THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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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.
1) "EDIM ZOMEMIM" WHO TESTIFIED THAT A KOHEN WAS A "BEN GERUSHAH"
QUESTION: The Mishnah states that when Edim (witnesses) testify that a Kohen
is a Ben Gerushah (the son of a divorced woman married to a Kohen), we do
not punish the Edim by giving each one the status of a Ben Gerushah. Rather,
we give them Malkus.
2) "EDIM ZOMEMIM" WHO TESTIFIED THAT A KOHEN WAS A "BEN CHALUTZAH"
The wording of the Mishnah implies that the only punishment the Edim receive
is a single set of Malkus; they receive no other punishment.
Why do they receive no other punishment? The Edim should also be required to
pay the Kohen for all of the Terumah and other Matnos Kehunah that he will
not be able to receive due to their testimony! (RISHONIM)
(a) The RASHBA, cited by the RITVA, explains that it is unlikely that the
Torah would require the Edim Zomemim to be punished with a punishment that
has yet to be determined. The verse "Ka'asher Zamam" (Devarim 19:19) refers
only to a specific punishment that the witnesses would have caused the
defendant to receive had they succeeded with their plot. Since the amount of
Terumah that the Kohen will receive is not yet determined at the time of the
trial, the Torah does not intend that the Edim Zomemim receive the
punishment that will be determined only with the passing of time, when
people give their Terumah to the Kohen. Therefore, the Edim do not have to
pay for the loss of the Matnos Kehunah that they tried to cause him. (See
(b) The RAMBAN answers that at the time of the court case, it was not at all
certain that the Kohen would ever receive Terumah or Matnos Kehunah in the
future. Therefore, the loss of Matnos Kehunah is not a definite effect of
the Edim's testimony, but rather it is an indirect consequence (a "Gerama").
The verse says that the Edim Zomemim must be punished for "what they plotted
to *do*" ("Ka'asher Zamam *la'Asos*"), and not for what they plotted *to
Why does the Rashba not give the same answer as the Ramban?
The Ramban and Rashba seem to argue about why the Torah prescribes a
punishment of "Ka'asher Zamam" for Edim Zomemim. The Ramban maintains that
the purpose of the punishment is to deter Edim from testifying falsely.
(This is why the testimony of witnesses is invalid if the witnesses cannot
be made into Edim Zomemim -- "Edus sh'Iy Atah Yachol l'Hazimah.") The
deterrent for the testimony must be adjusted in accordance with the
potential results of the testimony. Testimony which could harm the defendant
in a more severe way tempts the witnesses more strongly to testify falsely,
and therefore it needs a more powerful deterrent. Therefore, it suffices for
the deterrent of "Ka'asher Zamam" to be equivalent to what the witnesses
*thought* they were going to accomplish with their testimony. Since the
witnesses could not be certain that their testimony would harm the defendant
with regard to causing him to lose the Matnos Kehunah (because perhaps no
one will offer it to him), their intention was only to disqualify the Kohen
from being able to perform the Avodah in the Beis ha'Mikdash.
The Rashba, on the other hand, understands that the Torah prescribes a
punishment of "Ka'asher Zamam" because it is the most appropriate form of
justice that can be applied. By punishing the Edim with a punishment of
"Ka'asher Zamam," the witnesses suffer in exact proportion to the suffering
which they intended to cause to the defendant. Consequently, the punishment
should not depend on what the witnesses knew for certain that the defendant
would suffer from; rather, if we now determine that the defendant would have
suffered in an additional way, then we should now apply that additional
punishment to the witnesses. That is why the Rashba asserts that had it not
been for the fact that the loss of Matnos Kehunah is an undetermined sum, we
would have made the witnesses pay each time the Kohen receives Matnos
This understanding of the argument between the Ramban and Rashba might
explain another argument between the Rishonim. RASHI writes that when the
Mishnah says that we do not give the Edim the status of a Ben Gerushah, it
is referring to Edim who are Kohanim (because if the Edim are not Kohanim,
it is obvious that they only receive Malkus). The RITVA, however, says in
the name of TOSFOS that we might have thought that even when the Edim are
not Kohanim they should be punished by being treated like Benei Gerushah by
making their daughters and wives unfit to marry Kohanim.
