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When witnesses testify against someone who is already nigmar dino, why aren't they killed as eid zomem? The shiur argues this sugya concerns kashya zomam principles, not gavra katila status. When witnesses plot to impose the exact same punishment Beis Din would impose anyway, it's not considered perverting justice.
This shiur analyzes a complex sugya in Makkos 5a dealing with the laws of eid zomem (plotting witnesses) and the status of someone who is nigmar dino (judgment finalized). The Gemara (גמרא) presents a case where two witnesses testify that Reuven killed Shimon, and then a second pair testifies about the same crime but disputes the timing. When the second witnesses are revealed as zomemim after the defendant was already nigmar dino, they are not executed. Rabbi Zweig begins by examining the approaches of Rashi (רש"י) and Tosafos (תוספות) regarding why someone is not considered a bar chiyuva (liable for punishment) before nigmar din. Rashi explains it's because the witnesses might do teshuvah and retract, while Tosafos says it's because we don't know if witnesses will actually come to testify (mi eimar de asu le'hasid). However, both approaches face a fundamental challenge from the Mishna's case of rova (overlapping testimony), where witnesses have already testified but can still be subject to hazamah.
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Makkos 5a
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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.
