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Makos 2

1) "EDIM ZOMEMIM" WHO TESTIFIED THAT A KOHEN WAS A "BEN GERUSHAH"

QUESTION: The Mishnah states that when Edim (witnesses) testify that a Kohen is a Ben Gerushah (the son of a divorced woman married to a Kohen), we do not punish the Edim by giving each one the status of a Ben Gerushah. Rather, we give them Malkus.

The wording of the Mishnah implies that the only punishment the Edim receive is a single set of Malkus; they receive no other punishment.

Why do they receive no other punishment? The Edim should also be required to pay the Kohen for all of the Terumah and other Matnos Kehunah that he will not be able to receive due to their testimony! (RISHONIM)

ANSWERS:

(a) The RASHBA, cited by the RITVA, explains that it is unlikely that the Torah would require the Edim Zomemim to be punished with a punishment that has yet to be determined. The verse "Ka'asher Zamam" (Devarim 19:19) refers only to a specific punishment that the witnesses would have caused the defendant to receive had they succeeded with their plot. Since the amount of Terumah that the Kohen will receive is not yet determined at the time of the trial, the Torah does not intend that the Edim Zomemim receive the punishment that will be determined only with the passing of time, when people give their Terumah to the Kohen. Therefore, the Edim do not have to pay for the loss of the Matnos Kehunah that they tried to cause him. (See ARUCH LA'NER.)

(b) The RAMBAN answers that at the time of the court case, it was not at all certain that the Kohen would ever receive Terumah or Matnos Kehunah in the future. Therefore, the loss of Matnos Kehunah is not a definite effect of the Edim's testimony, but rather it is an indirect consequence (a "Gerama"). The verse says that the Edim Zomemim must be punished for "what they plotted to *do*" ("Ka'asher Zamam *la'Asos*"), and not for what they plotted *to cause*.

Why does the Rashba not give the same answer as the Ramban?

The Ramban and Rashba seem to argue about why the Torah prescribes a punishment of "Ka'asher Zamam" for Edim Zomemim. The Ramban maintains that the purpose of the punishment is to deter Edim from testifying falsely. (This is why the testimony of witnesses is invalid if the witnesses cannot be made into Edim Zomemim -- "Edus sh'Iy Atah Yachol l'Hazimah.") The deterrent for the testimony must be adjusted in accordance with the potential results of the testimony. Testimony which could harm the defendant in a more severe way tempts the witnesses more strongly to testify falsely, and therefore it needs a more powerful deterrent. Therefore, it suffices for the deterrent of "Ka'asher Zamam" to be equivalent to what the witnesses *thought* they were going to accomplish with their testimony. Since the witnesses could not be certain that their testimony would harm the defendant with regard to causing him to lose the Matnos Kehunah (because perhaps no one will offer it to him), their intention was only to disqualify the Kohen from being able to perform the Avodah in the Beis ha'Mikdash.

The Rashba, on the other hand, understands that the Torah prescribes a punishment of "Ka'asher Zamam" because it is the most appropriate form of justice that can be applied. By punishing the Edim with a punishment of "Ka'asher Zamam," the witnesses suffer in exact proportion to the suffering which they intended to cause to the defendant. Consequently, the punishment should not depend on what the witnesses knew for certain that the defendant would suffer from; rather, if we now determine that the defendant would have suffered in an additional way, then we should now apply that additional punishment to the witnesses. That is why the Rashba asserts that had it not been for the fact that the loss of Matnos Kehunah is an undetermined sum, we would have made the witnesses pay each time the Kohen receives Matnos Kehunah.

This understanding of the argument between the Ramban and Rashba might explain another argument between the Rishonim. RASHI writes that when the Mishnah says that we do not give the Edim the status of a Ben Gerushah, it is referring to Edim who are Kohanim (because if the Edim are not Kohanim, it is obvious that they only receive Malkus). The RITVA, however, says in the name of TOSFOS that we might have thought that even when the Edim are not Kohanim they should be punished by being treated like Benei Gerushah by making their daughters and wives unfit to marry Kohanim.