Rashi might understand the punishment of Edim Zomemim like the Ramban; its
purpose is to deter the Edim from lying. Hence, when the witnesses
themselves will not be affected by the testimony, but only their wives and
children will become invalid from marrying Kohanim, it will not deter them
from lying if their lie will have a potentially much greater effect on the
Kohen. Therefore, the Mishnah would not have assumed that we apply the
punishment of "Ka'asher Zamam" in such a manner.
The Tosfos, however, might learn like the Rashba, and holds that the
punishment of Edim Zomemim is merely a punishment that fits the crime. If
the witnesses are not Kohanim and cannot be made into Benei Gerushah
themselves, nevertheless the punishment would still fit the crime if we
consider them to be Benei Gerushah with regard to their wives and daughters.
(c) TOSFOS, cited by the Ritva, explains that we cannot obligate the Edim to
pay for the Matnos Kehunah for the same reason we cannot make the Edim into
Benei Gerushah. The Gemara says that the witnesses do not become Benei
Gerushah, because we cannot allow their testimony to affect the status of
their children, and if, on the other hand, we make them Benei Gerushah
without it affecting their children, then we are not applying "Ka'asher
Zamam" in full; the punishment of Ka'asher Zamam" cannot be applied
partially. Similarly, if we cannot make the witness himself into a Ben
Gerushah, we also cannot obligate him to pay for the Matnos Kehunah either,
since that would be a partial application of "Ka'asher Zamam."
Why do the Ramban and Rashba not suggest this seemingly simple answer?
Perhaps the Ramban and Rashba maintain that the Gemara's logic can be
applied only when we split a single punishment, creating a new
"half-punishment" (for example, we cannot make the Edim into Benei Gerushah
whose children will be permitted to marry Kohanim). However, the punishment
of paying for Matnos Kehunah is a second punishment that is entirely
separate from the punishment of making the Edim into Benei Gerushah. That
punishment can be applied in full and, in itself, it is not a
QUESTION: The Mishnah states that when Edim testify that a Kohen is a Ben
Gerushah (the son of a divorced woman married to a Kohen) or that he is a
Ben Chalutzah (the son of a woman who had performed Chalitzah with her
brother-in-law and then married a Kohen), we do not punish the Edim by
giving each one the status of a Ben Gerushah or the status of a Ben
Chalutzah. Rather, we give them Malkus.
Why does the Mishnah require that Edim Zomemim receive Malkus when they
testify falsely that a Kohen is a Ben Chalutzah? Being a Ben Chalutzah is
not a Pesul mid'Oraisa and it does not blemish the Kohen's status in any way
mid'Oraisa! While it is true that the Rabanan would probably administer
Malkus mid'Rabanan to witnesses who testify falsely that a Kohen is a Ben
Chalutzah, the Mishnah, though, is teaching us Halachos that apply
mid'Oraisa! Why, then, should the Mishnah teach its Halachah with regard to
a Ben Chalutzah, in which the testimony of the witnesses has no effects
(a) The RAMBAN and RITVA answer that the Mishnah mentions Ben Chalutzah only
tangentially to Ben Gerushah, since the two are commonly paired together
(see TOSFOS to Makos 13a, DH Gerushah).
(b) The Acharonim (REBBI AKIVA EIGER, ARUCH LA'NER, EINAYIM LA'MISHPAT,
P'NEI YEHOSHUA) suggest that there is a simpler answer to this question.
Even if the Ben Chalutzah is not Pasul mid'Oraisa, nevertheless, since the
Rabanan instituted that a Ben Chalutzah cannot perform the Avodah in the
Beis ha'Mikdash, the testimony of the witnesses affects the validity of the
Kohen. Since someone is suffering as a result of their testimony, "Ka'asher
Zamam" should be applied even mid'Oraisa, and the Edim should receive Malkus
In addition, there is a Lo Ta'aseh prohibiting witnesses from testifying
falsely even when the testimony does *not* harm another person, according to
the RAMBAN (Devarim 5:17). Accordingly, Malkus mid'Oraisa should be
administered even when the witnesses testify that a Kohen is a Ben
Why do the Ramban and Ritva not suggest this approach?
