Bekiyut Makkot 2

For the pleasure of all those in Gemara Sem (and anyone else that wishes to read it), I present the first 2015-2016 Bekiyut summary. Enjoy!

Summary:

Mishna-

Mishna’s question: How do Eidim become Eidim Zommemin?

Answer (but it’s not really answering the question): There are 2 cases of Eidim Zommemin when we give malkot instead of “Va’sitem lo Ka’asher zammam la’asot l’achiv” (do to the Eidim Zommemin, as they tried to do to the accused- if you need more clarification, check your 10^th grade Gemara notes).

1.     People testify that someone else is a Ben Chalutza (a Cohain did a sin that makes him worthy to be stripped of his status as a cohain). If the witnesses are found to be false, they would get forty lashes, and not be stripped of their own status as Cohanim, (even though that’s what we would have thought the punishment would be because of Ka’asher Zammam).

2.     People testify that a man is Chayiv Galut and he must go to an Ir Miklat. But if the Eidim are found to be zommemin, they don’t have to go to an Ir Miklat, rather, they get malkot.

Gemara-

What the Mishna should have said is “How do the eidim not become Eidim Zommemin?! (because that is the question that the Mishna is really answering)”

The Mishna on daf 5 describes what zommemin is, but this mishna does not!

The Gemara responds; Rabbi Yehuda Hanasi wrote all of the Mesechtot of Gemara together. Makkot comes right after Sanhedrin. The end of Sanhedrin discusses Eidim Zommemin. This mishna is piggy backing on the last discussion of Sanhedrin, which was discussing “Ka’asher Zammam”.

The end of Sanhedrin was discussing a case when Eidim do not get the punishment of “Ka’asher Zammam”.  (So when the new Masechet starts, it asks the question of “Kaitzad”, because it is asking for other cases when eidim zommemin don’t get the punishment of “Ka’asher Zammam”.)

The Gemara asks another question: From where do we know that we give lashes as a punishment in the first case of the mishna instead of Ka’asher Zammam? The Gemara gives to possible answers:

1. The pasuk says “va’asitem lo….”, but the only people that can be punished with this are the eidim themselves- not their offspring.  But if we were to make the eidim zommemin Ben Chalutzah’s, their children would be affected as well.

Attack: So why don’t we just exclude the children from the punishment of the eidim?

Response: Part of the punishment for the accused would have been to take away his children’s status as Cohanim as well, so we cannot exclude that part of the punishment when punishing the Eidim.

2. Another possible answer: This is a kal v’chomer. If a cohen sleeps with a woman who is forbidden to him, the kids of that relationship become are not valid Cohanim, but he himself is not considered a Ben Chalal. So Kal va’chomer, someone who tried but failed to make someone else a chalal should not become a chalal himself.  

Rejection of this answer: Why does this Kal Vachomer work?! If we rely on this idea, then nobody could ever become an eid zommen because the whole idea of eidim zommin relies on the fact that we did not carry out any punishment on the accused yet.  Just like someone who gets someone else stoned does not get stoned, should we say that someone should get stoned but they were not successful in getting him killed, they should not get killed either?!

You’re right, this Kal VaChomer does not make sense, so we must go back to the first answer.  (we cannot affect their children).

We move onto case #2 of the mishna (a few lines from the top of Amud bet):

How do we know that people who testified falsely about someone deserving of galut only deserve lashes and not to be sent into Galut themselves? The Gemara gives 2 possible answers:

1.     It says in the torah: “he runs to one of the cities”. Only the person who kills by accident has to run to an Ir Miklat, (not the eidim zommemin)

2.     It is a kal vachomer: Had the accused killed it on purpose, he would not be able to run to the Ir miklat. So for sure people that only used words to testify falsely should not have to go to the Ir Miklat!

That is a terrible kal vachomer! If you kill someone on purpose, you cannot go to the Ir Miklat because that would not be enough of a punishment! But maybe it would be a harsh enough punishment for the false witnesses to be sent to the Ir Miklat.

The Gemara responds: You are right, this Kal Vachomer doesn’t make sense. The first answer must be correct.  

New(ish) Topic:

Where does the torah hint to the idea of Eidim Zommemin?

The Gemara responds: Why do you need a hint to the topic of Eidim Zommemin if there are pesukim that explicitly talk about it?!

Response/Question: We must really be asking “How does our mishna know that we would give malkot to Eidim Zommemin if we can’t carry out Ka’asher Zammam?”

Answer: It says in the torah “They exonerate the innocent one and convict the guilty one. Then it will be that if the guilty one is liable to lashes…”

What it means to say that the eidim declared someone to be guilty. Then another group comes and says that the first eidim are wrong. Eidim group #1 would get malkot.

Question: Shouldn’t we say anyway that they get malkot because they testified falsely? (Why didn’t the Gemara just pick a more explicit source?)

We could have easily brought the source “Lo Ta’aneh”

The Gemara responds: This would not have been sufficient because testifying is not an action, so they cannot get malkot for it. (the source for malkot does not come from “lo ta’aneh”)

The Gemara asks another question:

Are there the only exceptions to “ka’asher zammam”?

There are 4 cases: The 2 that were already discussed in the mishna and 2 more.

3.     The Eid Zommem doesn’t have to pay a Kofer if he testified falsely that X person’s ox killed Y person.

4.     An Eid Zommem also doesn’t have to become an Eved Ivri if he testifies falsely that a poor person stole something and the poor person’s punishment would have to become an Eved Ivri.

Rabbi Akiva says that there is a 5^th case:

If the Eid Zommem admits that he is an Eid Zommem before he was caught, he is not killed.

How do we know that Eidim Zommemin do not have to pay back Kofer (case 3)?

Paying is a punishment for atonement of the sin so the Eid doesn’t have to pay because he did not do the sin.

How do we know that the punishment is for atonement and not to pay for the loss caused by the ox?

There is an intricate argument here but bottom line: Rabbanan says that the accused must pay the value of the person who was killed, but Rabbi Yishmael says that he has to pay his own value. Everyone agrees, however, that the accused must pay atonement and not for the loss.

How do we know that Eidim Zommemin don’t become Eved Ivris (case 4)?

An accused person only becomes an Eved Ivri if he does not have enough money to pay for the object that he allegedly stole. So we do not sell that Eidim if they would have had money to pay for the object or if the person that they are accusing has money to pay for the object.  If this is the case, we would have thought that if everyone is poor, the Eidim do get sold.

But this is not the case because you would only get sold as an Eved Ivri if you steal and not because you are an Eid Zommem.

Question for discussion:

The Gemara’s reasoning that Eidim Zommemin do not receive a punishment of “Ka’asher Zamman” when testifying falsely about Galut or stealing (so they only receive Malkot instead of being sent into Galut or becoming an Eved Ivri), is because they did not commit the crimes themselves. Does this reasoning apply when Eidim Zommemin testify falsely about murder as well? The Eidim were not the ones to who allegedly killed someone, so can they really be killed because of “Ka’asher Zammam”?