Makkot
Masechet Makkot is sponsored by Terri Krivosha and Rabbi Hayim Herring in loving memory of Terri’s father Judge Norman Krivosha, Nachum Meir ben David Beer v’Malka “who instilled in us a lifelong love of learning” and in honor of Dr. Judith Hauptman, “our first Talmud teacher, who was one of the pioneers to open the doors of Talmud study to women.”
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Summary
Masechet Makkot is sponsored by Terri Krivosha and Rabbi Hayim Herring in loving memory of Terri’s father Judge Norman Krivosha, Nachum Meir ben David Beer v’Malka “who instilled in us a lifelong love of learning” and in honor of Dr. Judith Hauptman, “our first Talmud teacher, who was one of the pioneers to open the doors of Talmud study to women.”
There are certain exceptions to the rule when conspiring witnesses (eidim zomemim) do not receive the punishment “that they tried to do to their brother.” In those cases, they receive lashes. For example, if they testify about the status of a person (about a kohen that his father married a divorcee) or that a person killed accidentally and should go to the refuge city.
Why does the masechet begin with an exception to the rule, instead of beginning with the basic rule of conspiring witnesses?
From where is it derived that in the two cases in the Mishna, conspiring witnesses do not receive the punishment “as he tried to do to his brother?” For each case, two suggestions are brought – one a drasha from a verse and the other a kal v’chomer argument. In both cases, the kal v’chomer argument is rejected.
Where can one find an allusion in the Torah for the ruling that conspiring witnesses receive lashes in exceptional cases?
A braita is quoted which adds two more exceptions to the rule where the conspiring witnesses do not receive the punishment that they tried to bring upon the defendant.
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Makkot
Masechet Makkot is sponsored by Terri Krivosha and Rabbi Hayim Herring in loving memory of Terri’s father Judge Norman Krivosha, Nachum Meir ben David Beer v’Malka “who instilled in us a lifelong love of learning” and in honor of Dr. Judith Hauptman, “our first Talmud teacher, who was one of the pioneers to open the doors of Talmud study to women.”
Makkot 2
מַתְנִי׳ כֵּיצַד הָעֵדִים נַעֲשִׂים זוֹמְמִין? ״מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה״, אֵין אוֹמְרִים: יֵעָשֶׂה זֶה בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה תַּחְתָּיו, אֶלָּא לוֹקֶה אַרְבָּעִים.
MISHNA: How are witnesses rendered conspiring witnesses? This applies in a case where two witnesses came before the court and said: We testify with regard to so-and-so, who is a priest, that he is the son of a divorced woman or the son of a ḥalutza, a yevama who performed the rite of ḥalitza to free herself from the levirate bond. Those testimonies render him a ḥalal (see Leviticus 21:6–7), one disqualified from the priesthood due to flawed lineage. If a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes as punishment for his false testimony.
״מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא חַיָּיב לִגְלוֹת״, אֵין אוֹמְרִים: יִגְלֶה זֶה תַּחְתָּיו, אֶלָּא לוֹקֶה אַרְבָּעִים.
Likewise, in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be exiled to a city of refuge for unwittingly killing another (see Numbers 35:11), and a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be exiled in his stead. Rather, he receives forty lashes.
גְּמָ׳ הָא ״כֵּיצַד אֵין הָעֵדִים נַעֲשִׂים זוֹמְמִין״ מִיבְּעֵי לֵיהּ! וְעוֹד, מִדְּקָתָנֵי לְקַמַּן: אֲבָל אָמְרוּ לָהֶם: ״הֵיאַךְ אַתֶּם מְעִידִין, הֲרֵי בְּאוֹתוֹ הַיּוֹם אַתֶּם הֱיִיתֶם עִמָּנוּ בְּמָקוֹם פְּלוֹנִי״ – הֲרֵי אֵלּוּ זוֹמְמִין, מִכְּלָל דְּאֵלּוּ אֵין זוֹמְמִין!
GEMARA: The Gemara analyzes the opening question of the mishna: But based on the cases discussed in the mishna, the tanna should have asked: How are witnesses not rendered conspiring witnesses? The standard punishment for conspiring witnesses is the punishment that they conspired to have inflicted upon the subject of their testimony. The mishna cites anomalous cases where their punishment does not correspond to the punishment they sought to have inflicted. The Gemara asks: And furthermore, from the fact that the tanna teaches in a mishna cited later (5a): But if the second set of witnesses attempting to render the first set conspiring witnesses said to them: How can you testify to that incident when on that day you were with us in such and such place, these first witnesses are conspiring witnesses. One learns by inference from the final phrase in the cited passage: These are conspiring witnesses, that those enumerated in the mishna here are not conspiring witnesses.
תַּנָּא הָתָם קָאֵי: כׇּל הַזּוֹמְמִין מַקְדִּימִין לְאוֹתָהּ מִיתָה, חוּץ מִזּוֹמְמֵי בַּת כֹּהֵן וּבוֹעֲלָהּ, שֶׁאֵין מַקְדִּימִין לְאוֹתָהּ מִיתָה אֶלָּא לְמִיתָה אַחֶרֶת.
The Gemara answers both questions: The tanna is standing there in his studies, at the end of tractate Sanhedrin, which immediately precedes Makkot, and Makkot is often appended to the end of Sanhedrin. The mishna there teaches (89a): All those who are rendered conspiring witnesses are led to be executed with the same mode of execution with which they conspired to have their victim executed, except for conspiring witnesses who testified that the daughter of a priest and her paramour committed adultery, where the daughter of the priest would be executed by burning (see Leviticus 21:9) and her paramour would be executed by strangulation. In that case, they are not taken directly to be executed with the same mode of execution that they sought to have inflicted on the woman; rather, they are executed with a different mode of execution, the one they sought to have inflicted on the paramour.
וְיֵשׁ עֵדִים זוֹמְמִין אֲחֵרִים, שֶׁאֵין עוֹשִׂין בָּהֶן דִּין הֲזָמָה כׇּל עִיקָּר, אֶלָּא מַלְקוֹת אַרְבָּעִים, כֵּיצַד? ״מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה״, אֵין אוֹמְרִים: יֵעָשֶׂה זֶה בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה תַּחְתָּיו, אֶלָּא לוֹקֶה אֶת הָאַרְבָּעִים.