Perhaps the Ramban and Ritva were bothered by the wording of the Mishnah
which states that we do not make the witnesses into Benei Chalutzah in
retribution for attempting to make the defendant a Ben Chalutzah. Even if we
administer Malkus to a person who testifies that a Kohen is a Ben Chalutzah,
it is clear that the verse, "va'Asisem Lo Ka'asher Zamam la'Asos" (Devarim
19:19), cannot be referring to such testimony, since such testimony (that a
Kohen is a Ben Chalutzah) would have been meaningless at the time that the
Torah was given at Har Sinai.
Although this answer suffices for the Ritva, it does not suffice for the
Ramban. The Ramban writes clearly that *no* Malkus (mid'Oraisa) is
administered to Edim Zomemim who testified that a Kohen is a Ben Chalutzah.
Why, though, should there be no Malkus, if the witnesses attempted to harm
the Kohen through their testimony?
Some Acharonim suggest that the punishment of Malkus is administered only
for giving false testimony for which the witnesses *could* have received a
punishment of "Ka'asher Zamam" (i.e. the identical punishment which they
tried to inflict) had the Torah not excluded that punishment (such as when
they testify that someone is Chayav Galus or that he is a Ben Gerushah). It
does not apply to other forms of false testimony. However, the Gemara in
Bava Kama (74b) teaches that when Edim testify that someone killed Reuven
and then Reuven walks into court, the Edim would be given Malkus for the
Isur of "Lo Sa'aneh" (if not for the problem of Lav she'Nitan l'Azharas
Misas Beis Din").
Perhaps the Ramban's reasoning is that the Torah does not consider the
attempt to make a Kohen into a Ben Chalutzah to be an attempt to cause harm
to a person. This is because a Ben Chalutzah may perform the Avodah,
according to the Torah.
We find a similar concept in Sukah (23b). The Gemara there teaches that the
Torah requires that a Sukah be fit to be used even on Shabbos in order to be
a valid Sukah on Chol ha'Mo'ed. The Gemara says that, according to Rebbi
Meir (whose opinion is the Halachah), if entering the Sukah on Shabbos
involves only an Isur d'Rabanan, the Sukah may still be used during Chol
ha'Mo'ed, since the Torah considers it a valid Sukah even though the Rabanan
prohibit it from being used. Similarly, the Torah considers a Ben Chalutzah
to be fit to perform the Avodah, even though the Rabanan do not permit him
to perform the Avodah. (See ARUCH LA'NER, and see TOSFOS to Kesuvos 29a, DH
Regarding the Lav of "Lo Sa'aneh" (Shemos 20:13), the Gemara (2b) teaches
that it is a "Lav she'Ein Bo Ma'aseh." We punish the Edim Zomemim with
Malkus only because the Torah specifically assigns Malkus to the sin of
false testimony in the verse of "v'Hitzdiku" (Devarim 25:1). However, that
verse is not discussing "Edus Shav" (testimony which does not harm a
person), but rather it is discussing "Edus Sheker" (testimony which *does*
harm a person). Therefore, there is no source to assign a punishment of
Malkus to the sin of saying false testimony that does not cause harm.
3) REFUTING EACH KAL V'CHOMER WITH A SEPARATE ARGUMENT
QUESTIONS: The Gemara (2a) quotes Bar Pada who suggests a Kal v'Chomer to
explain why we do not punish Edim Zomemim -- who testified falsely that a
Kohen is a Ben Gerushah -- by making them into Benei Gerushah. Similarly,
the Gemara (2b) quotes Rebbi Yochanan who suggests a Kal v'Chomer to explain
why we do not punish Edim Zomemim -- who testify that a person is Chayav
Galus -- by sending them to Galus.
