1) LIABILITY FOR "SHEVU'AS HA'EDUS" IN A CASE OF "KENAS"
QUESTION: The Gemara asks whether the obligation to bring a Korban Shevu'as ha'Edus applies to witnesses who swear falsely that they do not know testimony in a case of a "Kenas" (monetary penalty). The Gemara says that this is no question according to the view of Rebbi Elazar b'Rebbi Shimon, who maintains (Bava Kama 75a) that a person's admission absolves him from the obligation to pay a Kenas ("Modeh b'Kenas Patur") only as long as witnesses do not come and testify that he is obligated. According to Rebbi Elazar b'Rebbi Shimon, the witnesses who falsely swear that they do not know that a person owes a Kenas certainly will be obligated to bring a Korban Shevu'as ha'Edus, because the person's obligation to pay depends upon their testimony.
The Rabanan, however, disagree with Rebbi Elazar b'Rebbi Shimon. They maintain that once a person admits that he owes a Kenas, he is exempt forever, even if witnesses later come and testify that he owes the Kenas. The Gemara is asking whether the obligation of a Korban Shevu'as ha'Edus applies -- according to the Rabanan -- to witnesses who falsely swear that they do not know that a person owes a Kenas (before that person admits that he owes it).
Perhaps the witnesses should not be liable, because their testimony might be worthless: if the defendant admits that he owes the Kenas before they testify, then their testimony cannot obligate him. On the other hand, perhaps they should be liable, because as long as the defendant does not admit to the Kenas, their testimony can obligate him to pay, and thus they should still be liable for withholding testimony.
The Gemara attempts to prove from the Mishnah that denial of testimony about a Kenas obligates the witnesses to bring a Korban. The Mishnah teaches that when witnesses swear falsely that they do not know testimony in a case of Chatzi Nezek (when one's Shor Tam gored the Shor of another person), they are obligated to bring a Korban. According to the opinion that Chatzi Nezek is a Kenas, the Mishnah is a proof that the witnesses are obligated even in a case of Kenas. The Gemara refutes this proof and says that the Mishnah's case of Chatzi Nezek does not refer to a Shor Tam that gored another Shor, but rather to a case of damage done through Tzeroros (damage caused by an animal's body indirectly, such as by kicking up pebbles), which everyone agrees is not a Kenas but an ordinary monetary payment of Chatzi Nezek.
The MISHNEH L'MELECH (Hilchos Geneivah 3:8-9) asks a strong question on the Gemara here from the Gemara in Bava Kama (75a). The Gemara there teaches that the Rabanan's ruling -- that a person's admission exempts him from paying a Kenas even when witnesses later testify that he owes the Kenas -- applies only when his admission also obligates him to pay something. For example, when a person admits that he stole an item, he exempts himself from the Kenas of Kefel (paying back double the value of what he stole), but he obligates himself to pay back the object that he stole. If his admission exempts him entirely, then even the Rabanan agree that his admission that he owes a Kenas exempts him only as long as no witnesses come to testify. If witnesses come to testify that he owes the Kenas, his exemption is no longer binding and he must pay.
According to the Gemara there, what is the proof of the Gemara here that the Rabanan maintain that witnesses must bring a Korban Shevu'as ha'Edus in a case of Kenas? If they deny testimony in a case in which their testimony would have obligated the defendant to pay both a Kenas and an ordinary monetary payment, then they should be obligated to bring a Korban Shevu'as ha'Edus for withholding testimony about the monetary payment. If, on the other hand, they deny testimony in a case in which their testimony would have obligated the defendant to pay only a Kenas, then they should be obligated to bring a Korban Shevu'as ha'Edus because their testimony would have obligated the defendant to pay the Kenas, since his admission would not have exempted him after they testify.
Moreover, why does the Gemara refute the proof by saying that the Mishnah refers to a case of Tzeroros? Even if it refers to a case of a Shor Tam that gored (in which case the obligation to pay Chatzi Nezek is a Kenas), the Rabanan still would rule that he is obligated to pay when witnesses come because his admission includes no obligation to pay any ordinary monetary compensation.
