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Makos, 5

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 in fact 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 becoming obligated to pay a penalty of four or five times the principle 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 person 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 by saying 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 Rashi to be saying that a person who stands before court and admits to killing is not put to death. Rashi means 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 should we 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.

However, there are a number of problems with this approach. First, how can Rashi prove that the killer is not a "Bar Ketala" from the fact that we do not kill him based on his admission? Even if a person admits that he was *sentenced to death* by Beis Din, we do not kill him based on his admission, and thus, clearly, the reason he is not killed is not because he has not yet been sentenced, but because we do not trust the defendant's word 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 to be 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, do we not believe him when he testifies to his detriment with the principle of "Hoda'as Ba'al Din?" 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, nor to making oneself Pasul l'Edus.

The principle of believing a person's "Hoda'as Ba'al Din" is derived from the verse, "Ki Hu Zeh" ((Shemos 22:8), which is discussing 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 we might have thought that the Halachah of "Hoda'as Ba'al Din" in the case of a Kenas can be learned from the Halachah of "Hoda'as Ba'al Din" in the case of a monetary obligation. The Torah teaches that we cannot derive Halachos that pertain to a Kenas 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 because we cannot accept his testimony, and not because he is not a "Bar Ketala" until he is judged in Beis Din.

Second, 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! (CHESHEK SHLOMO)

(b) For this reason, TOSFOS (here and in Zevachim 71a, DH Al Pi), the RITVA, and other Rishonim and Acharonim explain that Rashi here is referring 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, nevertheless the defendant is 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 that the ox did such an act, before witnesses come to testify about it in court. 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." Even though 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 to confirm his testimony.

However, there are a number of problems with this explanation as well.

1. First, 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 holds that he is exempt, as we have explained, 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 our Gemara quotes. Why does the Gemara not support Rav's opinion from this Beraisa, and how 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 this Tana maintains that one who admits is exempt even if witnesses come later, while Shmuel himself holds like 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 our 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 *principle* (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, 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! Likewise, 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 we find 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 is referring 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, we suspect 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, we assume that he is being honest because he is suffering through his admission by giving himself a bad name by admitting 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. (Other Acharonim suggest other answers. See Aruch la'Ner, Maharatz Chayus, and others.)

(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 is referring to Kenas. From where, then, do we learn that a person can exempt himself from *other* forms of punishment (such as corporal punishment) through his admission?

It seems that Rashi learns that the verse of "Im Himatzei Timatzei" is revealing to us 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. Even though this verse is also discussing a Kenas (the payment of "Kefel"), the verse is giving a reason for why he exempts himself from a Kenas through his admission. The reason is because he has made himself look evil; he was "Marshi'a Es Atzmo." That same reason will exempt him from any other punishment that is meant to punish an evil deed. The only time a person will not exempt himself through his admission is when he admits with regard to a monetary obligation, because the 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.

It seems that the logic of this Halachah, according to Rashi, is that even though a person's Teshuvah cannot exempt him from punishments in the hands of Beis Din after Beis Din sentences him, nevertheless if a person confesses and does Teshuvah before Beis Din judges him, he is able to exempt himself from punishment through his Teshuvah. (According to this, a person only exempts himself from punishment when he not only admits that he sinned, but he also says that he regrets having 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 our answer to the second question; a person will not become exempt from Misah unless Beis Din sees that he indeed has repented and has done complete Teshuvah.)

5b

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 we suspect that the Mazimim are lying, then we should not even kill the first pair!

Rebbi Avahu answers that Rebbi Yehudah in the Mishnah means that if we already killed the first one, then no other sets are killed. The Gemara rejects this answer, asking that if the first pair was killed already, then what is the Mishnah teaching us by mentioned that they were killed? 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, then that set is killed. When more sets of witnesses are made into Edim Zomemim by one set of Mazimim, then 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 as a question ("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 an unanswerable. Since the Gemara's question on Rava's answer is only a "Kashya," how will Rava answer this question? (See RITVA.)