Rashi might understand the punishment of Edim Zomemim like the Ramban; its purpose is to deter the Edim from lying. Hence, when the witnesses themselves will not be affected by the testimony, but only their wives and children will become invalid from marrying Kohanim, it will not deter them from lying if their lie will have a potentially much greater effect on the Kohen. Therefore, the Mishnah would not have assumed that we apply the punishment of "Ka'asher Zamam" in such a manner.

The Tosfos, however, might learn like the Rashba, and holds that the punishment of Edim Zomemim is merely a punishment that fits the crime. If the witnesses are not Kohanim and cannot be made into Benei Gerushah themselves, nevertheless the punishment would still fit the crime if we consider them to be Benei Gerushah with regard to their wives and daughters.

(c) TOSFOS, cited by the Ritva, explains that we cannot obligate the Edim to pay for the Matnos Kehunah for the same reason we cannot make the Edim into Benei Gerushah. The Gemara says that the witnesses do not become Benei Gerushah, because we cannot allow their testimony to affect the status of their children, and if, on the other hand, we make them Benei Gerushah without it affecting their children, then we are not applying "Ka'asher Zamam" in full; the punishment of Ka'asher Zamam" cannot be applied partially. Similarly, if we cannot make the witness himself into a Ben Gerushah, we also cannot obligate him to pay for the Matnos Kehunah either, since that would be a partial application of "Ka'asher Zamam."

Why do the Ramban and Rashba not suggest this seemingly simple answer?

Perhaps the Ramban and Rashba maintain that the Gemara's logic can be applied only when we split a single punishment, creating a new "half-punishment" (for example, we cannot make the Edim into Benei Gerushah whose children will be permitted to marry Kohanim). However, the punishment of paying for Matnos Kehunah is a second punishment that is entirely separate from the punishment of making the Edim into Benei Gerushah. That punishment can be applied in full and, in itself, it is not a half-punishment.

QUESTION: The Mishnah states that when Edim testify that a Kohen is a Ben Gerushah (the son of a divorced woman married to a Kohen) or that he is a Ben Chalutzah (the son of a woman who had performed Chalitzah with her brother-in-law and then married a Kohen), we do not punish the Edim by giving each one the status of a Ben Gerushah or the status of a Ben Chalutzah. Rather, we give them Malkus.

Why does the Mishnah require that Edim Zomemim receive Malkus when they testify falsely that a Kohen is a Ben Chalutzah? Being a Ben Chalutzah is not a Pesul mid'Oraisa and it does not blemish the Kohen's status in any way mid'Oraisa! While it is true that the Rabanan would probably administer Malkus mid'Rabanan to witnesses who testify falsely that a Kohen is a Ben Chalutzah, the Mishnah, though, is teaching us Halachos that apply mid'Oraisa! Why, then, should the Mishnah teach its Halachah with regard to a Ben Chalutzah, in which the testimony of the witnesses has no effects mid'Oraisa?

ANSWERS:

(a) The RAMBAN and RITVA answer that the Mishnah mentions Ben Chalutzah only tangentially to Ben Gerushah, since the two are commonly paired together (see TOSFOS to Makos 13a, DH Gerushah).

(b) The Acharonim (REBBI AKIVA EIGER, ARUCH LA'NER, EINAYIM LA'MISHPAT, P'NEI YEHOSHUA) suggest that there is a simpler answer to this question. Even if the Ben Chalutzah is not Pasul mid'Oraisa, nevertheless, since the Rabanan instituted that a Ben Chalutzah cannot perform the Avodah in the Beis ha'Mikdash, the testimony of the witnesses affects the validity of the Kohen. Since someone is suffering as a result of their testimony, "Ka'asher Zamam" should be applied even mid'Oraisa, and the Edim should receive Malkus even mid'Oraisa.

