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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.

(a) If two witnesses testify to a crime or an event and a later set of witnesses contradict their testimony by saying that the crime or event did not take place exactly as the first set of witnesses testified, all of the witnesses are termed Edim Mukchashin (contradictory witnesses), and Beis Din cannot use either testimony.
(b) If, however, two witnesses testify to a crime or an event and a later set of witnesses *disqualify* that testimony by saying that the first set of witnesses were with them in a different place at the time that the first set of witnesses claim that the act took place, the first witnesses are termed Edim Zomimin (conspiring witnesses). The Torah commands that the second set of witnesses are believed, rather than the first. In general, Edim Zomemin are punished with the punishment they tried to cause. (Devarim 19:16-21. See Mishnah Makos 5a.)
(c) The punishment of Edim Zomemin is only carried out on the Edim if they succeeded in convicting the defendant of the alleged crime ("Achar Gemar Din") but before the sentence is carried out. The Gemara (Daf 5b) learns this Halachah from the words of the verse, "Ka'asher Zamam *La'asos*, v'Lo Ka'asher *Asa*" - "as he conspired *to do*, but not as he conspired *and did*" (Devarim 19:19).

(a) The Torah (Vayikra 21:14) commands a Kohen Gadol not to marry a widow (Almanah), divorcee (Gerushah), prostitute ("Zonah" -- see Background to Kidushin 77:17) or Chalalah. An ordinary Kohen (Hedyot) is permitted to marry a widow, but not any of the other women listed above. The child from one of the above-mentioned unions is invalidated from the Kehunah, and is called a "Chalal." The Rabanan also prohibited all Kohanim from marrying a Chalutzah (see Background to Sanhedrin 18:2a), and made the children of a Kohen from a Chalutzah Chalalim mid'Rabanan.
(b) A Kohen who marries one of the women who are forbidden to him is liable to Malkus (lashes) (RAMBAM Hilchos Isurei Bi'ah 17:2). The Kohen himself does not become a Chalal as a result of the union (Rambam ibid. 19:1). However, he may not perform the Avodah of the Beis ha'Mikdash until he makes a vow not to marry these women again (and divorces the prohibited woman) (Bechoros 45b, Rambam Hilchos Bi'as Mikdash 6:9).
(c) A Chalal may not serve in the Beis ha'Mikdash, and according to some sources he is Chayav Misah b'Yedei Shamayim if he does (MINCHAS CHINUCH 275:5). A Chalal does not eat Terumah or the Kodshim reserved for Kohanim (Terumos 8:1), and is not restricted with regard to the women that he is allowed to marry. Chalalim are not prohibited from coming into contact with corpses. Chalalim are not considered Kohanim with regard to the other privileges and restrictions pertaining to Kohanim, as well.

3) [line 5] LOKEH (MALKUS)
(a) It is a Mitzvah to administer the punishment of Malkus Arba'im (Torah lashes) to one who is liable to Malkus, as the Torah states, "v'Hipilo ha'Shofet v'Hikahu" - "and the judge shall cast him down and whip him" (Devarim 25:2). Malkus d'Oraisa are administered in Eretz Yisrael by a court of three judges who are Semuchin (Halachically ordained), whether the Beis ha'Mikdash stands or not (RAMBAM Hilchos Sanhedrin 16:2). Courts outside of Eretz Yisrael can administer only Makas Mardus (Rabbinic lashes, see Background to Kidushin 70:32).
(b) A person is only liable to Malkus Arba'im if he transgresses a *Lav* (a negative commandment) of the Torah that is not "modified," such as a Lav shebi'Chelalos (see Background to Nazir 38:20), a Lav she'Nitak l'Aseh (see Background to Yoma 85:26), etc. A prohibition that is implied by a positive commandment is never punishable by Malkus. In addition, in order to be liable he must transgress in front of witnesses after receiving a proper warning.
(c) Malkos are administered in numbers of three, with a maximum amount of thirty-nine for each transgression. The culprit is examined to determine how many lashes he can withstand. He stands leaning against a post and his clothes are ripped until his heart is revealed. The agent of Beis Din, a Torah scholar who is specifically weak, stands on a rock behind him, whipping one third of the lashes on his chest and two thirds on his back, one third on each shoulder (Makos 22b).
(d) During the whipping, the most distinguished judge of the court reads the verse "Im Lo Sishmor La'asos Es Kol Divrei ha'Torah ha'Zos...v'Hifla HaSh-m Es Makoscha..." - "If you will not be careful to perform all the words of this Torah...then HaSh-m will make your blows extraordinary..." (Devarim 28:58-59). For each blow, the deputy judge counts out loud the number of each lash and a third judge calls out "Hakehu!" - "Whip him!" If the culprit dies from the lashing, the agent of Beis Din is exempt from any punishment; however, if he administers an extra lash due to a mistake in the count, and the extra lash causes the culprit to die, he must go to Galus (exile, see Background to Bava Kama 32:20).

