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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

Makos 2

MAKOS 2 - dedicated in memory of Nachum ben Shlomo Dovid Mosenkis Z"L (whose 63rd Yahrzeit occurred on 23 Teves 5763) by his son, Shlomo Dovid (Sid) Mosenkis of Queens N.Y.

Please note that unless otherwise indicated, we follow the explanation of Rashi. Consequently, our notes and comments do not necessarily have any bearing on the practical Halachah.



(a) Our Mishnah discusses how witnesses become Zomemin, which means (exclusively) - that other witnesses claimed that they (the first pair) had been with them in a different location at the time that they claimed to have seen the act taking place.

(b) If they did, assuming that they testified a. that Reuven, a purported Kohen, is the son of a divorcee or of a Chalutzah; b. that Shimon is Chayav Galus ...

1. ... one would expect them to be declared - a. sons of a divorcee (assuming that they too, are Kohanim), and b. to have to flee to one of the cities of refuge.
2. ... they will actually receive Malkos, according to our Mishnah.
(c) The witnesses would know that the Kohen was the son of a divorcee - only if they added that she had been divorced in their presence before the defendant's birth (i.e. conception).
(a) What is strange about the Tana's Lashon "Keitzad he'Eidim Na'asin Zomemin' is - the fact that, bearing in mind that an Eid Zomem is called that only by virtue of the fact that he receives the same punishment as they wished to mete to others, our Mishnah ought to have then asked 'Keitzad Ein ha'Eidim Na'asin Zomemin?'

(b) Moreover - we learn the genuine Din of Zomemin Mishnah a little later 'Aval Amru Lahem He'ach Atam Me'idin ... '. So what is the purpose of this Mishnah?

(a) In answer to these questions we connect our Mishnah to a Mishnah in 'Eilu Hein ha'Nechnakin'. The Mishnah states there - that all Zomemin receive the same Miysah (or other punishment) that they intended the defendant to receive, with the exception of Zomemei bas Kohen and her Bo'el (who receive Chenek instead of Sereifah).

(b) And our Mishnah adds - that whereas there the Din Hazamah is changed only slighty from what it ought to be, here we a case where the Din Hazamah is not carried out at all (the second case in the Mishnah will be discussed later).

(c) Rebbi Yehoshua ben Levi extrapolates the Din in our Mishnah from the Pasuk "va'Asisem Lo Ka'asher Zamam La'asos le'Achiv" - "Lo", 've'Lo ve'Lo le'Zar'o (and if we were to carry out the Din Hazamah, then all their descendants would be unishmed, too).

(d) We cannot simply declare the witnesses Pasul and not their children - because that would not be properly fulfilling "Ka'asher Zamam".

(a) bar Pada learns the Din in our Mishnah from a 'Kal va'Chomer' from the 'Mechalel' - (the Kohen who married the divorcee, causing their children to be Chalalim). Because if he does not become Pasul (a Chalal), how can the witnesses, who only *attempted* to render the son Pasul, should certainly not become themselves Pasul.

(b) We reject bar Pada's source, and revert to that of Rebbi Yehoshua ben Levi however - on the grounds that in case, we coud apply the same 'Kal va'Chomer' to exempt all Eidim Zomemin from the punishment that is due to them, based on the principle 'Kasher Zamam ve'Lo Ka'asher Asah'. And if 'Ka'asher Asah' is Patur, how much more so 'Ka'asher Zamam'.




(a) Resh Lakish learns from the Pasuk "*Hu* Yanus el Achas he'Arim ... " - that the murderer must run to the Arei Miklat, but not the Eidim Zomemin.

(b) Rebbi Yochanan learns it from a 'Kal va'Chomer' - from someone who murders be'Meizid (even if there are no witnesses, and he is not put to death). If he does not need to run to the Arei Miklat, how much more so someone who did not kill at all.

(c) We ask on the 'Kal-va'Chomer' - that perhaps it is *because* the former killed on purpose that he does not deserve a Kaparah. Consequently, we are forced to learn like Resh Lakish.

(d) When Ula speaks of a hint in the Torah for Eidim Zomemin - he means for Eidim Zomemin who are subject to "Ka'asher Zamam" (such as the cases currently under discussion).

