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THE DAFYOMI DISCUSSION LIST
brought to you by Kollel Iyun Hadaf of Yerushalayim
Rosh Kollel Rabbi Mordecai Kornfeld
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Makos 004b: Makos of Ben Gerushah; v'Hitzdiku vs. Lo Sa'aneh
Shmuel Tannenbaum <[EMAIL PROTECTED]> asked:
1) The din malkos which the eidim receive for testifying on ben grusho or
ben chalutzo, is that a Kiyum of Kaasher Zomam or not? The first Tosfos
"Meidin Onu" seems to say it is a kiyum. but in the Gemoro it's mashma it's
not: "She'ein Osin bohem din hazomo kol ikar"
2) Tosfos on daf 4: DH: "Verabonon" says that V'hitzdiku is only a giluy on
Lo Sa'ane that even though there is no act, there is still malkos. Then
tosfos continues to explain the gemoro's answers that Lo Sa'ane is the
Azhoro for Ka'asher zomam which is the maskono.
But what do we do with V'hitzdiku is it still a giluy on Lo Sa'ane? Even
though there is no malkos from there? Could we say now that V'hitzdiku is a
giluy directly on Ka'asher zomam, or can we just say that V'hitzdiku is a
din by itself which says that when we know the eidim are lying they get
malkos, in which case they should get malkos when bo horug beraglov and
it's clear that the eidim are lying.
Thank you
Shmuel Tannenbaum
-------------
The Kollel replies:
1) Tosfos is referring to the requirement of "Edus she'Atah Yachol
Lehazimah," which is learned out from "v'Darshu ha'Shoftim... va'Asisem Lo
Ka'asher Zamam," (Devarim 19:19), which implies that we can only be sure
the witnesses are telling the truth if the witnesses can be given a
punishment corresponding to their plotting (see Rashi, Bava Kama 75b DH
Heicha d'Amrei). In Tosfos first answer, he is suggesting that since Malkus
is *just as severe* (or more severe) an ordeal as being a Ben Gerushah, the
testimony is considered to be "Yachol Lehazimah."
The Gemara on 2a, on the other hand, is simply saying that the even if the
punishment is as severe as the crime, it is not *identical* to the crime in
any way.
2) The Gemara in Bava Kama 75b makes it clear that it *would* be
appropriate to give the witnesses Malkus in a case of "Ba Harug b'Raglav"
(as long as it is not Nitan l'Azharas Misas Beis Din), since the witnesses
transgressed Lo Sa'aneh. It is clear that that the Malkus administered due
to the Giluy of "v'Hitzdiku" is indeed for Lo Sa'aneh -- which is indeed
why Ben Gerushah gets Malkus.
Tosfos does not mean to conclude that there is no Malkus for Lo Sa'aneh.
There *is* Malkus for Lo Sa'aneh, but only one Malkus per case. Tosfos
holds that there is no such thing as being given Malkus simply because "the
Pasuk says so." Every Malkus must have a *Lav* associated with it, even the
Malkus of "Ka'asher Zamam" or "v'Hitzdiku." Thus, in a case where witnesses
testify that a person is Chayav Malkus and they are found Zomemim, the
witnesses cannot be given two sets of Malkus (Ka'asher Zamam and Lo
Sa'aneh), since the Lav of Lo Sa'aneh is behind the Malkus of Ka'asher
Zamam as well, and cannot be used to give a *second* Malkus in the a single
case of false testimony.
This is the key to answering Rebbi Akiva Eiger's question on the Gemara (in
Gilyon ha'Shas), by the way (see Rashash and Acharonim). The Gemara is not
asking whether there is Malkus for Lo Sa'aneh *in general*. There certainly
is, as is evident from Ben Gerushah. It is asking what Derasha Lo Sa'aneh
is already being used for *in this particular case* of testifying falsely
that someone is Chayav Malkus, which prevents Lo Sa'aneh from being used to
administer a second set of Malkus. (This is true according to all three
explanations for the Gemara that we have presented in the Insights.)
Best wishes,
Mordecai Kornfeld
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