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Why don't false witnesses who falsely testify that someone is a ben gerusha or ben chalutza face punishment like their victims? The Gemara (גמרא) explores when the principle of "ka'asher zamam" applies and when witnesses are considered "eidis she'ata yochal hazam." Deep analysis of Rashi (רש"י) and Tosafos (תוספות) reveals fundamental questions about false testimony and rabbinic versus Torah (תורה)-level punishments.
This shiur provides an intensive analysis of Makkos 2a dealing with the laws of eidim zomemim (conspiring witnesses) in cases involving ben gerusha and ben chalutza. The Mishna states that false witnesses who testify that someone is a ben gerusha or ben chalutza do not receive the same punishment as their intended victim, unlike the general rule of "ka'asher zamam" (as they conspired). The shiur examines Rashi (רש"י)'s interpretation that the witnesses must be kohanim for there to be any potential application of ka'asher zamam, since only kohanim can be disqualified from marrying certain women. This leads to a fundamental question: if one witness is a kohen and one is a Yisroel, would their testimony be valid at all, given the principle of "eidis she'ata yochal hazam" (testimony that cannot be reciprocated)? The analysis extends to Tosafos (תוספות)'s two approaches to this problem. The first suggests that malkos (lashes) can serve as a form of ka'asher zamam, while the second maintains that there simply is no din of ka'asher zamam in cases of ben gerusha/ben chalutza, which explains why the witnesses are not disqualified as eidis she'ata yochal hazam. A significant portion of the shiur addresses the complex issue of chalutza's status. While some hold it is only mid'rabanan (rabbinic), the Mishna seems to treat it as deserving Torah (תורה)-level punishment. This creates tensions between different rishonim's positions, particularly regarding whether one can receive malkos d'oraisa for violating a rabbinic prohibition. The shiur explores the Ridvaz's position that chalutza works differently from other prohibitions and the Minchas Chinuch's challenges to this view. The discussion also delves into the fundamental nature of malkos mardus (rabbinic lashes) versus malkos d'oraisa (Torah lashes), suggesting that malkos mardus is punishment for rebellion against rabbinic authority rather than for the inherent wrongness of the act itself. This insight provides a framework for understanding when rabbinic punishments apply alongside Torah punishments. Finally, the shiur raises profound questions about whether the principle of eidis she'ata yochal hazam applies beyond capital cases, challenging fundamental assumptions about the scope of witness testimony laws and their application to monetary and ritual matters.
Makkos 2a
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Why does the Gemara present a kal v'chomer for chuppah making kiddushin based on kesef not being maichel b'terumah, only to reject it? The shiur reveals that even the rejected kal v'chomer establishes a fundamental yesod: kiddushin is a kinyan for ishus (marital relationship), not merely a kinyan in hilchos kinyanim. The second kal v'chomer—from chuppah being gomeres—raises Tosafos's famous question.
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