(a) The problem with the Pasuk "ve'Hitzdiku es ha'Tzadik, ve'Hirshi'u es ha'Rasha. ve'Hayah Im bin Hakos ha'Rasha" is - that if the Pasuk is speaking about the Dayanim, and Tzadik and Rasha about the litigants, then (seeing as not all court cases are subject to Malkos), the Torah should rather have opened with "Ki Yiyheh Riv Bein Anashim ... ".

(b) So he interprets the entire Pasuk with regard to the witnesses, and the Pasuk is saying - that if witnesses declared the righteous litigant a Rasha, and second witnesses declared him a Tzadik, by renderring the first witnesses to be Zomemin, then in the event that Malkos is appropriate (because they are not subject to "Ka'asher Zamam"), then they receive Malkos.

(c) We cannot learn this from the Pasuk "Lo Sa'aneh ve'Re'acha Eid Shaker" - because it is a 'La'av she'Ein Bo Ma'aseh' (and would therefore not be subject to Malkos, were it not for a special Pasuk).

(d) Our Mishnah cited two cases where the witnesses receive Malkos (rather than the punishment indicated by "Ka'asher Zamam"). The Tana Kama of the Beraisa cites two more cases. One of them is when they tried to make the defendant pay Kofer (by testifying that his Mu'ad ox [that already killed three animals] killed a person). The ...

1. ... fourth case - is that they cannot be sold as an Eved Ivri (in the event that the defendant testified that he stole and is unable to pay).
2. ... fifth case added by Rebbi Akiva is - that, if Eidim Zomemin admitted (of their own volition) in another Beis-Din that they were Zomemin, they would not be obligated to pay.
(a) The S'vara behind the ruling that the false witnesses do not pay Kofer is - the fact that it is a Kaparah, and the witnesses (may well have sinned, but) they are not subject to a Kaparah.

(b) In another Beraisa, the Tana Kama holds that Kofer entails paying the dead man's value. According to Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah - it is his own value that he has to pay.

(c) Rav Chisda thinks - that Rebbi Yishmael holds that Kofer is a Kaparah, whereas according to the Tana Kama, it is Mamon.

(a) Rav Papa however, disagrees. According to him, both Tana'im hold 'Kufra Kaparah' (in which case, either could be the author of our Beraisa). The Rabbanan learn from the 'Gezeirah-Shavah' "Hashasah" "Hashasah" ("Kasher Yashis Alav Ba'al ha'Ishah" (in connection with a man who struck a pregnant woman and killed her baby) - that just as there, the culprit pays the value of the babies, so too, here, must the owner of the ox pay the value of the Nizak (even though it is a Kaparah).

(b) Rebbi Yishmael - maintains that, seeing as it is a Kaparah, the Pasuk must mean "Pidyon Nafsho" of the Mazik (and he doesn't hold of the 'Gezeirah-Shavah').

(a) In the case of 'Ein Nimkarin be'Eved Ivri', Rav Hamnuna initially thought that the Tana is speaking when the defendant has money to pay (in which case they are not sold, since he would not have been sold either) - even if *they* have no money to pay.

(b) But there where he does not have money to pay (even if *they* do) then they would have to be sold (just like *he* would have been). We refute that statement however on the grounds - that they are no worse than he, and since he would not have been sold had he had money, neither are they.

(c) So we amend Rav Hamnuna. He initially thought, we now say, that the Beraisa speaks in a case where either the defendant or the witnesses, has money, but if neither has, then then the Eidim Zomemin are sold too. But Rava refuted that argument too, based on the Pasuk "ve'Nimkar bi'Geneivaso", from which we extrapolate - that only he can be sold, but not the Eidim Zomemin.

(a) We learned in the Beraisa that, according to Rebbi Akiva, the Eidim Zomemin do not pay by their own admission - because Rebbi Akiva holds that Eidim Zomemin is a K'nas (a fine), and based on the Pasuk "Asher Yarshi'un Elohim" - we learn that, when it comes to paying K'nas (such as Kefel) only someone whom Beis-Din obligate to pay, needs to pay, but not someone who admits of his own volition.

(b) Rabah proves that Eidim Zomemin is a K'nas - because they are sentenced to death even though the defendant is not killed.

(c) Rav Nachman seems to bring a second proof from the fact that the money remains in the original owner's hands, yet the witnesses are obligated to pay. The problem with Rav Nachman's statement is - that it is basically a repetition of what Rabah said.

(d) We therefore amend it - to read 'And so said Rav Nachman'.

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