THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) "MATIR ATZMO L'MISAH" IN A CASE OF "EDIM ZOMEMIM"
QUESTION: The Gemara cites a source for the Halachah that we do not kill a
person until he is "Matir Atzmo l'Misah" by responding to Hasra'ah and
saying, "That this is exactly my intention; let Beis Din kill me because of
my act." The source is the verse, "Yumas ha'Mes" (Devarim 17:6), which
implies that the sinner accepted upon himself the death penalty even before
Beis Din issued its verdict.
The TUMIM (CM 38, DH v'Da) asks that if we cannot kill a person unless he is
"Matir Atzmo l'Misah" then why does the Gemara in Kesuvos (33a) not use this
as a way of proving that Edim Zomemim do not need Hasra'ah (see Rashi 40b,
DH she'Ken Tzarich Hasra'ah)? The Gemara there says that although we cannot
give Hasra'ah before they testify lest they refrain from testifying, nor can
we give them Hasra'ah a few minutes after they have testified since they can
no longer retract their testimony at that point, nevertheless we can give
them Hasra'ah "Toch Kedei Dibur" of finishing their testimony, since they
can still retract their testimony if they want within that time. That is
true, however, only when the Hasra'ah simply involves telling the witnesses
what punishment they will receive if they are made into Edim Zomemim.
However, if the Hasra'ah is valid only if the witnesses reply, "Yes, this is
why I am sinning -- so that Beis Din should kill me," then obviously we
cannot expect the witnesses to become sentenced to death based on such a
statement! By saying such a statement, the witnesses are admitting that
their testimony is not true, and they are effectively retracting their
testimony "Toch Kedei Dibur" and exempting themselves from punishment!
The Tumim mentions that the Gemara in Kesuvos may be based on the opinion of
Rebbi Yosi bar'Rebbi Yehudah who, according to one answer in TOSFOS here (DH
b'Ishah Chaveirah) and RASHI (72b, DH ha'Hu), holds that it is not necessary
for the guilty part to be "Matir Atzmo l'Misah." However, he adds that this
is a very forced answer.
(a) Because of this question, the Tumim concludes that although we cannot
kill a person who is not "Matir Atzmo l'Misah" because of the verse "Yumas
ha'Mes," nevertheless to give a punishment of *Malkus* it is not necessary
for the guilty person to be "Matir Atzmo l'Malkus." The Gemara in Kesuvos is
looking for a source that Edim Zomemim do not need Hasra'ah for *Malkus*,
and therefore the requirement for someone guilty of Misah to be "Matir Atzmo
l'Misah" is irrelevant.
This is also the opinion of the CHUT HA'SHANI (#17), who writes that it is
not necessary for one to be "Matir Atzmo l'Malkus."
However, the GILYONEI HA'SHAS (Sanhedrin 81b) points out that Rashi there
(DH Hasru Bo) and Tosfos in Temurah (7a, DH Ela) write that it *is*
necessary for one to be "Matir Atzmo l'Malkus" in order to be punished with
Malkus. This is also the opinion of the RAMBAM (Hilchos Sanhedrin 12:2)
according to the LECHEM MISHNEH. Although the verse cited here mentions only
the death penalty, we should be able to deduce from this that it is
necessary to be "Matir Atzmo l'Malkus" through a Kal v'Chomer, since the
Gemara here and earlier (40b) makes it clear that a *greater* form of
Hasra'ah is necessary for a *lesser* form of punishment (see SEDEI CHEMED
4-M:31, DH Amnan).
(b) Perhaps the Gemara thought that we can give Hasra'ah to Edim Zomemim
since they can be "Matir Atzmo l'Misah" by saying, "*If* I am found to be an
Ed Zomem, then let Beis Din kill me."
The Tumim does not accept this as a valid answer. Apparently, his logic is
that the point of being "Matir Atzmo l'Misah" is so that the guilty party
should pronounce his own sentence. That is, being "Matir Atzmo l'Misah" is
the beginning of the verdict against him. Hence, by saying "*If* I am
guilty, then I should be killed," he has not pronounced anything upon
himself, since he has not accepted unequivocally that he will be punished.
However, we may propose another explanation for why a person must be "Matir
Atzmo l'Misah" in order to be punished with death. The ME'IRI (40b) explains
that it is necessary for the accused to be "Matir Atzmo l'Misah" because if
the sinner replies to the Hasra'ah by saying merely, "Yes, I know," but is
not "Matir Atzmo l'Misah," it could be that he does not expect to be taken
to court to be killed, but rather he thinks that the persons who warned him
were just trying just to reproach him. Accordingly, the Hasra'ah did not
have its full deterrent power, and we cannot determine the extent of the
sinful intention. Hence, when Edim Zomemim say, "We area ready for the court
to sentence us *if* we are found guilty," it is clear that they are taking
the Hasra'ah seriously, and therefore this will suffice as fulfillment of
the requirement to be "Matir Atzmo l'Misah."
2) TWO WITNESSES WHO SAY THAT THEY DO NOT KNOW
QUESTIONS: The Mishnah (40a) teaches that if one witness responds to a
question of the Chakiros by saying, "I do not know," the testimony is
invalid. In contrast, with regard to a question of the Bedikos, if one
witness responds, "I do not know," and *even if two* say, "We do not know,"
the testimony is accepted.
