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When false witnesses are zomemim, do they face the same penalty their victim would have faced? The shiur explores whether a thief's obligation is mechira (being sold as a slave) versus payment, and analyzes Rashi (רש"י) and Nimukei Yosef's different approaches to this fundamental question.
This shiur analyzes a complex sugya in Makkos 2b dealing with the laws of eidim zomemim (false witnesses) in cases involving theft where the penalty would be mechira (being sold as a slave). The Gemara (גמרא) discusses scenarios where witnesses testify that someone stole but don't have money to pay, requiring them to be sold. The fundamental question is whether the obligation is primarily mechira or payment, and how kasher zomam applies. Rabbi Zweig begins by examining the Rambam (רמב"ם)'s position in Hilchos Geneivah 3:11, which seems to treat selling as simply a method of debt collection - first you take metaltelim (movables), then karka (real estate), then you sell the person. This creates difficulties with the Gemara's discussion, as it would make the entire sugya about kasher zomam problematic.
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Makkos 2b
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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.
Is the kesef used in kiddushin a true kinyan (acquisition), or merely a symbolic means of establishing marriage? The shiur analyzes multiple interpretations of the Gemara's derivation from ki yikach ki'ach mi'Sayeffron, exploring whether marriage constitutes ownership, and develops three fundamental approaches: (1) The Gemara proves ishus is a kinyan, (2) ishus is not a kinyan but uses kinyan-like means, or (3) ishus is a kinyan but the kesef may not be a ma'aseh kinyan. The Rambam's position—calling kesef "midivrei sofrim"—is explained as distinguishing between cross-referencing concepts versus borrowing terminology.
Why does the Mishna alternate between the language of "kinyan" (acquisition) and "kiddushin" (sanctification) when describing marriage? The shiur develops a fundamental distinction: marriage has two separate aspects—a kinyan dimension (ownership) and a kedusha dimension (sanctified relationship). Either aspect can initiate the bond, and understanding this dual nature resolves multiple textual and halachic questions throughout the sugya.
Does kiddushei shetar require a shevah pruta? The Ran presents two approaches to the Rif's position. The shiur develops the Ran's second pshat that shetar kiddushin functions as a hachnah (exchange) rather than a mere kinyan nesina. This reading has profound implications for isuri hana'ah, mechubar, and the relationship between kesef and shetar.
