then other witnesses came and testified that the first two witnesses were Edim Zomemim, and that the defendant indeed killed, but that he killed on a different day. Rava rules that even if the defendant did kill but was not yet sentenced at the time of the testimony of the Edim Zomemim, the Edim Zomemim are punished with death. Similarly, when two witnesses testified that a person stole an animal and slaughtered or sold it (thus incurring the obligation to pay a penalty of four or five times the principal value) on a certain day, and then those witnesses were found to be Edim Zomemim, even if the defendant indeed stole and slaughtered (or sold) the animal on a different day but was not yet sentenced by Beis Din to pay the penalty (Kenas), the Edim Zomemim are punished by having to pay the Kenas.
RASHI (DH Mai Taima) explains that the Edim Zomemim -- who testified that a person killed -- are Chayav Misah even though the defendant indeed did kill, because at the time of their testimony the killer was not a "Bar Ketala," a man sentenced to die. Testimony about his crime had not yet been accepted in Beis Din, and if he would come and confess his wrongdoing he would be exempt from punishment. Since the Edim Zomemim tried to inflict punishment upon a person who was not fit to be killed, they are punished with death.
What does Rashi mean when he says that the defendant is not a "Bar Ketala" because "if he would admit, he would be exempt"? How does this fact -- that if he would admit to the act, he would be exempt from punishment -- prove that he is not a "Bar Ketala" at present?
ANSWERS: There are two basic approaches in the Acharonim to understanding the words of Rashi.
(a) The CHESHEK SHLOMO cites RAV ELIYAHU RAGOLER who understands that Rashi means that a person who stands before court and admits that he killed is not put to death. Rashi intends to prove that a killer is not a "Bar Ketala," until he is sentenced in court, from the fact that Beis Din does not kill a person even if the person himself admits that he killed. Why does Beis Din not kill him if there is a "Hoda'as Ba'al Din" testifying that he killed? It must be that a killer is not a "Bar Ketala" until his case is brought before Beis Din and the Beis Din sentences him.
There are a number of problems with this approach.
1. How can Rashi prove that the killer is not a "Bar Ketala" from the fact that Beis Din does not kill him based on his admission? Even if a person admits that he was sentenced to death by Beis Din, Beis Din may not kill him based on his admission, and thus, clearly, the reason why he is not killed is not that he has not yet been sentenced, but that the defendant's word is not trusted with regard to matters that pertain to himself. In fact, the Gemara teaches in a number of places (see Sanhedrin 9b) that a person is not believed to harm himself with his own testimony because a person is considered a "relative of himself" and therefore he cannot testify about anything that will cause him harm (and certainly he may not testify on his own behalf about anything that will cause him to gain).
Why, though, does the principle of "Hoda'as Ba'al Din" not provide grounds to believe him when he testifies to his detriment? The answer is -- as Rashi writes in Yevamos (25b, DH v'Ein Adam) -- that "Hoda'as Ba'al Din" pertains only to monetary obligations (Chiyuvei Mamon), but not to obligations of Kenas, to corporal punishments such as Malkus, and to making oneself Pasul l'Edus.
The principle that a person's "Hoda'as Ba'al Din" is accepted is derived from the verse, "Ki Hu Zeh" ((Shemos 22:8), which discusses only monetary obligations. Why, then, does the Gemara in Bava Kama (75a) require a verse to teach that a person cannot obligate himself to pay a Kenas through his own admission? The answer is that a Kenas also involves a transfer of money, and therefore one might have thought that the Halachah of "Hoda'as Ba'al Din" in the case of a Kenas may be derived from the Halachah of "Hoda'as Ba'al Din" in the case of a monetary obligation. The Torah teaches that Halachos that pertain to a Kenas cannot be derived from Halachos that pertain to monetary obligations.
In any case, it is clear from the Gemara that the reason why a person cannot obligate himself to receive a punishment of death is that his testimony about himself is not accepted, and not because he is not a "Bar Ketala" until he is judged in Beis Din.
2. Why does Rashi say that if a person admits to a Chiyuv Misah, then "he would be exempt" -- "Havah Miftar"? Rashi should say instead, "Lo Mechayev" -- "he does not become obligated," since there is no obligation of Misah yet from which he should become exempt. (CHESHEK SHLOMO)
(b) TOSFOS (here and in Zevachim 71a, DH Al Pi), the RITVA, and other Rishonim and Acharonim explain that Rashi here refers to the same principle regarding Kenas to which he refers later (in DH Hachi Garsinan). Rashi means that a person who killed cannot be considered a "Bar Ketala" since he is able to exempt himself from punishment for this crime, forever, by admitting to his crime before he is brought to court. The Gemara mentions such a concept with regard to the laws of Kenas in Bava Kama (75a). The Gemara there teaches that there are two verses that exempt a person from a Kenas when he admits his guilt. The second verse cited there teaches that even if witnesses later come and corroborate his guilt, the defendant remains exempt from paying the Kenas because he admitted to his crime before the witnesses came.