Therefore, the tanna continues in this first mishna in Makkot: And there are other conspiring witnesses with regard to whom the court does not apply the halakhot governing the punishment in standard cases of conspiring testimony at all, and they do not receive the punishment they sought to have inflicted. Rather, they receive forty lashes. How, and in what cases, is this applied? This is applied in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is the son of a divorced woman or the son of a ḥalutza, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes.
מְנָהָנֵי מִילֵּי? אָמַר רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי אָמַר רַבִּי שִׁמְעוֹן בֶּן לָקִישׁ: דְּאָמַר קְרָא: ״וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם״, ״לוֹ״ – וְלֹא לְזַרְעוֹ. וְלִיפְסְלוּהוּ לְדִידֵיהּ וְלָא לִיפְסְלוּ לְזַרְעֵיהּ! בָּעִינַן ״כַּאֲשֶׁר זָמַם לַעֲשׂוֹת״, וְלֵיכָּא.
The Gemara asks: From where is this matter derived that the court does not punish the witnesses with the punishment they sought to have inflicted and disqualify them from the priesthood? Rabbi Yehoshua ben Levi says that Rabbi Shimon ben Lakish says: It is derived from a verse, as the verse states: “And you shall do to him as he conspired” (Deuteronomy 19:19), from which the Gemara infers: It is done “to him,” but not to his offspring. Rendering the witness a ḥalal would disqualify his offspring as well. The Gemara challenges: Let the court invalidate the witness and not invalidate his offspring. The Gemara explains: That too would not accord with the directive in the verse, as based on the verse we require that the punishment be “as he conspired to do” (Deuteronomy 19:19), and that is not the case here, as the witness conspired to disqualify the subject of his testimony and his offspring.
בַּר פְּדָא אוֹמֵר: קַל וָחוֹמֶר, וּמָה הַמְחַלֵּל אֵינוֹ מִתְחַלֵּל, הַבָּא לְחַלֵּל וְלֹא חִילֵּל – אֵינוֹ דִּין שֶׁלֹּא יִתְחַלֵּל? מַתְקֵיף לַהּ רָבִינָא: אִם כֵּן בִּטַּלְתָּ תּוֹרַת עֵדִים זוֹמְמִין!
Bar Padda says that this alternative form of punishment is derived through an a fortiori inference: If one who actually disqualifies another from the priesthood, i.e., a priest who fathers a son with a divorcée disqualifies their son from the priesthood, is not himself disqualified from the priesthood, so too with regard to this witness who came to disqualify another from the priesthood but was unsuccessful and did not disqualify him because he was rendered a conspiring witness, isn’t it logical that he should not be disqualified? Ravina objects to this reasoning: If so, that the failure of the conspiring witnesses to achieve their objective is the consideration at the basis of the a fortiori inference, you have thereby rendered the halakha of conspiring witnesses obsolete, as one could claim:
וּמָה הַסּוֹקֵל אֵינוֹ נִסְקָל, הַבָּא לִסְקוֹל וְלֹא סָקַל – אֵינוֹ דִּין שֶׁלֹּא יִסָּקֵל? אֶלָּא מְחַוַּורְתָּא כִּדְשַׁנִּינַן מֵעִיקָּרָא.
If one who stones another, i.e., who testified that another is liable to be executed via the death penalty of stoning and was rendered a conspiring witness after that person was executed, is not stoned, as the halakha is that conspiring witnesses receive the punishment that they conspired to have inflicted and not the punishment that they actually had inflicted, then with regard to a conspiring witness who came to stone another and was unsuccessful and did not stone him, as he was rendered a conspiring witness before that person was executed, isn’t it logical that he should not be stoned? The Gemara concludes: Rather, it is clear as we answered initially: “And you shall do to him as he conspired”; this should be done to him, but not to his offspring.
מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא חַיָּיב גָּלוּת כּוּ׳. מְנָא הָנֵי מִילֵּי? אָמַר רֵישׁ לָקִישׁ: דְּאָמַר קְרָא: ״הוּא יָנוּס אֶל אַחַת הֶעָרִים״ – הוּא, וְלָא זוֹמְמִין.
§ The mishna teaches that in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be punished with exile, one does not say that these witnesses shall be exiled in his stead; rather, they receive forty lashes. The Gemara asks: From where is this matter derived? Reish Lakish says: It is derived from a verse, as the verse states with regard to an unwitting killer: “And he shall flee to one of the cities” (Deuteronomy 19:5), and the Gemara infers: He shall flee, but conspiring witnesses shall not.
רַבִּי יוֹחָנָן אוֹמֵר: קַל וָחוֹמֶר: וּמָה הוּא, שֶׁעָשָׂה מַעֲשֶׂה – בְּמֵזִיד אֵינוֹ גּוֹלֶה, הֵן, שֶׁלֹּא עָשׂוּ מַעֲשֶׂה – בְּמֵזִיד אֵינוֹ דִּין שֶׁלֹּא יִגְלוּ?
Rabbi Yoḥanan says: It is derived through an a fortiori inference: If the killer, who performed an action that, had he done so intentionally, he would not be exiled for it even if he were not sentenced to death, e.g., because there was no forewarning, then in the case of the conspiring witnesses, who did not perform an action, as their conspiracy was exposed and their testimony rejected, even if they testified intentionally, isn’t it logical that they should not be exiled?
וְהִיא נוֹתֶנֶת, (וַהֲלֹא דִין הוּא): הוּא, שֶׁעָשָׂה מַעֲשֶׂה – בְּמֵזִיד לָא לִיגְלֵי, כִּי הֵיכִי דְּלָא תֶּיהְוֵי לֵיהּ כַּפָּרָה. הֵן, שֶׁלֹּא עָשׂוּ מַעֲשֶׂה – בְּמֵזִיד נָמֵי לִיגְלוֹ, כִּי הֵיכִי דְּלֶיהְוֵי לְהוּ כַּפָּרָה! אֶלָּא מְחַוַּורְתָּא כִּדְרֵישׁ לָקִישׁ.
The Gemara challenges: But that distinction provides support to the contrary. Could this not be derived through logical inference? With regard to one who performed an action, i.e., killed a person, if he did so intentionally, let him not be exiled so that he will not have atonement for his action, and he will instead receive harsh punishment at the hand of Heaven. With regard to the conspiring witnesses, who did not perform an action, even if they testified intentionally, let them also be exiled so that they will have atonement for their misdeed. The Gemara concludes: Rather, it is clear in accordance with the explanation of Reish Lakish: “And he shall flee to one of the cities”; he, but not conspiring witnesses.