4) "EDIM ZOMEMIM" DO NOT PAY "KOFER"
Bar Pada's Kal v'Chomer is that since a Kohen who lives with a Gerushah,
making the child born from that union into a Chalal, does not himself become
a Chalal, then certainly a witness who merely plotted to make a Kohen into a
Chalal (but did not succeed) should not be made into a Chalal. Ravina
rejects this Kal v'Chomer, saying that such logic would refute the entire
law of Edim Zomemim, since Edim Zomemim who succeeded in killing their
victim are not punished with death, while Edim Zomemim who plotted to kill
but did not succeed *are* punished with death.
Rebbi Yochanan makes a similar Kal v'Chomer with regard to Galus. If someone
who actually kills b'Mezid (intentionally) is not sent to Galus, then one
who only attempts to kill b'Mezid is certainly not sent to Galus. The Gemara
refutes this Kal v'Chomer, saying that perhaps there is more reason to send
Edim Zomemim to Galus for *attempting* to kill someone, because Galus is a
Kaparah (atonement), and since they did not actually kill, they are entitled
to a Kaparah.
Why does the Gemara refute each Kal v'Chomer with a different argument? It
would seem that the two arguments can be applied in both cases to refute
both Kal v'Chomers!
(a) The first Kal v'Chomer can be refuted in the same manner as the second
one by saying that a person who merely attempted to make a Kohen into a Ben
Gerushah should be made into a Ben Gerushah as a punishment so that he will
(b) The second Kal v'Chomer can be refuted with the same logic that refutes
the first Kal v'Chomer, as the ARUCH LA'NER asks, by showing that it
contradicts the entire basis of the concept of Edim Zomemim -- a person who
merely attempted to kill is punished *more* than a person who succeeded in
(a) The refutation to the second Kal v'Chomer cannot be used to refute the
first Kal v'Chomer for the following reason. Making the witness a Ben
Gerushah would be a *punishment* and not a *Kaparah*. It is only Galus which
the Gemara considers to be a Kaparah, because its main effect is not
physical or financial suffering as is the case with other punishments;
rather, the Galus (and the death of the Kohen Gadol) protects the
unintentional murderer from the Go'el ha'Dam.
(According to this explanation, the reason why the Torah does not punish
Edim Zomemim who succeeded in their plot is not because the Torah does not
want them to have a Kaparah, as the P'NEI YEHOSHUA writes. Rather, killing
the Edim would be a punishment and not a Kaparah.)
(b) The basic concept of Edim Zomemim does not refute the second Kal
v'Chomer. From the laws of Edim Zomemim, we can prove only that there are
times when the Torah wants to be more lenient with (and acquit) a person who
accomplishes a sinful act, even though it punishes a person who merely plots
a sinful act and does not accomplish it. In the case of a person who kills
b'Mezid, the Torah does not want to be lenient with the killer, since we see
that when he receives Hasra'ah he is punished with death. Accordingly, it is
not logical to suggest that if he kills *without* Hasra'ah, the Torah will
be more lenient with him because his act was done b'Mezid (since the Torah
*does* punish an act done b'Mezid in the case of a murderer). (M. Kornfeld)
QUESTION: The Gemara says that Edim Zomemim do not pay Kofer, because Kofer
is a Kaparah and Edim Zomemim are not "Benei Kaparah."
5) SELLING "EDIM ZOMEMIM" AS SLAVES
Why are the Edim not "Benei Kaparah?" If they attempted to obligate a person
to do an act that attains Kaparah, then the punishment for their false
testimony should be that they must attain Kaparah for their false testimony
in the same way (by paying Kofer)! (RISHONIM)
(a) The RITVA and TOSFOS SHANTZ suggest that a person is never given an
opportunity to do an act to attain Kaparah for a sin done intentionally.
Since the Edim Zomemim sinned intentionally, they cannot be given an action
to perform in order to attain Kaparah.
