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Can Beis Din execute someone with any of the four death penalties when unable to carry out the specific prescribed method? Tosafot and Rambam (רמב"ם) disagree whether this flexibility applies universally or only in cases of resistance, revealing a fundamental dispute about whether Beis Din's primary obligation is removal of evil or providing proper atonement.
This comprehensive analysis of Makkos 2a examines the principle of 'makdimin lo'osa misa' - giving someone the death penalty they were sentenced to receive. The shiur begins with Rashi (רש"י)'s explanation that witnesses (zomemim) receive the same punishment they intended to impose, then explores Tosafot's interpretation that if Beis Din cannot carry out the prescribed death penalty, they may substitute any of the four death penalties. A major difficulty emerges: the Gemara (גמרא) states that only regarding murderers and certain other specific cases can alternative death penalties be used, following the principle of 'shnei kesuvim haba'im ke'echad ein melamdin' (two verses teaching the same thing do not teach a general rule). Yet here, Tosafot seems to apply this flexibility universally.
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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.
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.
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