(a) The MISHNEH L'MELECH points out that when the Gemara in Bava Kama states that the exemption from paying Kenas through admission applies only when one's admission also obligates him to pay something, it is addressing the view of Rav. (Rav disagrees with the Gemara here and maintains that Rebbi Elazar b'Rebbi Shimon agrees with the Rabanan that a person who admits to a Kenas remains exempt from paying; the argument involves a different point.) According to Shmuel, though, perhaps the Rabanan exempt a person who admits to a Kenas even after witnesses come, and even if the person does not obligate himself to pay something through his admission.
The Mishneh l'Melech himself points out, however, that this answer is not consistent with the view of the RAMBAM, who cites (in Hilchos Shevu'os 9:4) the conclusion of the Gemara here (that witnesses who deny knowing testimony do not bring a Korban in a case of Kenas, since the person could admit that he owes the Kenas and thereby render their testimony useless) even though he rules in accordance with Rav.
The SHA'AR HA'MELECH (Hilchos Avadim 5:17) adds that the Mishneh l'Melech has no basis whatsoever to presume an argument between Rav and Shmuel about whether the Rabanan exempt a person after witnesses come only if he obligated himself, or even if he did not obligate himself at all. Their argument pertains to an unrelated matter (that is, whether or not Rebbi Elazar b'Rebbi Shimon agrees that when a person admits to a Kenas he remains exempt after witnesses come). Why should one assume that they also argue about when the Rabanan exempt a person after witnesses come?
(b) The MEROMEI SADEH offers a different explanation for the Gemara in Bava Kama. When the Gemara there says that the Rabanan agree that one is obligated to pay the Kenas when witnesses testify after his admission in a case where his admission does not obligate him to pay anything, it refers to a case in which there is another monetary obligation. In a case where there is only a Kenas and no other obligation (such as Chatzi Nezek), the person's admission does exempt him even after witnesses come. This explains why witnesses who deny knowing testimony about a Kenas in a case in which their testimony would obligate the defendant to pay only a Kenas (and nothing else) do not have to bring a Korban. This also explains why the Gemara here says that the case of Chatzi Nezek in the Mishnah is a case of Tzeroros. (See the YAM SHEL SHLOMO, as cited in Insights to Makos 5:1, for a similar explanation of the words of Rashi there.)
2) THE DIFFERENCE BETWEEN A "HARSHA'AH" AND A "SHALI'ACH"
QUESTION: The Mishnah states that when witnesses deny knowing testimony about matters that involve one's personal status (such as whether he is a Kohen, Levi, Ben Gerushah, or Ben Chalutzah), they are not obligated to bring a Korban Shevu'as ha'Edus. The Gemara explains that they are exempt because testimony about a person's status is not a monetary matter, and the laws of Shevu'as ha'Edus apply only to testimony about monetary matters. This implies that denying testimony that even indirectly involves a monetary obligation would obligate the witnesses to bring a Korban Shevu'as ha'Edus. For example, when an uninvolved party makes witnesses swear that they do not know testimony about a loan that took place between two other people, those witnesses may be obligated to bring a Korban Shevu'as ha'Edus.
The Gemara asks that this contradicts the Mishnah later (35a). The Mishnah states that when witnesses are told by a Shali'ach of the plaintiff to come and testify on his behalf and they swear that they do not know testimony, they are not obligated to bring a Korban. In order to be obligated to bring a Korban, the witnesses must deny knowing testimony to the plaintiff himself. According to that Mishnah, denial of testimony to a third party, even about a monetary matter, does not obligate the witnesses to bring a Korban. However, according to the Mishnah here, the witnesses should be obligated, because the testimony that they are denying involves a monetary matter.
Shmuel resolves this contradiction by saying that when the witnesses deny knowing testimony to a third party who has a Harsha'ah (see Insights to 31:1), they are obligated to bring a Korban. The Mishnah later refers to a third party who has no Harsha'ah.