אָמַר עוּלָּא: רֶמֶז לְעֵדִים זוֹמְמִין מִן הַתּוֹרָה מִנַּיִן? רֶמֶז לְעֵדִים זוֹמְמִין?! וְהָא כְּתִיב: ״וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם״! אֶלָּא: רֶמֶז לְעֵדִים זוֹמְמִין שֶׁלּוֹקִין מִן הַתּוֹרָה, מִנַּיִן? דִּכְתִיב: ״וְהִצְדִּיקוּ אֶת הַצַּדִּיק וְהִרְשִׁיעוּ אֶת הָרָשָׁע. וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע״. מִשּׁוּם וְהִצְדִּיקוּ אֶת הַצַּדִּיק – וְהִרְשִׁיעוּ אֶת הָרָשָׁע, וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע?
§ Ulla says: From where is an allusion in the Torah to conspiring witnesses derived? The Gemara asks: Is an allusion to conspiring witnesses required? But isn’t it written explicitly: “And you shall do to him as he conspired” (Deuteronomy 19:19)? Rather, Ulla’s question is: From where is an allusion in the Torah to the halakha that conspiring witnesses are flogged in certain cases derived? It is derived from that which is written: “If there is a quarrel between people and they come to judgment, and the judges judge them, and they vindicated the righteous and condemned the wicked, and it shall be if the wicked is deserving of lashes” (Deuteronomy 25:1–2). Ostensibly, this verse is difficult: Is it due to the fact that “they vindicated the righteous” that they “condemned the wicked, and it shall be if the wicked is deserving of lashes”? In most disputes, the fact that one party is vindicated does not necessarily lead to lashes for the other party.
אֶלָּא: עֵדִים שֶׁהִרְשִׁיעוּ אֶת הַצַּדִּיק, וַאֲתוֹ עֵדִים אַחֲרִינֵי וְהִצְדִּיקוּ אֶת הַצַּדִּיק דְּמֵעִיקָּרָא, וְשַׁוִּינְהוּ לְהָנֵי רְשָׁעִים, ״וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע״.
Rather, the verse is addressing the case of witnesses who, through their testimony, condemned the righteous, and other witnesses came and vindicated the original righteous person and rendered these first set of witnesses wicked conspiring witnesses. In that case, the verse states: “And it shall be if the wicked is deserving of lashes,” indicating that lashes are an appropriate punishment for conspiring witnesses.
וְתִיפּוֹק לֵיהּ מִ״לֹּא תַעֲנֶה״! מִשּׁוּם דְּהָוֵי לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה, וְכׇל לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה אֵין לוֹקִין עָלָיו.
The Gemara asks: And why not derive the halakha that conspiring witnesses are liable to receive lashes from the prohibition: “You shall not bear false witness against your neighbor” (Exodus 20:13)? The Gemara answers: One is not flogged for violating that prohibition, due to the fact that it is a prohibition that does not involve an action, as one violates it through speech, not action, and the principle is: For every prohibition that does not involve an action, one is not flogged for its violation. Therefore, it was necessary to derive the halakha from the verse: “And they vindicated the righteous.”
תָּנוּ רַבָּנַן: אַרְבָּעָה דְּבָרִים נֶאֶמְרוּ בְּעֵדִים זוֹמְמִין: אֵין נַעֲשִׂין בֶּן גְּרוּשָׁה וּבֶן חֲלוּצָה, וְאֵין גּוֹלִין לְעָרֵי מִקְלָט, וְאֵין מְשַׁלְּמִין אֶת הַכּוֹפֶר, וְאֵין נִמְכָּרִין בְּעֶבֶד עִבְרִי. מִשּׁוּם רַבִּי עֲקִיבָא אָמְרוּ: אַף אֵין מְשַׁלְּמִין עַל פִּי עַצְמָן.
§ The Sages taught in a baraita: Four matters were stated with regard to conspiring witnesses, i.e., there are four cases in which their punishment deviates from the norm. They are not rendered the son of a divorced woman or the son of a ḥalutza; they are not exiled to a city of refuge; they do not pay the ransom if they testified that the forewarned ox of someone killed another; and they are not sold as a Hebrew slave in a case where they testified that one stole property and he would be sold into slavery if he lacked the means to repay the owner. The Sages said in the name of Rabbi Akiva: They also do not pay based on their own admission. If they were rendered conspiring witnesses in one court, and before that court managed to collect the payment that they owed, they appeared in a different court and admitted that they had been rendered conspiring witnesses, they are exempt from payment.
אֵין נַעֲשִׂין בֶּן גְּרוּשָׁה וּבֶן חֲלוּצָה – כְּדַאֲמַרַן. וְאֵין גּוֹלִין לְעָרֵי מִקְלָט – כְּדַאֲמַרַן. וְאֵין מְשַׁלְּמִין אֶת הַכּוֹפֶר – קָסָבְרִי: כּוּפְרָא – כַּפָּרָה, וְהָנֵי לָאו בְּנֵי כַּפָּרָה נִינְהוּ.
The Gemara elaborates: They are not rendered the son of a divorced woman or the son of a ḥalutza, as we stated and explained earlier. And they are not exiled to a city of refuge, as we stated and explained earlier. And they do not pay the ransom, as these Sages hold that the ransom paid by one whose ox killed another is atonement for him, as he is liable for the actions of his animal, and it is not payment of damages. And these conspiring witnesses are not subject to a need for atonement, as their ox did not kill anyone.
מַאן תָּנָא כּוּפְרָא כַּפָּרָה? אָמַר רַב חִסְדָּא: רַבִּי יִשְׁמָעֵאל בְּנוֹ שֶׁל רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה הִיא, דְּתַנְיָא: ״וְנָתַן פִּדְיֹן נַפְשׁוֹ״ – דְּמֵי נִיזָּק. רַבִּי יִשְׁמָעֵאל בְּנוֹ שֶׁל רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר: דְּמֵי מַזִּיק. מַאי לָאו בְּהָא קָא מִיפַּלְגִי? דְּמָר סָבַר: כּוּפְרָא מָמוֹנָא, וּמָר סָבַר: כּוּפְרָא כַּפָּרָה?