(a) A person who murders intentionally after having been previously warned is liable to the death penalty. A person who murders unintentionally is exempt from the death penalty, but is punished with Galus (banishment, exile).
(b) When it is proven that a person killed unintentionally, he is banished to one of the six Arei Miklat (cities of refuge) or one of the forty-two cities of the Leviyim. He must stay there and not leave the city or its Techum for any reason whatsoever until the death of the Kohen Gadol who served at the time that he was sentenced to banishment.
(c) If the unintentional murderer leaves his city of refuge, the Go'el ha'Dam (the closest relative of the murdered person) is permitted to avenge the death of his relative and kill the murderer.

5) [line 13] KOL HA'ZOMEMIN MAKDIMIN L'OSAH MISAH - all witnesses found to be Edim Zomemin are given that same death [for the crime which they tried to convict the defendant of doing] (RASHI explains that the word "Makdimin," which means "preempt" or "precede," means that the Edim Zomemin receive the death penalty that they tried to inflict, and they may not expect to receive any other, lighter penalty)

(a) The daughter of a Kohen who commits adultery is put to death. She does not receive the death penalty of Chenek (choking), as in other cases of adultery, but rather Sereifah (molten lead is poured in her throat) as it states in Vayikra 21:9. The adulterer, however, is punished with Chenek (Sanhedrin 84b).
(b) The Edim Zomemin of the daughter of a Kohen whom they falsely accused of adultery, are punished with Chenek, the punishment given to the adulterer, and they are not punished with Sereifah, the punishment given to the daughter of a Kohen (Sanhedrin ibid.). The Gemara (Sanhedrin 90a) learns this Halachah from the words of the verse, "va'Asisem Lo Ka'asher Zamam La'asos *l'Achiv*" - l'Achiv, v'Lo *la'Achoso* - "and you shall do to him as he conspired to do *to his brother*" - to his brother, but not to *his sister* (Devarim 19:19).

7) [line 22] "VA'ASISEM LO KA'ASHER ZAMAM [LA'ASOS L'ACHIV, U'VI'ARTA HA'RA MI'KIRBECHA.]" - "And you shall do *to him* as he plotted [to do to his brother, and you shall remove the evil from your midst.]" (Devarim 19:19) - The Edim Zomemin alone are the ones who are affected by the verdict of "Ka'asher Zamam," and not their offspring.

8) [line 22] LO V'LO L'ZAR'O - to him and not to his offspring
9) [line 23] V'LIFSELUHU L'DIDEI V'LO LIFSELU L'ZAR'EI - perhaps Beis Din could rule that he alone is rendered a Chalal and not his children


10) [line 1] HA'SOKEL EINO NISKAL - (lit. one who stones is not stoned) (a) if false witnesses testify against a person in a capital case and that person is punished with the death penalty of Sekilah, they are not punished with Sekilah (or any other death penalty at all). (See above, entry #1:c.) (RASHI); (b) one who kills a person by stoning him does not receive the death penalty of Sekilah, but rather the death penalty of Hereg (being killed by the sword, the penalty for murder) (RABEINU TAM, cited by TOSFOS DH u'Mah)