We may question this explanation from the Halachah of the Korban Asham
Shifchah Charufah (Vayikra 19:20-22; Kerisus 9a; see Background to Kidushin
23:11b). A person who intentionally lives with a Shifchah Charufah is
obligated to bring a Korban Asham. According to the Ritva, when Edim testify
that a person is obligated to bring a Korban for living with a Shifchah
Charufah, they *should* be obligated to bring a Korban. Since that Korban is
brought to atone for a sin that was done intentionally, it should also atone
for their sin, that was done intentionally, of giving false testimony.
TOSFOS, cited by the RITVA, questions further why the Gemara earlier
suggests that Edim Zomemim would have been Chayav Galus if not for the verse
that teaches otherwise. Galus is also a Kaparah, as the Gemara says, and
Edim Zomemim cannot be given an act of Kaparah as their punishment!
Tosfos answers that Galus itself is not a Kaparah. Rather, it is a
punishment; we are allowing the Go'el ha'Dam to kill the unintentional
murderer if he steps outside of the Ir Miklat. The Kaparah to which the
Gemara refers is the fact that when the Kohen Gadol dies, the unintentional
murderer will be able to leave the Ir Miklat.
(b) The RAMBAN explains that Beis Din does not obligate a person by force to
pay money to attain Kaparah. The Gemara in Bava Kama (40a) concludes that we
do not force a person to pay up his obligations of Kofer (as the Ritva
says). The money that a person pays for Kaparah is merely his own
responsibility if he wants to exempt himself from Misah bi'Ydei Shamayim
that he would otherwise suffer as punishment for the fact that his ox killed
a person. The obligation of Misah bi'Ydei Shamayim is also not brought about
by the testimony of the witnesses when they testify that the defendant's ox
killed a person and the defendant is Chayav to pay a Kofer: if his ox *did*
kill a person, then whether or not the owner of the ox is brought to court
he will be punished with Misah b'Ydei Shamayim. If the ox did *not* kill,
then whether or not the owner is brought to court he will *not* be punished
with Misah b'Ydei Shamayim. Therefore, a punishment administered by Shamayim
is not dependant upon the testimony of witnesses in any way.
This is what the Gemara means when it says that the Edim Zomemim are not
"Benei Kaparah." It means that the witnesses do not need a Kaparah since
they did not create any obligation upon the defendant. They did not create
an obligation of Misah b'Ydei Shamayim, because his ox did not kill in
reality, and even if it did, their testimony would not create the obligation
of Misah b'Ydei Shamayim. They also did not create an obligation to pay
money, because Kofer is the responsibility of the defendant himself if he
wants to attain atonement, and it is not an obligation enforced by the Beis
According to the Ramban, the difference between Galus and Kofer is clear.
Even if going to Galus is a Kaparah, nevertheless it will be enforced by
Beis Din through the permission that they give to the Go'el ha'Dam to kill
the defendant if he does not go to Galus.
This also explains why Edim Zomemim will never be obligated to bring a
Korban as their punishment for testifying falsely. When they testify that a
person is obligated to bring a Korban, their testimony does not *create* an
obligation on the person; rather, it is the person's own duty to bring a
Korban if he wants to attain Kaparah.
In addition, this explains why the Mishnah does not list Kofer as one of the
exceptions to the rule of Edim Zomemim, while the Beraisa does list it. The
Mishnah is listing only cases of Edim Zomemim who are not punished with
"Ka'asher Zamam" (i.e. the punishment that they attempted to inflict) but
who *are* punished with Malkus. In a case in which the Edim testify falsely
that a person is obligated to bring a Korban or to pay a Kofer, they have
not actually caused any loss to the defendant through their testimony, and
therefore they will not even be punished with Malkus. (Although it is true
that it is prohibited by the Torah to give false testimony even when no one
is harmed as a result of the testimony, nevertheless the witnesses will not
receive Malkus through such testimony (as we mentioned in Insight #2
QUESTION: The Beraisa adds two more cases, besides those mentioned in the
Mishnah, of Edim Zomemim who do not receive the same punishment that they
attempted to inflict. When the Edim testify falsely that a person is
obligated to pay a Kofer, they are not punished with "Ka'asher Zamam" by
having to pay a Kofer themselves. When Edim testify falsely that a person
was sold as an Eved Ivri, they are not punished by being sold as an Eved
We explained earlier (see previous Insight) why, according to the RAMBAN,
the Mishnah does not include the case of Kofer. According to TOSFOS, the
Mishnah dos not list the case of Kofer because it is an obvious Halachah
that is learned through logic and does not need a source in a verse, and the
Mishnah is listing only those Halachos that we learn from a verse. However,
why does the Mishnah not list the Halachah of testifying that a person was
sold as an Eved Ivri?