In addition, there is a Lo Ta'aseh prohibiting witnesses from testifying falsely even when the testimony does *not* harm another person, according to the RAMBAN (Devarim 5:17). Accordingly, Malkus mid'Oraisa should be administered even when the witnesses testify that a Kohen is a Ben Chalutzah.

Why do the Ramban and Ritva not suggest this approach?

Perhaps the Ramban and Ritva were bothered by the wording of the Mishnah which states that we do not make the witnesses into Benei Chalutzah in retribution for attempting to make the defendant a Ben Chalutzah. Even if we administer Malkus to a person who testifies that a Kohen is a Ben Chalutzah, it is clear that the verse, "va'Asisem Lo Ka'asher Zamam la'Asos" (Devarim 19:19), cannot be referring to such testimony, since such testimony (that a Kohen is a Ben Chalutzah) would have been meaningless at the time that the Torah was given at Har Sinai.

Although this answer suffices for the Ritva, it does not suffice for the Ramban. The Ramban writes clearly that *no* Malkus (mid'Oraisa) is administered to Edim Zomemim who testified that a Kohen is a Ben Chalutzah. Why, though, should there be no Malkus, if the witnesses attempted to harm the Kohen through their testimony?

Some Acharonim suggest that the punishment of Malkus is administered only for giving false testimony for which the witnesses *could* have received a punishment of "Ka'asher Zamam" (i.e. the identical punishment which they tried to inflict) had the Torah not excluded that punishment (such as when they testify that someone is Chayav Galus or that he is a Ben Gerushah). It does not apply to other forms of false testimony. However, the Gemara in Bava Kama (74b) teaches that when Edim testify that someone killed Reuven and then Reuven walks into court, the Edim would be given Malkus for the Isur of "Lo Sa'aneh" (if not for the problem of Lav she'Nitan l'Azharas Misas Beis Din").

Perhaps the Ramban's reasoning is that the Torah does not consider the attempt to make a Kohen into a Ben Chalutzah to be an attempt to cause harm to a person. This is because a Ben Chalutzah may perform the Avodah, according to the Torah.

We find a similar concept in Sukah (23b). The Gemara there teaches that the Torah requires that a Sukah be fit to be used even on Shabbos in order to be a valid Sukah on Chol ha'Mo'ed. The Gemara says that, according to Rebbi Meir (whose opinion is the Halachah), if entering the Sukah on Shabbos involves only an Isur d'Rabanan, the Sukah may still be used during Chol ha'Mo'ed, since the Torah considers it a valid Sukah even though the Rabanan prohibit it from being used. Similarly, the Torah considers a Ben Chalutzah to be fit to perform the Avodah, even though the Rabanan do not permit him to perform the Avodah. (See ARUCH LA'NER, and see TOSFOS to Kesuvos 29a, DH Elu.)

Regarding the Lav of "Lo Sa'aneh" (Shemos 20:13), the Gemara (2b) teaches that it is a "Lav she'Ein Bo Ma'aseh." We punish the Edim Zomemim with Malkus only because the Torah specifically assigns Malkus to the sin of false testimony in the verse of "v'Hitzdiku" (Devarim 25:1). However, that verse is not discussing "Edus Shav" (testimony which does not harm a person), but rather it is discussing "Edus Sheker" (testimony which *does* harm a person). Therefore, there is no source to assign a punishment of Malkus to the sin of saying false testimony that does not cause harm.

2b

QUESTIONS: The Gemara (2a) quotes Bar Pada who suggests a Kal v'Chomer to explain why we do not punish Edim Zomemim -- who testified falsely that a Kohen is a Ben Gerushah -- by making them into Benei Gerushah. Similarly, the Gemara (2b) quotes Rebbi Yochanan who suggests a Kal v'Chomer to explain why we do not punish Edim Zomemim -- who testify that a person is Chayav Galus -- by sending them to Galus.