The Gemara asks: Who is the tanna who taught that the ransom is atonement? Rav Ḥisda says: It is Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, as it is taught in a baraita with regard to the verse concerning a case where the ox of one person gored another: “If ransom is imposed upon him, and he shall give the redemption of his soul” (Exodus 21:30); the term “his soul” means the value of the victim, i.e., the owner of the ox must pay the heirs of the deceased his value as it would be assessed were he sold as a slave in the market. Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: The term “his soul” means the value of the one liable for the damage. What, is it not that they disagree with regard to this principle: That one Sage, the Rabbis, holds that the ransom is monetary restitution for the damage that his ox caused the victim; and one Sage, Rabbi Yishmael, holds that the ransom is atonement, as he thereby redeems his own soul from death at the hand of Heaven?
אָמַר רַב פָּפָּא: לָא, דְּכוּלֵּי עָלְמָא כּוּפְרָא כַּפָּרָה, וְהָכָא בְּהָא קָא מִיפַּלְגִי, מָר סָבַר: בִּדְנִיזָּק שָׁיְימִינַן, וּמָר סָבַר: בִּדְמַזִּיק שָׁיְימִינַן.
Rav Pappa says: No, perhaps everyone agrees that the ransom is atonement, and here, it is with regard to this matter that they disagree: One Sage, the Rabbis, holds that we assess the payment in terms of the value of the victim; and one Sage, Rabbi Yishmael, holds that we assess the payment in terms of the value of the one liable for the damage.
מַאי טַעְמַיְיהוּ דְּרַבָּנַן? נֶאֱמַר הֲשָׁתָה לְמַטָּה, וְנֶאֱמַר הֲשָׁתָה לְמַעְלָה. מָה לְהַלָּן – בִּדְנִיזָּק, אַף כָּאן – בִּדְנִיזָּק.
The Gemara asks: What is the reason for the opinion of the Rabbis, who abandon the straightforward meaning of the verse? The Rabbis derive it in the following manner: Imposition is stated below with regard to one whose ox killed another: “If ransom is imposed upon him” (Exodus 21:30), and imposition is stated above, in the case of one who struck a pregnant woman, causing her to miscarry: “He shall be punished, as the husband of the woman imposes upon him” (Exodus 21:22). Just as there, with regard to the miscarriage, it is in terms of the value of the victim, the fetus, that we assess the payment, here too, in the case of the ransom, it is in terms of the value of the victim that we assess the payment.
וְרַבִּי יִשְׁמָעֵאל: ״וְנָתַן פִּדְיֹן נַפְשׁוֹ״ כְּתִיב. וְרַבָּנַן? אֵין, ״פִּדְיוֹן נַפְשׁוֹ״ כְּתִיב, מִיהוּ כִּי שָׁיְימִינַן, בִּדְנִיזָּק שָׁיְימִינַן.
And Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: “And he shall give the redemption of his soul” is written, indicating that the sum is based on the value of the one seeking atonement. And the Rabbis explain: Yes, the phrase “redemption of his soul” is written, and the payment functions to redeem his soul. Nevertheless, when we assess the sum of the redemption payment, it is in terms of the value of the victim that we assess the payment.
וְאֵין נִמְכָּרִין בְּעֶבֶד עִבְרִי. סָבַר רַב הַמְנוּנָא לְמֵימַר: הָנֵי מִילֵּי הֵיכָא דְּאִית לֵיהּ לְדִידֵיהּ, דְּמִיגּוֹ דְּאִיהוּ לָא נִזְדַּבַּן – אִינְהוּ נָמֵי לָא מִיזְדַּבְּנוּ. אֲבָל הֵיכָא דְּלֵית לֵיהּ לְדִידֵיהּ, אַף עַל גַּב דְּאִית לְהוּ לְדִידְהוּ – מִיזְדַּבְּנוּ.
§ The baraita teaches: Conspiring witnesses are not sold as a Hebrew slave in a case where they testified that one stole property. Rav Hamnuna thought to say: This statement applies only in a case where the falsely accused has means of his own to repay the sum of the alleged theft, as since, had the testimony been true, he would not have been sold for his transgression, the witnesses too are not sold when they are rendered conspiring witnesses. But in a case where the falsely accused does not have means of his own, and would have been sold into slavery had their testimony been accepted, even if the witnesses have means of their own, they are sold, as they sought to have slavery inflicted upon him.
אֲמַר לֵיהּ רָבָא: וְלֵימְרוּ לֵיהּ: אִי אַנְתְּ הֲוָה לָךְ מִי הֲוָה מִיזְדַּבְּנַתְּ? אֲנַן נָמֵי לָא מִיזְדַּבְּנִינַן. אֶלָּא סָבַר רַב הַמְנוּנָא לְמֵימַר: הָנֵי מִילֵּי הֵיכָא דְּאִית לֵיהּ אוֹ לְדִידֵיהּ אוֹ לְדִידְהוּ, אֲבָל הֵיכָא דְּלֵית לֵיהּ לָא לְדִידֵיהּ וְלָא לְדִידְהוּ – מִזְדַּבְּנִי. אֲמַר לֵיהּ רָבָא: ״וְנִמְכַּר בִּגְנֵבָתוֹ״, אָמַר רַחֲמָנָא – בִּגְנֵבָתוֹ, וְלֹא בִּזְמָמוֹ.
Rava said to him: And let the witnesses say to the person against whom they testified: If you had money, would you have been sold? We too will not be sold. Since they have the means, they can pay the sum that they owe and not be sold as slaves. Rather, the Gemara proposes an alternative formulation of the statement of Rav Hamnuna. Rav Hamnuna thought to say: This statement applies only in a case where either he, the falsely accused, or they, the witnesses, have the means to pay the sum; but in a case where neither he nor they have the means, the witnesses are sold. In that case, had their testimony stood, the alleged thief would have been sold into slavery, and they too lack the means to pay the sum that they are liable to pay as conspiring witnesses. Therefore, they are sold. Rava said to him: That is not so, as the Merciful One states: “And he shall be sold for his theft” (Exodus 21:30), from which it is inferred: For his theft, but not for his conspiring testimony.
מִשּׁוּם רַבִּי עֲקִיבָא אָמְרוּ וְכוּ׳. מַאי טַעְמָא דְּרַבִּי עֲקִיבָא? קָסָבַר קְנָסָא הוּא, וּקְנָס אֵין מְשַׁלֵּם עַל פִּי עַצְמוֹ. אָמַר רַבָּה: תֵּדַע, שֶׁהֲרֵי לֹא עָשׂוּ מַעֲשֶׂה, [וְנֶהֱרָגִים] וּמְשַׁלְּמִין. אָמַר רַב נַחְמָן: תֵּדַע, שֶׁהֲרֵי מָמוֹן בְּיַד בְּעָלִים, וּמְשַׁלְּמִים.
