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Makos 003a: Edim Zomemin not a Kenas?

David Cohen <[EMAIL PROTECTED]> asked:

The gemara states that Rabbi Yehudah was able to learn that "lav she'ein bo
ma'aseh ein lokin alav" from eidim zomemin because he does NOT hold like
Rabbi Akiva, that the payment of eidim zomemin is a kenas.

My question is, if it's not a kenas, then how else can we define it?  It's
certainly doesn't seem to be the return of money to its rightful owners,
which would seem to leave no choice but to define it as a kenas.  Is there
any other option?

David Cohen, Philadelphia, Pennsylvania, United States
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The Kollel replies:
 
You have defined "Mamon" as "the *return of money* to its rightful owners,"
which will apply only if the recipient is receiving the money to replace a
loss that he is suffering, until reimbursement, at the hands of the payer.
Therefore you assumed that the payment of Edim Zomemim must be categorized
as a Kenas. However, Mamon may be defined as "reimbursement for *causing a
loss* of money." According to this second definition, even if the defendant
has already been reimbursed from an outside source, it is possible to refer
to a second reimbursement that he receives from the guilty party as "Mamon."

This can be applied to Edim Zomemim as follows. When the Edus of the
Zomemim was accepted, the defendant was held liable. Even though the
defendant did not actually lose his money due to the reversal of the court
ruling, nevertheless, as far as the Edim are concerned, we view it as if
their testimony is irreversible and has caused a damage (since it brought
about the court ruling). When the Beis Din later overturned their ruling,
according to the opinion that Edim Zomemim are Mamon, it is as if the
defendant "earned back his money" from an outside source. 

Although this is a difficult concept, it may be easier than the
alternative. In order to consider the testimony of Edim Zomemim worthy of
any punishment, it must be accepted in court as valid testimony -- since
the Azharah upon which the punishment of Edim Zomemim is based is Lo
Sa'aneh b'Re'acha *Ed* Shaker." If their testimony were to be disqualified
for any reason, it is not considered "Edus" and we cannot be Mechayev the
Edim for "Ed Shaker," despite the fact that they "schemed" to cause a loss.
We must consider their original Edus to be an accepted testimony, and if so
it is possible to consider their monetary obligation to be "Mamon" and not
"Kenas." 

D. Zupnik

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