Bar Pada's Kal v'Chomer is that since a Kohen who lives with a Gerushah, making the child born from that union into a Chalal, does not himself become a Chalal, then certainly a witness who merely plotted to make a Kohen into a Chalal (but did not succeed) should not be made into a Chalal. Ravina rejects this Kal v'Chomer, saying that such logic would refute the entire law of Edim Zomemim, since Edim Zomemim who succeeded in killing their victim are not punished with death, while Edim Zomemim who plotted to kill but did not succeed *are* punished with death.

Rebbi Yochanan makes a similar Kal v'Chomer with regard to Galus. If someone who actually kills b'Mezid (intentionally) is not sent to Galus, then one who only attempts to kill b'Mezid is certainly not sent to Galus. The Gemara refutes this Kal v'Chomer, saying that perhaps there is more reason to send Edim Zomemim to Galus for *attempting* to kill someone, because Galus is a Kaparah (atonement), and since they did not actually kill, they are entitled to a Kaparah.

Why does the Gemara refute each Kal v'Chomer with a different argument? It would seem that the two arguments can be applied in both cases to refute both Kal v'Chomers!

(a) The first Kal v'Chomer can be refuted in the same manner as the second one by saying that a person who merely attempted to make a Kohen into a Ben Gerushah should be made into a Ben Gerushah as a punishment so that he will attain Kaparah!

(b) The second Kal v'Chomer can be refuted with the same logic that refutes the first Kal v'Chomer, as the ARUCH LA'NER asks, by showing that it contradicts the entire basis of the concept of Edim Zomemim -- a person who merely attempted to kill is punished *more* than a person who succeeded in killing!

ANSWERS:

(a) The refutation to the second Kal v'Chomer cannot be used to refute the first Kal v'Chomer for the following reason. Making the witness a Ben Gerushah would be a *punishment* and not a *Kaparah*. It is only Galus which the Gemara considers to be a Kaparah, because its main effect is not physical or financial suffering as is the case with other punishments; rather, the Galus (and the death of the Kohen Gadol) protects the unintentional murderer from the Go'el ha'Dam.

(According to this explanation, the reason why the Torah does not punish Edim Zomemim who succeeded in their plot is not because the Torah does not want them to have a Kaparah, as the P'NEI YEHOSHUA writes. Rather, killing the Edim would be a punishment and not a Kaparah.)

(b) The basic concept of Edim Zomemim does not refute the second Kal v'Chomer. From the laws of Edim Zomemim, we can prove only that there are times when the Torah wants to be more lenient with (and acquit) a person who accomplishes a sinful act, even though it punishes a person who merely plots a sinful act and does not accomplish it. In the case of a person who kills b'Mezid, the Torah does not want to be lenient with the killer, since we see that when he receives Hasra'ah he is punished with death. Accordingly, it is not logical to suggest that if he kills *without* Hasra'ah, the Torah will be more lenient with him because his act was done b'Mezid (since the Torah *does* punish an act done b'Mezid in the case of a murderer). (M. Kornfeld)

QUESTION: The Gemara says that Edim Zomemim do not pay Kofer, because Kofer is a Kaparah and Edim Zomemim are not "Benei Kaparah."

Why are the Edim not "Benei Kaparah?" If they attempted to obligate a person to do an act that attains Kaparah, then the punishment for their false testimony should be that they must attain Kaparah for their false testimony in the same way (by paying Kofer)! (RISHONIM)

ANSWERS:

(a) The RITVA and TOSFOS SHANTZ suggest that a person is never given an opportunity to do an act to attain Kaparah for a sin done intentionally. Since the Edim Zomemim sinned intentionally, they cannot be given an action to perform in order to attain Kaparah.