§ It is taught in the baraita: The Sages said in the name of Rabbi Akiva: They also do not pay based on their own admission. The Gemara explains: What is the reason for the opinion of Rabbi Akiva? He holds that money paid by a convicted conspiring witnesses is a fine [kenasa], and the principle is: One does not pay a fine based on his own admission; one pays a fine only on the basis of testimony. Rabba says: Know that it is a fine, as these witnesses did not perform an action and caused no actual damage, and yet they are executed or pay depending on the nature of their testimony, indicating that it is a fine rather than a monetary restitution. Rav Naḥman says: Know that it is a fine rather than a monetary restitution for damages, as the money they sought to compel him to pay ultimately remains in the possession of the owner against whom they testified, and yet they pay him.
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Makkot 2
מַתְנִי׳ כֵּיצַד הָעֵדִים נַעֲשִׂים זוֹמְמִין? ״מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה״, אֵין אוֹמְרִים: יֵעָשֶׂה זֶה בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה תַּחְתָּיו, אֶלָּא לוֹקֶה אַרְבָּעִים.
MISHNA: How are witnesses rendered conspiring witnesses? This applies in a case where two witnesses came before the court and said: We testify with regard to so-and-so, who is a priest, that he is the son of a divorced woman or the son of a ḥalutza, a yevama who performed the rite of ḥalitza to free herself from the levirate bond. Those testimonies render him a ḥalal (see Leviticus 21:6–7), one disqualified from the priesthood due to flawed lineage. If a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes as punishment for his false testimony.
״מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא חַיָּיב לִגְלוֹת״, אֵין אוֹמְרִים: יִגְלֶה זֶה תַּחְתָּיו, אֶלָּא לוֹקֶה אַרְבָּעִים.
Likewise, in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be exiled to a city of refuge for unwittingly killing another (see Numbers 35:11), and a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be exiled in his stead. Rather, he receives forty lashes.
גְּמָ׳ הָא ״כֵּיצַד אֵין הָעֵדִים נַעֲשִׂים זוֹמְמִין״ מִיבְּעֵי לֵיהּ! וְעוֹד, מִדְּקָתָנֵי לְקַמַּן: אֲבָל אָמְרוּ לָהֶם: ״הֵיאַךְ אַתֶּם מְעִידִין, הֲרֵי בְּאוֹתוֹ הַיּוֹם אַתֶּם הֱיִיתֶם עִמָּנוּ בְּמָקוֹם פְּלוֹנִי״ – הֲרֵי אֵלּוּ זוֹמְמִין, מִכְּלָל דְּאֵלּוּ אֵין זוֹמְמִין!
GEMARA: The Gemara analyzes the opening question of the mishna: But based on the cases discussed in the mishna, the tanna should have asked: How are witnesses not rendered conspiring witnesses? The standard punishment for conspiring witnesses is the punishment that they conspired to have inflicted upon the subject of their testimony. The mishna cites anomalous cases where their punishment does not correspond to the punishment they sought to have inflicted. The Gemara asks: And furthermore, from the fact that the tanna teaches in a mishna cited later (5a): But if the second set of witnesses attempting to render the first set conspiring witnesses said to them: How can you testify to that incident when on that day you were with us in such and such place, these first witnesses are conspiring witnesses. One learns by inference from the final phrase in the cited passage: These are conspiring witnesses, that those enumerated in the mishna here are not conspiring witnesses.
תַּנָּא הָתָם קָאֵי: כׇּל הַזּוֹמְמִין מַקְדִּימִין לְאוֹתָהּ מִיתָה, חוּץ מִזּוֹמְמֵי בַּת כֹּהֵן וּבוֹעֲלָהּ, שֶׁאֵין מַקְדִּימִין לְאוֹתָהּ מִיתָה אֶלָּא לְמִיתָה אַחֶרֶת.
The Gemara answers both questions: The tanna is standing there in his studies, at the end of tractate Sanhedrin, which immediately precedes Makkot, and Makkot is often appended to the end of Sanhedrin. The mishna there teaches (89a): All those who are rendered conspiring witnesses are led to be executed with the same mode of execution with which they conspired to have their victim executed, except for conspiring witnesses who testified that the daughter of a priest and her paramour committed adultery, where the daughter of the priest would be executed by burning (see Leviticus 21:9) and her paramour would be executed by strangulation. In that case, they are not taken directly to be executed with the same mode of execution that they sought to have inflicted on the woman; rather, they are executed with a different mode of execution, the one they sought to have inflicted on the paramour.
וְיֵשׁ עֵדִים זוֹמְמִין אֲחֵרִים, שֶׁאֵין עוֹשִׂין בָּהֶן דִּין הֲזָמָה כׇּל עִיקָּר, אֶלָּא מַלְקוֹת אַרְבָּעִים, כֵּיצַד? ״מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה״, אֵין אוֹמְרִים: יֵעָשֶׂה זֶה בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה תַּחְתָּיו, אֶלָּא לוֹקֶה אֶת הָאַרְבָּעִים.
Therefore, the tanna continues in this first mishna in Makkot: And there are other conspiring witnesses with regard to whom the court does not apply the halakhot governing the punishment in standard cases of conspiring testimony at all, and they do not receive the punishment they sought to have inflicted. Rather, they receive forty lashes. How, and in what cases, is this applied? This is applied in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is the son of a divorced woman or the son of a ḥalutza, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes.
מְנָהָנֵי מִילֵּי? אָמַר רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי אָמַר רַבִּי שִׁמְעוֹן בֶּן לָקִישׁ: דְּאָמַר קְרָא: ״וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם״, ״לוֹ״ – וְלֹא לְזַרְעוֹ. וְלִיפְסְלוּהוּ לְדִידֵיהּ וְלָא לִיפְסְלוּ לְזַרְעֵיהּ! בָּעִינַן ״כַּאֲשֶׁר זָמַם לַעֲשׂוֹת״, וְלֵיכָּא.