ANSWER: We may ask another question 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. We find that TOSFOS (Eruvin 35b, end of DH Amar Rebbi Yirmeyah; Eruvin 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 we are permitted to kill the first set of Edim Zomemim immediately, and we do not have to wait a day or two to see if there will be other Edim 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 says that the first pair was already killed in order to show that even though we spare all of the Edim if corroborating witnesses come before we kill the first set of Edim, nevertheless we do not *expect* such witnesses to come and thus do not wait for them, but rather we kill the Zomemim immediately. If other witnesses do come eventually, 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 explained according to the way Rebbi Avahu explained it. The Mishnah is teaching that when there is a single pair of witnesses who are made into Edim Zomemim, we kill them immediately.

This might 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 we do not delay killing Edim Zomemim. According to what we have explained, the Mishnah that says "Makdimin l'Osah Misah" might be following the opinion of Rebbi Yehudah, and it is teaching that we do not postpone the killing of the Edim Zomemim to see whether other witnesses will come to support them. (M. Kornfeld)

QUESTIONS: The Mishnah teaches that Edim Zomemim who testified that a person killed are not punished with death unless succeeded in having Beis Din issue a "Gemar Din" sentencing the defendant to death. The Gemara asks what the source is that this law applies to cases of Edim Zomemim in which the Edim are not punished with the same punishment that they tried to inflict. It answers that there is a Gezeirah Shavah of "Rasha, Rasha" which teaches that this law applies to Chayavei Malkiyus, and a Gezeirah Shavah of "Rotze'ach, Rotze'ach" which 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 do we need a source to teach this law with regard to Edim Zomemim in a case of a Galus? The Gemara in Kesuvos (33a) states that all of the Halachos that apply to punishments of "Ka'asher Zamam" apply to a case of Galus as well, because of the verse, "Mishpat Echad" (Vayikra 24:22)! (GEVURAS ARI)

Third, Rashi says that we cannot learn from the Gezeirah Shavah of "Rasha, Rasha" that the law of punishing Edim Zomemim only after the "Gemar Din" applies to a case of giving them Malkus for testifying falsely that someone was Chayav Galus, because the verse of "Rasha" is discussing only Edim Zomemim who are Chayav Malkus for trying to give a person Malkus. What does Rashi mean? That verse is *not* discussing 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), which is the same which teaches that Edim Zomemim are given Malkus in a case of false testimony regarding a *Chiyuv Galus*! (RITVA, GEVURAS ARI)

ANSWERS:

(a) TOSFOS answers that the Gemara knows that this law applies to Edim Zomemim in a case of monetary obligation from the verse, "Yad b'Yad" (Devarim 19:21), which is referring to Edim Zomemim in the case of a Chiyuv Mamon. We learn that it applies in a case of a Ben Gerushah from the fact that it applies to a case of Galus, since the verse is teaching 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 our second question -- that this law is already learned form the verse of "Mishpat Echad" -- is that this verse teaches only that the laws are learned 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 learned 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 answer our third question, the RITVA writes that Rashi means that although the verse of "Rasha" is referring to the Malkus given to Edim Zomemim in a case of Galus, nevertheless 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 we know that Edim Zomemim are punished only after the "Gemar Din" in cases of Malkus and Misah, we also know 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 making the Gezeirah Shavah of "Rasha, Rasha." Therefore, the Gemara here inserts it as well, even though it is not necessary.

(c) RABEINU CHANANEL and the GEVURAS ARI suggest that the Gemara's question here, "From where do we know that this applies to Chayavei Malkiyus," is not referring to the law of punishing Edim Zomemim only after the passing of the verdict, but rather it is referring to the law of "Ein Onshin Min ha'Din." How do we know that "Ein Onshin Min ha'Din" applies to punishments of Malkus? From the previously cited verses we know only that we do not derive an Azharah (an Azharah for a punishment of Kares) or a punishment of Misah from a Kal v'Chomer. The Gemara is now asking how we know that we do not give a punishment of Malkus or Galus through a Kal v'Chomer.