We may question this explanation from the Halachah of the Korban Asham Shifchah Charufah (Vayikra 19:20-22; Kerisus 9a; see Background to Kidushin 23:11b). A person who intentionally lives with a Shifchah Charufah is obligated to bring a Korban Asham. According to the Ritva, when Edim testify that a person is obligated to bring a Korban for living with a Shifchah Charufah, they *should* be obligated to bring a Korban. Since that Korban is brought to atone for a sin that was done intentionally, it should also atone for their sin, that was done intentionally, of giving false testimony.

TOSFOS, cited by the RITVA, questions further why the Gemara earlier suggests that Edim Zomemim would have been Chayav Galus if not for the verse that teaches otherwise. Galus is also a Kaparah, as the Gemara says, and Edim Zomemim cannot be given an act of Kaparah as their punishment!

Tosfos answers that Galus itself is not a Kaparah. Rather, it is a punishment; we are allowing the Go'el ha'Dam to kill the unintentional murderer if he steps outside of the Ir Miklat. The Kaparah to which the Gemara refers is the fact that when the Kohen Gadol dies, the unintentional murderer will be able to leave the Ir Miklat.

(b) The RAMBAN explains that Beis Din does not obligate a person by force to pay money to attain Kaparah. The Gemara in Bava Kama (40a) concludes that we do not force a person to pay up his obligations of Kofer (as the Ritva says). The money that a person pays for Kaparah is merely his own responsibility if he wants to exempt himself from Misah bi'Ydei Shamayim that he would otherwise suffer as punishment for the fact that his ox killed a person. The obligation of Misah bi'Ydei Shamayim is also not brought about by the testimony of the witnesses when they testify that the defendant's ox killed a person and the defendant is Chayav to pay a Kofer: if his ox *did* kill a person, then whether or not the owner of the ox is brought to court he will be punished with Misah b'Ydei Shamayim. If the ox did *not* kill, then whether or not the owner is brought to court he will *not* be punished with Misah b'Ydei Shamayim. Therefore, a punishment administered by Shamayim is not dependant upon the testimony of witnesses in any way.

This is what the Gemara means when it says that the Edim Zomemim are not "Benei Kaparah." It means that the witnesses do not need a Kaparah since they did not create any obligation upon the defendant. They did not create an obligation of Misah b'Ydei Shamayim, because his ox did not kill in reality, and even if it did, their testimony would not create the obligation of Misah b'Ydei Shamayim. They also did not create an obligation to pay money, because Kofer is the responsibility of the defendant himself if he wants to attain atonement, and it is not an obligation enforced by the Beis Din.

According to the Ramban, the difference between Galus and Kofer is clear. Even if going to Galus is a Kaparah, nevertheless it will be enforced by Beis Din through the permission that they give to the Go'el ha'Dam to kill the defendant if he does not go to Galus.

This also explains why Edim Zomemim will never be obligated to bring a Korban as their punishment for testifying falsely. When they testify that a person is obligated to bring a Korban, their testimony does not *create* an obligation on the person; rather, it is the person's own duty to bring a Korban if he wants to attain Kaparah.

In addition, this explains why the Mishnah does not list Kofer as one of the exceptions to the rule of Edim Zomemim, while the Beraisa does list it. The Mishnah is listing only cases of Edim Zomemim who are not punished with "Ka'asher Zamam" (i.e. the punishment that they attempted to inflict) but who *are* punished with Malkus. In a case in which the Edim testify falsely that a person is obligated to bring a Korban or to pay a Kofer, they have not actually caused any loss to the defendant through their testimony, and therefore they will not even be punished with Malkus. (Although it is true that it is prohibited by the Torah to give false testimony even when no one is harmed as a result of the testimony, nevertheless the witnesses will not receive Malkus through such testimony (as we mentioned in Insight #2 above).)