The Gemara asks: From where is this matter derived that the court does not punish the witnesses with the punishment they sought to have inflicted and disqualify them from the priesthood? Rabbi Yehoshua ben Levi says that Rabbi Shimon ben Lakish says: It is derived from a verse, as the verse states: “And you shall do to him as he conspired” (Deuteronomy 19:19), from which the Gemara infers: It is done “to him,” but not to his offspring. Rendering the witness a ḥalal would disqualify his offspring as well. The Gemara challenges: Let the court invalidate the witness and not invalidate his offspring. The Gemara explains: That too would not accord with the directive in the verse, as based on the verse we require that the punishment be “as he conspired to do” (Deuteronomy 19:19), and that is not the case here, as the witness conspired to disqualify the subject of his testimony and his offspring.
בַּר פְּדָא אוֹמֵר: קַל וָחוֹמֶר, וּמָה הַמְחַלֵּל אֵינוֹ מִתְחַלֵּל, הַבָּא לְחַלֵּל וְלֹא חִילֵּל – אֵינוֹ דִּין שֶׁלֹּא יִתְחַלֵּל? מַתְקֵיף לַהּ רָבִינָא: אִם כֵּן בִּטַּלְתָּ תּוֹרַת עֵדִים זוֹמְמִין!
Bar Padda says that this alternative form of punishment is derived through an a fortiori inference: If one who actually disqualifies another from the priesthood, i.e., a priest who fathers a son with a divorcée disqualifies their son from the priesthood, is not himself disqualified from the priesthood, so too with regard to this witness who came to disqualify another from the priesthood but was unsuccessful and did not disqualify him because he was rendered a conspiring witness, isn’t it logical that he should not be disqualified? Ravina objects to this reasoning: If so, that the failure of the conspiring witnesses to achieve their objective is the consideration at the basis of the a fortiori inference, you have thereby rendered the halakha of conspiring witnesses obsolete, as one could claim:
וּמָה הַסּוֹקֵל אֵינוֹ נִסְקָל, הַבָּא לִסְקוֹל וְלֹא סָקַל – אֵינוֹ דִּין שֶׁלֹּא יִסָּקֵל? אֶלָּא מְחַוַּורְתָּא כִּדְשַׁנִּינַן מֵעִיקָּרָא.
If one who stones another, i.e., who testified that another is liable to be executed via the death penalty of stoning and was rendered a conspiring witness after that person was executed, is not stoned, as the halakha is that conspiring witnesses receive the punishment that they conspired to have inflicted and not the punishment that they actually had inflicted, then with regard to a conspiring witness who came to stone another and was unsuccessful and did not stone him, as he was rendered a conspiring witness before that person was executed, isn’t it logical that he should not be stoned? The Gemara concludes: Rather, it is clear as we answered initially: “And you shall do to him as he conspired”; this should be done to him, but not to his offspring.
מְעִידִין אָנוּ בְּאִישׁ פְּלוֹנִי שֶׁהוּא חַיָּיב גָּלוּת כּוּ׳. מְנָא הָנֵי מִילֵּי? אָמַר רֵישׁ לָקִישׁ: דְּאָמַר קְרָא: ״הוּא יָנוּס אֶל אַחַת הֶעָרִים״ – הוּא, וְלָא זוֹמְמִין.
§ The mishna teaches that in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be punished with exile, one does not say that these witnesses shall be exiled in his stead; rather, they receive forty lashes. The Gemara asks: From where is this matter derived? Reish Lakish says: It is derived from a verse, as the verse states with regard to an unwitting killer: “And he shall flee to one of the cities” (Deuteronomy 19:5), and the Gemara infers: He shall flee, but conspiring witnesses shall not.
רַבִּי יוֹחָנָן אוֹמֵר: קַל וָחוֹמֶר: וּמָה הוּא, שֶׁעָשָׂה מַעֲשֶׂה – בְּמֵזִיד אֵינוֹ גּוֹלֶה, הֵן, שֶׁלֹּא עָשׂוּ מַעֲשֶׂה – בְּמֵזִיד אֵינוֹ דִּין שֶׁלֹּא יִגְלוּ?
Rabbi Yoḥanan says: It is derived through an a fortiori inference: If the killer, who performed an action that, had he done so intentionally, he would not be exiled for it even if he were not sentenced to death, e.g., because there was no forewarning, then in the case of the conspiring witnesses, who did not perform an action, as their conspiracy was exposed and their testimony rejected, even if they testified intentionally, isn’t it logical that they should not be exiled?
וְהִיא נוֹתֶנֶת, (וַהֲלֹא דִין הוּא): הוּא, שֶׁעָשָׂה מַעֲשֶׂה – בְּמֵזִיד לָא לִיגְלֵי, כִּי הֵיכִי דְּלָא תֶּיהְוֵי לֵיהּ כַּפָּרָה. הֵן, שֶׁלֹּא עָשׂוּ מַעֲשֶׂה – בְּמֵזִיד נָמֵי לִיגְלוֹ, כִּי הֵיכִי דְּלֶיהְוֵי לְהוּ כַּפָּרָה! אֶלָּא מְחַוַּורְתָּא כִּדְרֵישׁ לָקִישׁ.
The Gemara challenges: But that distinction provides support to the contrary. Could this not be derived through logical inference? With regard to one who performed an action, i.e., killed a person, if he did so intentionally, let him not be exiled so that he will not have atonement for his action, and he will instead receive harsh punishment at the hand of Heaven. With regard to the conspiring witnesses, who did not perform an action, even if they testified intentionally, let them also be exiled so that they will have atonement for their misdeed. The Gemara concludes: Rather, it is clear in accordance with the explanation of Reish Lakish: “And he shall flee to one of the cities”; he, but not conspiring witnesses.
אָמַר עוּלָּא: רֶמֶז לְעֵדִים זוֹמְמִין מִן הַתּוֹרָה מִנַּיִן? רֶמֶז לְעֵדִים זוֹמְמִין?! וְהָא כְּתִיב: ״וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם״! אֶלָּא: רֶמֶז לְעֵדִים זוֹמְמִין שֶׁלּוֹקִין מִן הַתּוֹרָה, מִנַּיִן? דִּכְתִיב: ״וְהִצְדִּיקוּ אֶת הַצַּדִּיק וְהִרְשִׁיעוּ אֶת הָרָשָׁע. וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע״. מִשּׁוּם וְהִצְדִּיקוּ אֶת הַצַּדִּיק – וְהִרְשִׁיעוּ אֶת הָרָשָׁע, וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע?