As Tosfos in Bava Kama points out, Rashi follows this opinion elsewhere (Zevachim 71a and Temurah 28a), where he writes that an ox is not put to death for the act of Rove'a or for killing a person when the owner admits, before witnesses come to testify about it in court, that the ox did such an act. This is what the Mishnah means when it says that "an ox is not killed based on the testimony of a single witness, nor on the testimony of the owner." Although the owner's testimony is also that of a single witness, it is still necessary for the Mishnah to state that the ox is not killed based on his testimony in order to teach that the ox is not killed even if witnesses later come and confirm his testimony.
However, there are a number of problems with this explanation as well.
1. The Gemara in Bava Kama cites an argument between Rav and Shmuel regarding whether a person who admits to his crime is exempt from paying a Kenas even after witnesses come. Although Rav rules that he is exempt (as explained above), Shmuel argues and rules that when witnesses come they obligate him to pay the Kenas. The Gemara there, however, does not bring proof to Rav's opinion from the Beraisa that the Gemara here quotes. Why does the Gemara not support Rav's opinion from this Beraisa, and how indeed will Shmuel explain this Beraisa?
The answer to this question seems to be as follows. The Gemara in Bava Kama concludes that according to Shmuel, this Halachah is a Machlokes Tana'im. Shmuel will say that the Tana of this Beraisa maintains that one who admits is exempt even if witnesses come later, while Shmuel himself follows the view of the other Tana who says that one is not exempt if witnesses come later and testify that he is obligated to pay the Kenas. The Gemara there could have proven from this Beraisa that there is a Tana who argues with Shmuel, but it found another proof from a Tana in a different Beraisa.
2. The Gemara in Bava Kama makes it clear that in a case in which a person was already convicted for stealing and then he admits that he also slaughtered or sold the animal, Rav agrees that his admission does not exempt him from payment if witnesses later incriminate him. The Gemara explains that a person's admission exempts him from paying a Kenas only when his admission also causes harm to himself (for example, when he admits that he stole, thereby obligating himself to pay the principal (Keren) of what he stole). The logic for this distinction is clear: if a person could exempt himself from payment without suffering a loss, then every thief would admit to his crime in order to exempt himself from punishment! According to this logic, however, why should a person who admits that he killed be able to exempt himself from punishment? Since he is not harming himself in any way, his admission should not be accepted to exempt himself (in the event that witnesses come later), because every killer will admit to his act in order to exempt himself from punishment. Similarly, anyone whose ox was Rove'a or killed or a person will admit in order to avoid having his ox put to death, since he has nothing to lose by admitting. (TOSFOS)
The CHESHEK SHLOMO answers that the YAM SHEL SHLOMO (Bava Kama 7:26) rules that a person who admits in a way that does not cause himself a loss remains exempt even if witnesses come. When the Gemara says that an admission which does not cause a loss does not exempt the person, it refers to a case in which the defendant first denied his crime (of theft) and then later admitted to the slaughter or sale only after witnesses incriminated him for the theft. In such a case, Beis Din suspects that he admitted to the slaughter or sale only because he became afraid -- once he saw that there were witnesses who testified about the theft itself -- that witnesses would come and testify about the slaughter or sale as well. In other cases, in which a person admits to his crime before any witnesses come, Beis Din assumes that he is telling the truth because he is suffering by giving himself a bad name through his admission that he committed the crime. The same logic would allow his admission to exempt him from a punishment of death, since he is suffering harm through his admission, as he thereby ruins his good reputation. (See Aruch la'Ner, Maharatz Chayos, and others for additional answers.)
(Similarly, in the case of an ox that was Rove'a or that killed a person, the owner's admission will harm him by giving him a bad name, since a person is supposed to watch his ox properly and prevent it from damaging in such ways.)
3. The Gemara in Bava Kama learns from a second verse that a person who admits to his crime becomes exempt from paying the Kenas -- "Im Himatzei Timatzei b'Yado" (Shemos 22:3). That verse refers to Kenas. What, then, is the source that a person can exempt himself from other forms of punishment (such as corporal punishment) through his admission?
Apparently, Rashi learns that the verse of "Im Himatzei Timatzei" reveals how to learn the other verse cited in the Gemara there, "Ki Hu Zeh... Asher Yarshi'un Elokim, Yeshalem" -- "[... or for any kind of lost thing, about which he will say that] this is it, [the cause of both parties shall come before the judges;] and whom the judges shall condemn, he shall pay [double to his neighbor]" (Shemos 22:8). This verse teaches that a person cannot condemn ("Marshi'a") himself, but that he can be condemned only by Beis Din. Although this verse also discusses a Kenas (the payment of "Kefel"), the verse gives a reason for why he may exempt himself from a Kenas through his admission. The reason is that he has made himself look evil; he was "Marshi'a Es Atzmo." The same reason will exempt him from any other punishment that is meant to punish a person for an evil deed. The only time a person will not exempt himself through his admission is when he admits to a monetary obligation, because a monetary obligation is not a punishment for the wickedness of his act, but rather it is a compensation to the other party for the loss that he caused.