This answer is difficult to understand. What difference does having a Harsha'ah make? The Gemara in Bava Kama (70a) says that a Harsha'ah works because the recipient of the Harsha'ah becomes a Shali'ach of the plaintiff. If this is the power of a Harsha'ah, then what is the difference between having a Harsha'ah and being a Shali'ach?
(a) The RA'AVAD answers that there are different forms of Harsha'ah. The form of Harsha'ah to which Shmuel is a Harsha'ah which makes the agent an actual partner of the plaintiff in the monies being sought. Consequently, the agent indeed is the plaintiff. The Gemara itself in Bava Kama mentions this power of Harsha'ah.
(b) Alternatively, the Ra'avad answers that when the Mishnah later says that a witness' denial of testimony to a Shali'ach cannot obligate him to bring a Korban, it refers to a Shali'ach who is appointed only to administer an oath to the witness. Such a Shali'ach is not considered the representative of the plaintiff; rather, he is the plaintiff's vehicle for administering the oath. Such a Shali'ach cannot obligate the witness to bring a Korban. If, however, a person represents the plaintiff in the case, then when the witness denies testimony to that person he is obligated to bring a Korban Shevu'as ha'Edus. A Harsha'ah, which works like a Shali'ach, is also capable of obligating the witness.
The RITVA rejects the Ra'avad's answers. If the Ra'avad's first explanation was Shmuel's intention, then Shmuel should have said that the Mishnah -- which implies that the witnesses are obligated -- refers to a case in which the plaintiff made the person his partner, and not to a case in which the person comes with a Harsha'ah. (Although one form of Harsha'ah makes him a partner, this is not the normal form of Harsha'ah and thus it is unlikely that Shmuel would have used the word in this way.)
The Ritva also rejects the Ra'avad's second explanation (that when the Mishnah later mentions a Shali'ach, it refers only to one appointed to administer a Shevu'ah, and not to a full representative of the plaintiff). Here, too, the word "Shali'ach" is not being used in its usual way; the simple meaning of "Shali'ach" is a full representative of the sender. If Shmuel meant what the Ra'avad says, then he should have differentiated between a Shali'ach appointed merely to administer a Shevu'ah and a full Shali'ach. Moreover, the Gemara asks a question from the statement of Neharda'i, who rule that a Harsha'ah is not written for monetary matters. According to the Ra'avad, Shmuel could have answered that the agent (in the case of the Mishnah here) is a full Shali'ach, without mentioning a "Harsha'ah."
(c) The RITVA answers that when the Gemara in Bava Kama (70a) says that a Harsha'ah works because the person becomes a Shali'ach of the plaintiff, it does not refer to all aspects of a Harsha'ah. The Gemara there discusses a specific case in which the person holding the Harsha'ah seized money or goods from the defendant. The plaintiff wrote in his Harsha'ah (according to the Ritva's text; see RASHI in Bava Kama there for other opinions) that "anything that comes from this case should be given back to me." This means that the agent does not keep any of the money he retrieves; he is not a partner but a Shali'ach. The Ritva explains in the name of the RAMAH that the Harsha'ah allows the Shali'ach only to use the money as a loan for thirty days, before he returns it to the owner. (See also RAMBAN in Milchamos, page 27b of the pages of the Rif.) The Gemara in Bava Kama discusses only the rights of the Shali'ach to the money that he retrieved. The Gemara does not mean that a person who comes with the power of a Harsha'ah is considered merely like a Shali'ach. Rather, he is considered like the plaintiff himself. Shmuel's answer emphasizes that difference.
(d) TOSFOS answers that in the context of the Mishnah here, a Harsha'ah refers to a Shali'ach who is given the power to extricate money from the defendant, as opposed to an ordinary Shali'ach who is merely a representative of the plaintiff.
According to Tosfos, the word "Shali'ach" usually refers to an agent who does not have the power to extricate money, while an agent with the power of a Harsha'ah does have that power. (This explains why the Gemara questions Shmuel's answer from the law that a Harsha'ah is not written for monetary matters.) (Y. MONTROSE)