§ Ulla says: From where is an allusion in the Torah to conspiring witnesses derived? The Gemara asks: Is an allusion to conspiring witnesses required? But isn’t it written explicitly: “And you shall do to him as he conspired” (Deuteronomy 19:19)? Rather, Ulla’s question is: From where is an allusion in the Torah to the halakha that conspiring witnesses are flogged in certain cases derived? It is derived from that which is written: “If there is a quarrel between people and they come to judgment, and the judges judge them, and they vindicated the righteous and condemned the wicked, and it shall be if the wicked is deserving of lashes” (Deuteronomy 25:1–2). Ostensibly, this verse is difficult: Is it due to the fact that “they vindicated the righteous” that they “condemned the wicked, and it shall be if the wicked is deserving of lashes”? In most disputes, the fact that one party is vindicated does not necessarily lead to lashes for the other party.
אֶלָּא: עֵדִים שֶׁהִרְשִׁיעוּ אֶת הַצַּדִּיק, וַאֲתוֹ עֵדִים אַחֲרִינֵי וְהִצְדִּיקוּ אֶת הַצַּדִּיק דְּמֵעִיקָּרָא, וְשַׁוִּינְהוּ לְהָנֵי רְשָׁעִים, ״וְהָיָה אִם בִּן הַכּוֹת הָרָשָׁע״.
Rather, the verse is addressing the case of witnesses who, through their testimony, condemned the righteous, and other witnesses came and vindicated the original righteous person and rendered these first set of witnesses wicked conspiring witnesses. In that case, the verse states: “And it shall be if the wicked is deserving of lashes,” indicating that lashes are an appropriate punishment for conspiring witnesses.
וְתִיפּוֹק לֵיהּ מִ״לֹּא תַעֲנֶה״! מִשּׁוּם דְּהָוֵי לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה, וְכׇל לָאו שֶׁאֵין בּוֹ מַעֲשֶׂה אֵין לוֹקִין עָלָיו.
The Gemara asks: And why not derive the halakha that conspiring witnesses are liable to receive lashes from the prohibition: “You shall not bear false witness against your neighbor” (Exodus 20:13)? The Gemara answers: One is not flogged for violating that prohibition, due to the fact that it is a prohibition that does not involve an action, as one violates it through speech, not action, and the principle is: For every prohibition that does not involve an action, one is not flogged for its violation. Therefore, it was necessary to derive the halakha from the verse: “And they vindicated the righteous.”
תָּנוּ רַבָּנַן: אַרְבָּעָה דְּבָרִים נֶאֶמְרוּ בְּעֵדִים זוֹמְמִין: אֵין נַעֲשִׂין בֶּן גְּרוּשָׁה וּבֶן חֲלוּצָה, וְאֵין גּוֹלִין לְעָרֵי מִקְלָט, וְאֵין מְשַׁלְּמִין אֶת הַכּוֹפֶר, וְאֵין נִמְכָּרִין בְּעֶבֶד עִבְרִי. מִשּׁוּם רַבִּי עֲקִיבָא אָמְרוּ: אַף אֵין מְשַׁלְּמִין עַל פִּי עַצְמָן.
§ The Sages taught in a baraita: Four matters were stated with regard to conspiring witnesses, i.e., there are four cases in which their punishment deviates from the norm. They are not rendered the son of a divorced woman or the son of a ḥalutza; they are not exiled to a city of refuge; they do not pay the ransom if they testified that the forewarned ox of someone killed another; and they are not sold as a Hebrew slave in a case where they testified that one stole property and he would be sold into slavery if he lacked the means to repay the owner. The Sages said in the name of Rabbi Akiva: They also do not pay based on their own admission. If they were rendered conspiring witnesses in one court, and before that court managed to collect the payment that they owed, they appeared in a different court and admitted that they had been rendered conspiring witnesses, they are exempt from payment.
אֵין נַעֲשִׂין בֶּן גְּרוּשָׁה וּבֶן חֲלוּצָה – כְּדַאֲמַרַן. וְאֵין גּוֹלִין לְעָרֵי מִקְלָט – כְּדַאֲמַרַן. וְאֵין מְשַׁלְּמִין אֶת הַכּוֹפֶר – קָסָבְרִי: כּוּפְרָא – כַּפָּרָה, וְהָנֵי לָאו בְּנֵי כַּפָּרָה נִינְהוּ.
The Gemara elaborates: They are not rendered the son of a divorced woman or the son of a ḥalutza, as we stated and explained earlier. And they are not exiled to a city of refuge, as we stated and explained earlier. And they do not pay the ransom, as these Sages hold that the ransom paid by one whose ox killed another is atonement for him, as he is liable for the actions of his animal, and it is not payment of damages. And these conspiring witnesses are not subject to a need for atonement, as their ox did not kill anyone.
מַאן תָּנָא כּוּפְרָא כַּפָּרָה? אָמַר רַב חִסְדָּא: רַבִּי יִשְׁמָעֵאל בְּנוֹ שֶׁל רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה הִיא, דְּתַנְיָא: ״וְנָתַן פִּדְיֹן נַפְשׁוֹ״ – דְּמֵי נִיזָּק. רַבִּי יִשְׁמָעֵאל בְּנוֹ שֶׁל רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר: דְּמֵי מַזִּיק. מַאי לָאו בְּהָא קָא מִיפַּלְגִי? דְּמָר סָבַר: כּוּפְרָא מָמוֹנָא, וּמָר סָבַר: כּוּפְרָא כַּפָּרָה?
The Gemara asks: Who is the tanna who taught that the ransom is atonement? Rav Ḥisda says: It is Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, as it is taught in a baraita with regard to the verse concerning a case where the ox of one person gored another: “If ransom is imposed upon him, and he shall give the redemption of his soul” (Exodus 21:30); the term “his soul” means the value of the victim, i.e., the owner of the ox must pay the heirs of the deceased his value as it would be assessed were he sold as a slave in the market. Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: The term “his soul” means the value of the one liable for the damage. What, is it not that they disagree with regard to this principle: That one Sage, the Rabbis, holds that the ransom is monetary restitution for the damage that his ox caused the victim; and one Sage, Rabbi Yishmael, holds that the ransom is atonement, as he thereby redeems his own soul from death at the hand of Heaven?
אָמַר רַב פָּפָּא: לָא, דְּכוּלֵּי עָלְמָא כּוּפְרָא כַּפָּרָה, וְהָכָא בְּהָא קָא מִיפַּלְגִי, מָר סָבַר: בִּדְנִיזָּק שָׁיְימִינַן, וּמָר סָבַר: בִּדְמַזִּיק שָׁיְימִינַן.