QUESTION: The Beraisa adds two more cases, besides those mentioned in the Mishnah, of Edim Zomemim who do not receive the same punishment that they attempted to inflict. When the Edim testify falsely that a person is obligated to pay a Kofer, they are not punished with "Ka'asher Zamam" by having to pay a Kofer themselves. When Edim testify falsely that a person was sold as an Eved Ivri, they are not punished by being sold as an Eved Ivri.

We explained earlier (see previous Insight) why, according to the RAMBAN, the Mishnah does not include the case of Kofer. According to TOSFOS, the Mishnah dos not list the case of Kofer because it is an obvious Halachah that is learned through logic and does not need a source in a verse, and the Mishnah is listing only those Halachos that we learn from a verse. However, why does the Mishnah not list the Halachah of testifying that a person was sold as an Eved Ivri?

According to Rav Hamnuna, the answer to this question, too, is that this Halachah is derived through logic and does not need a verse, and therefore the Mishnah does not need to list the case of Eved Ivri. Moreover, the Halachah that Edim Zomemim are not sold as slaves is not absolute, because, according to Rav Hamnuna, the Edim sometimes *are* sold as slaves (such as in a case in which the defendant has no money, and the Edim also have no money). However, according to Rava, we learn that Edim Zomemim cannot be sold as slaves from a verse. Why, according to Rava, does the Mishnah not include this Halachah in its list of cases of Edim Zomemim who are not punished with the same punishment that they attempted to inflict? (RITVA)

ANSWERS:

(a) The RITVA suggests that perhaps the only reason why the Mishnah lists these two cases (of Edim who testify falsely that a Kohen is a Ben Gerushah or Ben Chalutzah, and Edim who testify false that a person is Chayav Galus) is because the Mishnah later, in the second Perek, discusses Galus, and in the third Perek discusses the Halachah of a Ben Gerushah. This answer, however, is somewhat forces ,

(b) The GEVURAS ARI suggests that even according to Rava, when the Edim have money and the defendant does not have money, the witnesses will be obligated to pay and will not receive Malkus. They may claim that "if you would have had money, then you would have paid, and therefore we may also pay." The Edim will receive Malkus only when they have no money and the defendant has no money. Since the Edim are supposed to be punished with "Ka'asher Zamam" but they cannot be sold as slaves (as the verse teaches), they therefore are punished with Malkus. However, the Edim can exempt themselves from Malkus by saying that they want to wait until they get money and then they will pay. Consequently, they will never receive Malkus since they can always delay it by demanding more time to get money. This is why the Mishnah does not list this case among the other cases in which the Edim Zomemim receive Malkus instead of being punished with the punishment that they attempted to inflict.

(c) The RAMBAM describes the case of Edim who testify falsely about the defendant being an Eved Ivri differently than the way the Gemara explains the case. The Gemara explains that the Edim testify that the defendant stole money which he could not repay and therefore he should be sold as an Eved Ivri. The Rambam explains that the Edim testify that the defendant was sold as an Eved Ivri.

Apparently, the Rambam understands that the Beraisa includes *both* cases when it says that Edim Zomemim are not sold as slaves (because of the verse quoted by Rava).

According to the Rambam, it is clear why the Mishnah does not list Edim Zomemim who testify falsely about a person's status as an Eved Ivri. The Mishnah does not mention a number of other cases of Edim testifying falsely about a person's status, such as when Edim testify that a person is a Mamzer, or that he is an Amoni, even though the Beraisa (cited by Tosfos on 2a) mentions those cases and says that the Edim Zomemim receive Malkus. The reason why the Mishnah does not state the case of Eved Ivri, or any of the other cases of testimony about a person's status, is because these cases are included in the case of Ben Gerushah. That case includes all cases in which Edim testify falsely that a person's status is blemished. Since the Mishnah includes the Halachah of the Rambam's case of Eved Ivri (i.e. false testimony about a person's status), it does not deem it necessary to list the case of Eved Ivri separately merely in order to teach the other case of Eved Ivri (when Edim testify falsely that a person stole money and therefore should be sold as an Eved Ivri).