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1) WHEN WE CANNOT PUNISH KA'ASHER ZAMAM

(a) (Mishnah): How are witnesses (punished when found to be) Zomemim (i.e. when we hear (from other witnesses) that at the time they claimed to have seen the testimony they were elsewhere)? (This question will be explained.)
(b) If two witnesses testify that Ploni (a Kohen) is the son of a Gerushah (divorcee) or Chalutzah (which means that he is a Chalal (a disqualified Kohen), and they were Huzmu), we do not say that the witness becomes a Chalal, rather, he receives 40 lashes. (Whenever we say 40 lashes, it really refers to 39).
(c) If two witnesses testify that Ploni must be in Galus (a refuge city, for killing someone b'Shogeg, and they were Huzmu), we do not say that the witness must be in Galus, rather, he receives 40 lashes.
(d) (Gemara) Question #1: The Mishnah should say 'How are witnesses *not* punished (with the same judgment they tried to inflict on Ploni) when found to be Zomemim?
(e) Question #2: A later Mishnah explicitly teaches how witnesses become Zomemim!

1. (Mishnah): But if the latter witnesses said 'How can you testify about this? That day, you were with us in a different place', the former witnesses are Zomemim.

(f) Answer: Our Mishnah is a continuation of the Mishnah at (according to our text - near) the end of Sanhedrin, which says 'Edim Zomemim always receive the Misah they plotted to impose on the Nidon (the one being judged), except when they falsely testified about a Bas Kohen and her adulterer', (they are choked, even though she is burned);

1. There are other Edim Zomemim that are not punished even close to "Ka'asher Zamam (as he plotted)", rather, they just receive 40 lashes;
2. If witnesses testify that Ploni is a Ben Gerushah or Ben Chalutzah, we do not say that the witness becomes a Chalal, rather, he receives 40 lashes.

(g) Question: What is the source of this?
(h) Answer #1 (R. Yehoshua ben Levi): "Va'Asisem *Lo* Ka'asher Zamam" - to him, not to his descendants (if the witness would become a Chalal, this would disqualify his descendants).

1. Question: We should say that he becomes a Chalal, but his children are Kesherim!
2. Answer: This is not "Ka'asher Zamam" (he plotted to disqualify Ploni *and* Ploni's descendants).

(i) Answer #2 (Bar Pada): A Kal va'Chomer teaches this - a Kohen who is Mechalel (by having relations with a Gerushah, he makes her a Chalalah) does not become a Chalal - one (i.e. an Ed Zomem) who tried but failed to Mechalel, all the more so he does not become a Chalal!
(j) Rejection (Ravina): If so, always (Rashi; Tosfos - often) we cannot kill Edim Zomemim!

1. Version #1 - Rashi: Edim Zomemim who stoned Ploni (through their testimony) are not stoned (they are exempt)- all the more so, Edim Zomemim who tried to stone but failed (they were Huzmu before Ploni was executed) should not be stoned!
2. Version #2 - Tosfos: A murderer who stoned is (beheaded, a lenient death, he is) not stoned - all the more so, Edim Zomemim who tried to stone but failed should not be stoned!

(k) We must rely on Answer #1.
(l) (Mishnah): If two witnesses testify that Ploni must be in Galus...
(m) Question: What is the source of this?
(n) Answer #1 (Reish Lakish): "*Hu* Yanus (one who killed b'Shogeg)" - not Edim Zomemim.
(o) Answer #2 (R. Yochanan): A Kal va'Chomer teaches this - a murderer, who does an action, is not exiled if he was Mezid (even if he is not killed) - Edim Zomemim, who did not do an action, all the more so they are not exiled even though they were Mezidim!
(p) Objection: There, the severity of the case is the very reason why the Kal va'Chomer does not apply!

1. Because a murderer did an action, he is not exiled if he was Mezid, for he is not worthy of Kaparah (atonement) - Edim Zomemim did not do an action, even though they were Mezidim they are exiled, in order to get Kaparah!

(q) We must rely on Reish Lakish's answer.

(a) Question (Ula): Where does the Torah hint about Zomemim witnesses?
(b) Objection: The Torah explicitly discusses them - "Ka'Asher Zamam"!
(c) Correction: Rather, where does the Torah hint that Zomemim witnesses are lashed (when we cannot apply to them what they plotted to do to the subject of their testimony, e.g. if they testified that he is a disqualified Kohen)?
(d) Answer: "V'Hitzdiku Es ha'Tzadik v'Hirshi'u Es h'aRasha...";

1. Question: Acquitting the innocent is not a condition for (lashing the Rasha, the continuation of the verse) "V'Hayah Im Bin Hakos ha'Rasha"!
2. Answer: Rather, the case is that (Zomemim) witnesses caused a Tzadik to be convicted, and other witnesses (Mezimim) showed that he was truly a Tzadik and that the first witnesses were Resha'im, "V'Hayah Im Bin Hakos ha'Rasha".
3. Question: Why don't we learn from "Lo Sa'aneh"?
4. Answer: That is a Lav without an action, one is not lashed for such a Lav.

(a) (Beraisa): These four laws apply to an Ed Zomem:

1. He cannot become a Ben Gerushah or Ben Chalutzah;
2. He cannot be exiled;
3. He does not pay Kofer (ransom, for the owner of a Mu'ad animal that killed someone);
4. He is not sold to be a slave.

(b) R. Akiva adds, he need not pay based on his own admission.
(c) Above, we gave the source of the first two laws;
(d) The Tana exempts from Kofer - he holds that Kofer is a Kaparah (for one who did not guard his animal - this does not apply to Edim Zomemim);

1. Question: Which Tana holds that Kofer is a Kaparah?
2. Answer (Rav Chisda): R. Yishmael, son of R. Yochanan ben Brokah.

i. (Beraisa - R. Yishmael, son of R. Yochanan ben Brokah): "V'Nasan Pidyon Nafsho" (he will give redemption of his soul)" - the value of the victim;
ii. R. Yishmael says, the value of the animal's owner.

(e) (Beraisa): Edim Zomemim are not sold to be slaves.
(f) (Rav Hamnuna): This is only if (they testified that Ploni stole, and) Ploni has money (to pay for his theft, so he would not have been sold) - but if Ploni has no money, even if they have money, they are sold.
(g) Objection: The Zomemim should be able to say, Ploni would not have been sold - the same applies to us, since we have money, we are not sold!
(h) Correction (Rav Hamnuna): Rather, if Ploni or the witnesses have money, they are not sold - but if neither of them have money, they are sold.
(i) Rejection (Rava): "V'Nimkar bi'Gnevaso" - not for his false testimony.
(j) (Beraisa - R. Akiva): He need not pay based on his own admission.
(k) Question: What is R. Akiva's reason?
(l) Answer: He holds that "Ka'asher Zamam" is a ke/, one does not pay ke/ based on his own admission.
(m) Support #1 (Rabah): It must be a ke/ - they did not do an action, yet they are killed.
(n) Support #2 (Rav Nachman): It must be a ke/ - the Nidon did not lose his money, yet they pay.
(o) Question: That is just like Rabah answered, they pay even though they did not accomplish anything!
(p) Answer: Indeed, it should say that Rav Nachman gave the same support that Rabah did.