11) [line 2] MECHAVARTA KED'SHANYAN ME'IKARA - Rather, it is clearly correct as we originally answered (i.e. the answer of Rebbi Yehoshua ben Levi -- Daf 2a)

12) [line 5] "[VA'ASHER YAVO ES RE'EIHU VA'YA'AR... U'MATZA ES RE'EIHU VA'MES,] HU YANUS EL ACHAS HE'ARIM [VA'CHAI.]" - "[And when a man goes into the wood with his neighbor to cut wood, and his hand swings the ax to cut down the tree, and the head slips from the handle, and strikes (lit. finds) his neighbor, so that he dies;] he shall flee to one of those cities [and live.]" (Devarim 19:5)

13a) [line 6] U'MAH HU SHE'ASAH MA'ASEH B'MEZID EINO GOLEH - if he (a murderer) does an action (murder) intentionally, he does not go into exile
b) [line 7] HEN SHE'LO ASU MA'ASEH B'MEZID EINO DIN SHE'LO YIGLU? - they (the Edim Zomemin who testified that a person killed unintentionally and is liable to Galus), who did not do *an action* intentionally (rather, they only testified against him, and mere speech is not considered an action), does it not follow that they will not go into exile [for their intentional sin]?

14) [line 10] KI HEICHI D'LO SEHEVEI LEI KAPARAH - so that it (exile) should not bring him atonement

15) [line 17] "... V'HITZDIKU ES HA'TZADIK V'HIRSHI'U ES HA'RASHA." - "[If there is a controversy between men, and they come to judgment, that the judges may judge them;] and they justify the righteous, and condemn the wicked." (Devarim 25:1)

16) [line 18] "[V'HAYAH] IM BIN HAKOS HA'RASHA..." - "[And it shall be,] if the wicked man deserves to be beaten, [that the judge shall cast him down and whip him in his presence, by a certain number according to his wickedness.]" (Devarim 25:2)

17) [line 23] "LO SA'ANEH" - "[You shall not kill. You shall not commit adultery. You shall not steal.] You shall not bear [false witness against your neighbor.]" (Shemos 20:13)

A Lav she'Ein Bo Ma'aseh is a negative commandment that is transgressed without performing any action. The Tana'im argue (Makos 4b et al.) as to whether or not one receives lashes for this type of Lav.

19) [line 25] EIN MESHALMIN ES HA'KOFER - they do not pay the Kofer payment if they testified falsely that the defendant's bull killed a person (KOFER)
See below, entry #22.

20) [line 26] EIN NIMKARIN B'EVED IVRI (EVED IVRI - the Jewish slave)
(a) There are two ways that a Jewish man can be bought as a slave by another Jew. Either he may sell himself because he is destitute, or he may be sold by Beis Din to pay back a theft. During his term as a slave, his master must support his family (Kidushin 22b). The master may not make his Eved Ivri do disgraceful work for him, nor may he treat him as one normally treats a slave. For example, if the master only has one pillow, he must give it to his Eved Ivri rather than keep it for himself (Kidushin 20a).
(b) If the slave was married before he was sold, the master has the right to give him a Nochri maidservant to bear him children who will become the slaves of the master (Shemos 21:4). (One who is not an Eved Ivri is forbidden to have relations with a maidservant.)
(c) An Eved Ivri is obligated to work for his master for only six years (Shemos 21:2) or until the Yovel year (see Background to Bava Basra 112:6), whichever comes first (Kidushin 14b, 16a). At any time during his term, he may go free if he or someone else pays his master the money remaining from the sum that the master paid for him, prorated to the amount of time that he worked. If at the termination of six years he expresses his desire to continue life as a slave, the master takes the slave to Beis Din, and stands the slave near a doorpost and pierces his right ear and the door with an awl. This is known as Retzi'ah, and an Eved Ivri upon whom this is performed is called a "Nirtza." A Nirtza slave must continue to serve his master until the Yovel year (ibid. 21:6) or until his master dies. Whenever an Eved Ivri goes free, under most circumstances his master must give him monetary gifts valued at 15, 30 or 50 Sela'im, according to the various opinions (Kidushin 17a). This is known as Ha'anakah (Devarim 15:14).
(d) Our Gemara (the most straightforward explanation brought by RASHI) discusses a case in which false witnesses testify that a person was convicted of stealing. At the time of the court case, he had nothing with which to pay the debt, and the court ruled that he should be sold as a slave. If those witnesses are found to be Edim Zomemin, they are not sold as slaves.