The logic of this Halachah, according to Rashi, may be that although a person's repentance cannot exempt him from punishments in the hands of Beis Din after Beis Din sentences him, if a person confesses and repents before Beis Din judges him, he is able to exempt himself from punishment through his Teshuvah. (According to this logic, a person exempts himself from punishment only when he not only admits that he sinned, but he also says that he regrets that he said -- at the time of the Hasra'ah -- that he does not care if Beis Din puts him to death for his act. This also provides support for the answer to the second question above; a person will not become exempt from Misah unless Beis Din sees that he indeed has repented and has done complete Teshuvah.)
2) KILLING MANY SETS OF "EDIM ZOMEMIM" BASED ON THE TESTIMONY OF ONE PAIR OF WITNESSES
QUESTION: The Mishnah (5a) quotes Rebbi Yehudah who says that if one set of witnesses is "Mazim" a hundred other sets of witnesses, making them all into Edim Zomemim, only the first set of Edim Zomemim are killed because it is evident that the pair of witnesses trying to make all of the other pairs into Edim Zomemim are lying. The Gemara asks that if the Mazimim are suspected of lying, then why is the first pair of witnesses put to death?
Rebbi Avahu answers that Rebbi Yehudah in the Mishnah refers to a case in which the first two witnesses were already killed, and the Mishnah teaches that no other sets are killed. The Gemara rejects this answer; the Mishnah teaches nothing new by saying that the first pair was killed already. It should simply say that if one group of Edim Mazimim make many other groups into Edim Zomemim, none of those groups get killed!
Rava answers, therefore, that Rebbi Yehudah in the Mishnah means that when only one set is made into Edim Zomemim, that set is killed. When more sets of witnesses are made into Edim Zomemim by one set of Mazimim, none of them are killed. The Gemara challenges this answer as well. The Mishnah says that "only" the first pair is killed, implying that there are other pairs that were made into Edim Zomemim that are not killed. The Gemara leaves this question unanswered ("Kashya").
The RASHBAM in Bava Basra (127a, DH Kashya) and RASHI in Sanhedrin (72a, DH Kashya) point out that there is a difference between a "Kashya" and a "Teyuvta." A "Kashya" can be answered in some way, while a "Teyuvta" is unanswerable. Since the Gemara concludes only with a "Kashya" on Rava, how indeed does Rava answer this question? (See RITVA.)
ANSWER: Another question may be asked on Rava's explanation of the Mishnah. According to Rava, why does the Mishnah need to teach that when there is only one group of Edim Zomemim, they are put to death? This is the basic, ordinary Halachah of Edim Zomemim! (IMREI BINYAMIN)
The answer might be as follows. TOSFOS in Eruvin (35b, end of DH Amar Rebbi Yirmeyah; and 31a, end of DH Al Machtzeh) writes that, often, when the Gemara presents an answer of one Amora and rejects it with an obvious question and then presents a second answer, the first Amora also meant to say the second answer but did not say it clearly, and the second Amora is explaining what the first Amora meant.
The Chidush of the Mishnah, according to Rava, is that Beis Din is permitted to kill the first set of Edim Zomemim immediately. Beis Din does not have to wait a day or two to see if there will be other witnesses to support the words of the Zomemim, thereby casting doubt on the integrity of the Mazimim. This is what Rebbi Avahu meant to say as well. The Mishnah mentions that the first pair was killed already in order to show that even though Beis Din spares all of the witnesses if corroborating witnesses come before the first witnesses are killed, nevertheless Beis Din does not expect such witnesses to come and thus does not wait for them, but rather Beis Din kills the Zomemim immediately. If other witnesses eventually do come, it will be only after the death of the first set of Edim Zomemim.
The wording of the Mishnah, according to Rava, is to be understood according to the way Rebbi Avahu explains it. The Mishnah is teaching that when a single pair of witnesses are made into Edim Zomemim, Beis Din kills them immediately.
