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Why does the Gemara (גמרא) classify eidim zomemim as nezikin when no actual damage was done? Tosfos wrestles with whether kasher zomem (conspiracy) versus kasher asah (execution) creates a fundamentally different obligation. The shiur develops a crucial chakira: whether the eidim zomemim pay exclusively for the avla against beis din, or whether kasher asah introduces a bein adam l'chavero component that makes it genuine tashlumin nezikin.
The shiur opens with a continuation of the topic of eidim zomemim (conspiring witnesses), focusing on the challenge of understanding when their obligation constitutes tashlumin nezikin (damages). The initial discussion involves the Rambam (רמב"ם)'s position in Hilchos Chovel uMazik, Perek 6, which the Gaon says derives from the Rambam in Hilchos Retzicha, Perek 3, halacha (הלכה) 13. The Rambam there describes a case where one must physically restrain a person (kofes et chavero) and place him in a position where water or hot water can harm him. The shiur questions why the Rambam requires this active restraint, and explores whether this requirement extends to cases of mayim (water damage) in nezikin. A fundamental distinction emerges between mayim and esh (fire). By esh, the fire itself is the killer—it consumes and burns the person. By mayim, however, the water is merely a grama; it prevents breathing but doesn't actively kill. This leads to a discussion of koach rishon versus koach sheini. Rashi (רש"י) in Sanhedrin holds that by mayim, the second place the water goes is considered koach sheini and would exempt the person from liability. The shiur challenges this: how can koach sheini be less than a ruach metzuya (common wind)? If the water's force is predictable and travels from place to place, why should liability be different than by esh?
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Bava Kamma 4b
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