21) [line 26] EIN MESHALMIN AL PI ATZMAN - they do not pay according to their own admission, e.g. if they come to Beis Din and admit that in a previous court case they were found guilty of bearing false witness as Edim Zomemin, but they escaped before the litigant could try them for their wrongdoing, they are not punished with the punishment they tried to cause. (The Gemara explains that Rebbi Akiva rules that the Halachah of Edim Zomemin belongs to the category of Kenas, and in every case of Kenas, the guilty party does not have to pay the Kenas if he admits to his liability of his own accord. Only if witnesses testify to his guilt in court must he pay.)

(a) If a person's Shor ha'Mu'ad kills another person, the bull is put to death by stoning (see Background to Bava Kama 40:28) and the owner of the bull is Chayav Misah b'Yedei Shamayim. The owner can *redeem* himself by paying "Kofer" to the children or heirs of the dead man, as the verse states, "v'Im Kofer Yushas Alav, v'Nasan Pidyon Nafsho" (Shemos 21:30; see Background to Bava Kama 23:22).
(b) The Gemara (Bava Kama 40a) entertains two possibilities with regard to the nature of Kofer:

1. "Kufra Kaparah," meaning that the payment of Kofer serves as an *atonement* for the owner of the Shor ha'Mu'ad (like a Korban atones for one's sins).
2. "Kufra Mamona," meaning that Kofer is a monetary compensation that the owner of the Shor ha'Mu'ad pays to the heirs of the dead man for "damaging" the dead man by taking his life. (According to this view, it is clear that the amount of the Kofer is equal to the value of the man that was killed -- Bava Kama 40a.) It is through delivering this monetary compensation that the owner of the bull gains atonement.
23) [line 28] HANEI LAV BENEI KAPARH NINHU - these [Edim Zomemin] are not among those who receive atonement (since their bull did not kill anyone -- RASHI)

24a) [line 33] BED'NIZAK SHAIMINAN - [the payment for atonement] is estimated according to [the value of] the victim, [had he been sold on the slave market]
b) [line 33] BED'MAZIK SHAIMINAN - [the payment for atonement] is estimated according to [the value of] the attacker, [had he been sold on the slave market]

25a) [line 34] NE'EMAR HASHASAH (L'MATAH) [L'MA'ALAH] - [with regard to the payment for causing a woman to miscarry] the verse (Shemos 21:22) states a form of the word Hashasah ("Ka'asher *Yashis* Alav Ba'al ha'Ishah,") above (for the change in the Girsa, see BACH #2 and RASHI)
b) [line 34] NE'EMAR HASHASAH (L'MA'ALAH) [L'MATAH] - [with regard to Kofer] the verse (Shemos 21:30) states a form of the word Hashasah ("Im Kofer *Yushas* Alav,") below

26) [line 37] HEICHA D'IS LEI L'DIDEI - where he (the defendant) has [possessions] of his own (and he would not be sold as an Eved Ivri to pay back a theft -- see above, entry #20)

27) [line 42] "... V'NIMKAR BI'GENEVASO." - "[... for he should make full restitution;] if he has nothing, then he shall be sold for his theft." (Shemos 22:2)

(a) The laws of Kenasos (fines) are one category of Dinei Mamonos, laws of monetary matters. Kenasos, which were only imposed by judges of Eretz Yisrael who were Semuchin (ordained), are either a fixed sum of money or an amount more than or less than the damage caused. It is not normal compensation, which is termed "Mamon."
(b) In every case of Kenas, the guilty party does not have to pay the Kenas if he admits to his liability of his own accord. Only if witnesses testify to his guilt in court must he pay.

29) [line 44] HAREI LO ASU MA'ASEH - they (the Edim Zomemin) did not do an action [-- only speech]

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