This approach may also answer Tosfos' question on Rashi earlier (2a, DH Kol ha'Zomemin). Tosfos cites Rashi who explains that the words of the Mishnah in Sanhedrin (89a), "Kol ha'Zomemin Makdimin l'Osah Misah," mean that Beis Din does not delay the execution of Edim Zomemim. According to the abovementioned approach, the Mishnah that says "Makdimin l'Osah Misah" may follow the opinion of Rebbi Yehudah, and it teaches that Beis Din does not postpone the execution of the Edim Zomemim to see whether other witnesses will come to support their testimony. (M. KORNFELD)
3) PUNISHING "EDIM ZOMEMIM" ONLY AFTER THE VERDICT HAS BEEN PASSED
QUESTIONS: The Mishnah teaches that Edim Zomemim who testified that a person killed are not punished with death unless they succeeded in having Beis Din issue a "Gemar Din," a death-sentence, for the defendant. The Gemara asks what the source is that this law applies to cases of Edim Zomemim in which the witnesses are not punished with the same punishment that they tried to inflict. It answers that a Gezeirah Shavah of "Rasha, Rasha" teaches that this law applies to Chayavei Malkiyus, and a Gezeirah Shavah of "Rotze'ach, Rotze'ach" teaches that it applies to Chayavei Galuyos.
Why does the Gemara not ask for the source that Edim Zomemim who tried to make a Kohen into a Ben Gerushah are also punished only after a verdict has been passed by Beis Din? Also, why does the Gemara not ask for the source that this law applies to the case of Edim Zomemim who tried to obligate the defendant with a monetary payment (see TOSFOS)? These cases cannot be derived from the Gezeirah Shavah, and thus they need their own source!
Second, why is a source needed to teach this law with regard to Edim Zomemim in the case of Galus? The Gemara in Kesuvos (33a) states that all of the laws that apply to punishments of "Ka'asher Zamam" apply to the case of Galus as well, because of the verse, "Mishpat Echad" (Vayikra 24:22)! (GEVURAS ARI)
Third, Rashi says that one cannot learn from the Gezeirah Shavah of "Rasha, Rasha" that the law of punishing Edim Zomemim only after the "Gemar Din" applies to giving Malkus to Edim Zomemim for testifying falsely that someone is Chayav Galus, because the verse of "Rasha" discusses only Edim Zomemim who are Chayav Malkus for trying to give a person Malkus. What does Rashi mean? That verse does not discuss such a case! The verse of "Rasha" that refers to Malkus of Edim Zomemim is "v'Hayah Im Bin Hakos ha'Rasha" (Devarim 25:2), as Rashi explains earlier (5a), the same verse which teaches that Edim Zomemim are given Malkus in a case of false testimony regarding a Chiyuv Galus! (RITVA, GEVURAS ARI)
(a) TOSFOS answers that the Gemara knows that this law applies to Edim Zomemim in a case of a monetary obligation from the verse, "Yad b'Yad" (Devarim 19:21), which refers to Edim Zomemim in the case of a Chiyuv Mamon. That it applies in a case of a Ben Gerushah is derived from the fact that it applies to a case of Galus, since the verse teaches that it applies to all cases of Edim Zomemim that are not included in the verse "Ka'asher Zamam," as Rashi implies (DH Chayavei Galuyos).
The answer to the second question -- that this law is derived already form the verse of "Mishpat Echad" -- is that this verse teaches only that the laws derived from "Ka'asher Zamam" apply to a case of Ben Gerushah as well. The law that Edim Zomemim are not punished until the verdict is passed is not derived from "Ka'asher Zamam" but from a different verse. Therefore, each type of punishment needs its own source to teach that this law applies to it.
To answer the third question, the RITVA writes that Rashi means that although the verse of "Rasha" refers to the Malkus given to Edim Zomemim in a case of Galus, the simple reading of the verse implies a normal case of Edim Zomemim (this is why the Gemara earlier (2b) calls this verse a "Remez").
(b) The RITVA suggests that the Gemara indeed does not need to mention the Gezeirah Shavah of "Rotze'ach, Rotze'ach" in order to teach that Edim Zomemim in a case of Galus are punished only after the verdict is passed. Once it is known that Edim Zomemim are punished only after the "Gemar Din" in cases of Malkus and Misah, it is also known that the same applies for all other types of Edim Zomemim (perhaps because of the verse, "Mishpat Echad"). The Gemara adds the Derashah of "Rotze'ach, Rotze'ach" because, in a similar Gemara in Sanhedrin (33a), the Gemara records that Derashah after it teaches the Gezeirah Shavah of "Rasha, Rasha." Therefore, the Gemara here mentions it as well, even though it is not necessary.
(c) RABEINU CHANANEL and the GEVURAS ARI suggest that the Gemara's question, "From where do we know that this applies to Chayavei Malkiyus," does not refer to the law of punishing Edim Zomemim only after the passing of the verdict, but rather it refers to the law of "Ein Onshin Min ha'Din." What is the source that "Ein Onshin Min ha'Din" applies to punishments of Malkus? The previously cited verses teach only that no Azharah (an Azharah for a punishment of Kares) or punishment of Misah is derived from a Kal va'Chomer. The Gemara now asks for the source that no punishment of Malkus or Galus is derived through a Kal va'Chomer.