According to Rav Hamnuna, the answer to this question, too, is that this
Halachah is derived through logic and does not need a verse, and therefore
the Mishnah does not need to list the case of Eved Ivri. Moreover, the
Halachah that Edim Zomemim are not sold as slaves is not absolute, because,
according to Rav Hamnuna, the Edim sometimes *are* sold as slaves (such as
in a case in which the defendant has no money, and the Edim also have no
money). However, according to Rava, we learn that Edim Zomemim cannot be
sold as slaves from a verse. Why, according to Rava, does the Mishnah not
include this Halachah in its list of cases of Edim Zomemim who are not
punished with the same punishment that they attempted to inflict? (RITVA)
(a) The RITVA suggests that perhaps the only reason why the Mishnah lists
these two cases (of Edim who testify falsely that a Kohen is a Ben Gerushah
or Ben Chalutzah, and Edim who testify false that a person is Chayav Galus)
is because the Mishnah later, in the second Perek, discusses Galus, and in
the third Perek discusses the Halachah of a Ben Gerushah. This answer,
however, is somewhat forces ,
(b) The GEVURAS ARI suggests that even according to Rava, when the Edim have
money and the defendant does not have money, the witnesses will be obligated
to pay and will not receive Malkus. They may claim that "if you would have
had money, then you would have paid, and therefore we may also pay." The
Edim will receive Malkus only when they have no money and the defendant has
no money. Since the Edim are supposed to be punished with "Ka'asher Zamam"
but they cannot be sold as slaves (as the verse teaches), they therefore are
punished with Malkus. However, the Edim can exempt themselves from Malkus by
saying that they want to wait until they get money and then they will pay.
Consequently, they will never receive Malkus since they can always delay it
by demanding more time to get money. This is why the Mishnah does not list
this case among the other cases in which the Edim Zomemim receive Malkus
instead of being punished with the punishment that they attempted to
(c) The RAMBAM describes the case of Edim who testify falsely about the
defendant being an Eved Ivri differently than the way the Gemara explains
the case. The Gemara explains that the Edim testify that the defendant stole
money which he could not repay and therefore he should be sold as an Eved
Ivri. The Rambam explains that the Edim testify that the defendant was sold
as an Eved Ivri.
Apparently, the Rambam understands that the Beraisa includes *both* cases
when it says that Edim Zomemim are not sold as slaves (because of the verse
quoted by Rava).
According to the Rambam, it is clear why the Mishnah does not list Edim
Zomemim who testify falsely about a person's status as an Eved Ivri. The
Mishnah does not mention a number of other cases of Edim testifying falsely
about a person's status, such as when Edim testify that a person is a
Mamzer, or that he is an Amoni, even though the Beraisa (cited by Tosfos on
2a) mentions those cases and says that the Edim Zomemim receive Malkus. The
reason why the Mishnah does not state the case of Eved Ivri, or any of the
other cases of testimony about a person's status, is because these cases are
included in the case of Ben Gerushah. That case includes all cases in which
Edim testify falsely that a person's status is blemished. Since the Mishnah
includes the Halachah of the Rambam's case of Eved Ivri (i.e. false
testimony about a person's status), it does not deem it necessary to list
the case of Eved Ivri separately merely in order to teach the other case of
Eved Ivri (when Edim testify falsely that a person stole money and therefore
should be sold as an Eved Ivri).