Rav Pappa says: No, perhaps everyone agrees that the ransom is atonement, and here, it is with regard to this matter that they disagree: One Sage, the Rabbis, holds that we assess the payment in terms of the value of the victim; and one Sage, Rabbi Yishmael, holds that we assess the payment in terms of the value of the one liable for the damage.
מַאי טַעְמַיְיהוּ דְּרַבָּנַן? נֶאֱמַר הֲשָׁתָה לְמַטָּה, וְנֶאֱמַר הֲשָׁתָה לְמַעְלָה. מָה לְהַלָּן – בִּדְנִיזָּק, אַף כָּאן – בִּדְנִיזָּק.
The Gemara asks: What is the reason for the opinion of the Rabbis, who abandon the straightforward meaning of the verse? The Rabbis derive it in the following manner: Imposition is stated below with regard to one whose ox killed another: “If ransom is imposed upon him” (Exodus 21:30), and imposition is stated above, in the case of one who struck a pregnant woman, causing her to miscarry: “He shall be punished, as the husband of the woman imposes upon him” (Exodus 21:22). Just as there, with regard to the miscarriage, it is in terms of the value of the victim, the fetus, that we assess the payment, here too, in the case of the ransom, it is in terms of the value of the victim that we assess the payment.
וְרַבִּי יִשְׁמָעֵאל: ״וְנָתַן פִּדְיֹן נַפְשׁוֹ״ כְּתִיב. וְרַבָּנַן? אֵין, ״פִּדְיוֹן נַפְשׁוֹ״ כְּתִיב, מִיהוּ כִּי שָׁיְימִינַן, בִּדְנִיזָּק שָׁיְימִינַן.
And Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: “And he shall give the redemption of his soul” is written, indicating that the sum is based on the value of the one seeking atonement. And the Rabbis explain: Yes, the phrase “redemption of his soul” is written, and the payment functions to redeem his soul. Nevertheless, when we assess the sum of the redemption payment, it is in terms of the value of the victim that we assess the payment.
וְאֵין נִמְכָּרִין בְּעֶבֶד עִבְרִי. סָבַר רַב הַמְנוּנָא לְמֵימַר: הָנֵי מִילֵּי הֵיכָא דְּאִית לֵיהּ לְדִידֵיהּ, דְּמִיגּוֹ דְּאִיהוּ לָא נִזְדַּבַּן – אִינְהוּ נָמֵי לָא מִיזְדַּבְּנוּ. אֲבָל הֵיכָא דְּלֵית לֵיהּ לְדִידֵיהּ, אַף עַל גַּב דְּאִית לְהוּ לְדִידְהוּ – מִיזְדַּבְּנוּ.
§ The baraita teaches: Conspiring witnesses are not sold as a Hebrew slave in a case where they testified that one stole property. Rav Hamnuna thought to say: This statement applies only in a case where the falsely accused has means of his own to repay the sum of the alleged theft, as since, had the testimony been true, he would not have been sold for his transgression, the witnesses too are not sold when they are rendered conspiring witnesses. But in a case where the falsely accused does not have means of his own, and would have been sold into slavery had their testimony been accepted, even if the witnesses have means of their own, they are sold, as they sought to have slavery inflicted upon him.
אֲמַר לֵיהּ רָבָא: וְלֵימְרוּ לֵיהּ: אִי אַנְתְּ הֲוָה לָךְ מִי הֲוָה מִיזְדַּבְּנַתְּ? אֲנַן נָמֵי לָא מִיזְדַּבְּנִינַן. אֶלָּא סָבַר רַב הַמְנוּנָא לְמֵימַר: הָנֵי מִילֵּי הֵיכָא דְּאִית לֵיהּ אוֹ לְדִידֵיהּ אוֹ לְדִידְהוּ, אֲבָל הֵיכָא דְּלֵית לֵיהּ לָא לְדִידֵיהּ וְלָא לְדִידְהוּ – מִזְדַּבְּנִי. אֲמַר לֵיהּ רָבָא: ״וְנִמְכַּר בִּגְנֵבָתוֹ״, אָמַר רַחֲמָנָא – בִּגְנֵבָתוֹ, וְלֹא בִּזְמָמוֹ.
Rava said to him: And let the witnesses say to the person against whom they testified: If you had money, would you have been sold? We too will not be sold. Since they have the means, they can pay the sum that they owe and not be sold as slaves. Rather, the Gemara proposes an alternative formulation of the statement of Rav Hamnuna. Rav Hamnuna thought to say: This statement applies only in a case where either he, the falsely accused, or they, the witnesses, have the means to pay the sum; but in a case where neither he nor they have the means, the witnesses are sold. In that case, had their testimony stood, the alleged thief would have been sold into slavery, and they too lack the means to pay the sum that they are liable to pay as conspiring witnesses. Therefore, they are sold. Rava said to him: That is not so, as the Merciful One states: “And he shall be sold for his theft” (Exodus 21:30), from which it is inferred: For his theft, but not for his conspiring testimony.
מִשּׁוּם רַבִּי עֲקִיבָא אָמְרוּ וְכוּ׳. מַאי טַעְמָא דְּרַבִּי עֲקִיבָא? קָסָבַר קְנָסָא הוּא, וּקְנָס אֵין מְשַׁלֵּם עַל פִּי עַצְמוֹ. אָמַר רַבָּה: תֵּדַע, שֶׁהֲרֵי לֹא עָשׂוּ מַעֲשֶׂה, [וְנֶהֱרָגִים] וּמְשַׁלְּמִין. אָמַר רַב נַחְמָן: תֵּדַע, שֶׁהֲרֵי מָמוֹן בְּיַד בְּעָלִים, וּמְשַׁלְּמִים.
§ It is taught in the baraita: The Sages said in the name of Rabbi Akiva: They also do not pay based on their own admission. The Gemara explains: What is the reason for the opinion of Rabbi Akiva? He holds that money paid by a convicted conspiring witnesses is a fine [kenasa], and the principle is: One does not pay a fine based on his own admission; one pays a fine only on the basis of testimony. Rabba says: Know that it is a fine, as these witnesses did not perform an action and caused no actual damage, and yet they are executed or pay depending on the nature of their testimony, indicating that it is a fine rather than a monetary restitution. Rav Naḥman says: Know that it is a fine rather than a monetary restitution for damages, as the money they sought to compel him to pay ultimately remains in the possession of the owner against whom they testified, and yet they pay him.