The Gemara asks what the Mishnah is teaching by saying "*even* if two say,
'We do not know.'" What is the Chidush of two witnesses? What difference
does it make if one of the two witnesses does not know or if both of the
witnesses do not know? In either case we do not have complete testimony and
yet we accept their words!
Rav Sheshes proposes that we read the Mishnah as saying that even when there
are *three* witnesses and two of them say that they *do* know in response to
a question of the *Chakiros* and the third witness says that he does not
know, the entire testimony is *not valid*.
Rava rejects this, because the Mishnah says that the testimony *is* valid
when two witnesses say that they do not know. How can we change the words of
the Mishnah to be saying the opposite?
Rava therefore explains the words of the Mishnah to mean that when there are
three witnesses and two witnesses say that they *do* know and the third
witness says that he does not know, with regard to the *Chakiros*, the
entire testimony is *valid*.
The only difference between the answers of Rava and Rav Sheshes is that Rava
keeps the world "valid" ("Kayemes") and he does not change it to "invalid"
("Beteilah"). However, Rava, like Rav Sheshes, is also changing the words of
the Mishnah! The Mishnah says that two witnesses say, "We do not know," and
Rava changes it and says that the two witnesses are saying, "We do know!"
Why does the Gemara not challenge Rava with the same question that Rava asks
on Rav Sheshes? How can Rava change the Mishnah to say "we do know" when the
Mishnah says that they say "we do not know?" (CHIDUSHEI HA'RAN)
(a) The CHIDUSHEI HA'RAN and CHAMRA V'CHAYEI explain that we are more
certain that the correct text of the Mishnah is that the testimony is
*valid*, as is written, than that the statement of the two witnesses was
that they do *not* know. The reason for this is because the Mishnah uses one
word ("Kayemes") to teach the Halachah for two cases -- the case in which a
witness says "I do not know" with regard to the Bedikos, and the case in
which two witnesses say that they do not know (or that they do know) with
regard to the Chakiros. We know that in the former case, the testimony is
indeed valid. Therefore, the Mishnah's ruling must have been that the
testimony is also valid when the two witnesses say that they do (or do not)
know with regard to the Chakiros.
(b) The ARUCH LA'NER cites RASHI earlier (10b, DH v'Ha Ibur) who writes that
it is common for a Tana to inadvertently omit a word that he forgot, but the
Tana does not change one word into an entirely different word. Similarly,
our Tana might have inadvertently added the word "*Ein* Anu Yod'in," but the
Tana would not confuse the word "Kayemes" with the word "Beteilah."
(c) Another answer might be as follows. How could Rav Sheshes and Rava
suggest that the words "even if both witnesses say 'we do [not] know" are
referring to the witnesses responding to a question of the *Chakiros*? The
Mishnah at this point is clearly discussing *Bedikos*!
Perhaps Rava is actually suggesting that the Mishnah be read as it appears
in our texts, and that these words are indeed referring to the witnesses'
reply to the Bedikos and not to the Chakiros. The Halachah that Rava teaches
is the *inference* from the words of the Mishnah and is not explicitly
stated in the Mishnah.
Rava is reading the Mishnah as referring to a single case, in which three
witnesses come to testify and are asked the questions of the Bedikos. The
Mishnah teaches that if one of the three says, "I do not know," then even if
the other two *also say* that they do not know, the testimony is valid.
(That is, the word "va'Afilu" in the Mishnah should be read as "Afilu,"
without the Vav.) From this phraseology of the Mishnah we can infer that
with regard to the Chakiros, the Halachah will be different: if the third
witness says -- in response to a question of the Chakiros -- that he does
not know, the testimony will be valid only if the other two witnesses say
that they do know. This is Rava's intention.
According to this explanation, Rava's emendation of the Mishnah is
insignificant (it is just omitting the Vav of "va'Afilu"). This also seems
to be the intention of the KOS HA'YESHU'OS.
(d) Consistent with our third answer, we may suggest further that Rava is
not changing even a single letter in the Mishnah. Rather, Rava is answering
why the Mishnah considers it a Chidush to say that when two witnesses say
that they do not know, the testimony is valid. Rava is answering that the
Mishnah is talking about a situation in which there are three witnesses.
Accordingly, the Mishnah is teaching an additional Chidush by saying that
two witnesses say they do not know. When a single witness says "I do not
know," we still have the valid testimony of the other two witnesses. The
Mishnah adds that even when two of the three witnesses say "we do not know,"
leaving only one witness who does know, the testimony is still valid.
However, this explanation is acceptable only if the Mishnah does not
consider all of the witnesses to be giving a single testimony. If all of the
witnesses must be valid in order to accept the testimony, then as soon as
the Mishnah teaches that the testimony is valid when *one* says "I do not
know," then we would know by ourselves that the testimony is valid when two
witnesses say that they do not know. Consequently, from the words "even if
two say 'we do not know,'" it can be derived that when more than two
witnesses testify together, it is necessary only to validate the testimony
of two of them (and not all of them). This is what Rava means when he says
that these words teach that when two witnesses answer the Chakiros and the
third does not, the testimony is valid.