Review Session Tonight

Dear Talmidim,
All of you who have been in shiur in the course of last week are encouraged to participate in tonight's review session, at our regular time To pre-empt sound issues, please email me at ravronami@gmail.com with your SKYPE addresses so we can have a skype conference call in which everyone can participate.  The way we are going to run tonight's session - given the previous sound issues - is that everyone logs into the shiur as usual, but DOES NOT DO AUDIO SET UP WIZARD.  The audio for tonight's session instead will be the SKYPE conference call.
Please email me as soon as you see this message!

What Motivates the Gemara - and Edim Zomimin Not Sold as Slaves

We covered two main issues in last night's shiur:

a) What motivated the Gemara to offer an unlikely explanation of the Tanna Kamma - R. Yishmael Machloket as it relates to the payment of כופר based on value of Nizak vs. Mazik
b) The suggestion of Rav Hamnunah #1 as to why Edim Zomimin are not sold as slaves
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a) What motivated the Gemara to offer an unlikely explanation of the Tanna Kamma - R. Yishmael Machloket 
 

If you recall, the Gemara initially suggests that the basis of the TK/RY machloket regarding value of nizak / mazik was a function of whether כופרא is כפרה or ממונא.  According to TK, the value of nizak is paid since kufra is compensatory to the nizak's family; according to RY, the ox owner pays the value of the mazik since kufra is an atonement, and one is paying for the "value" of his OWN soul. 

This linkage is then broken by the Gemara, the suggestion being that both Tannaim hold that kufra is indeed kapara, but that the machloket between them hinges on whether or not to learn the Gezeira Shava from the case of the aborted fetuses.  According to the TK, we do learn such a Gezeira Shava and therefore the case למטה - below - is also based on דמי ניזק; according to RY, we do not learn such a Gezeira Shava, and therefore the ונתן פדיון נפשו reflects both the agenda of the payment (כפרה) and the basis of the payment (דמי מזיק)

What prompted the Gemara to go in this direction? What advantage does the Gemara see in promoting this latter approach?

We explained last night that it is an attempt to understand the opening baraita - ד דברים נאמרו בעדים זוממים as truly reflective of a consensus of opinion:
According to the first approach on the machloket TK and RY - that it's only RY who holds that כופרה  is כפרה, then we have to say that the original baraita, though it seemed to be a consensus view, is really only the view of one Tanna.  This is difficult to say!
According to the new proposal, though, in which both TK and RY hold that כופרה is כפרה - we can maintain that the opening baraita is indeed לדברי הכל - everyone's view - and that's why it is represented as such!'
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b) The suggestion of Rav Hamnunah #1 as to why Edim Zomimin are not sold as slaves

We spent a lot of time on the structure of this piece and noted two sections, both of which said סבר רב המנונא למימר הני מילי etc; we firstly pointed out that הני מילי are words of limitation -namely, narrowing the case of the baraita.  As opposed to understanding the baraita as a blanket statement that edim are NEVER sold as slaves, R. Hamnunah seems to limit this to a narrow situation, contrary to the plain pshat of the baraita.

Secondly, we noted that the Gemara seems to be rephrasing Rav Hamnunah a few lines later.  This is because there is an apparent kashya/difficulty with what he seems to have said.  The difficulty is so great that the Gemara concludes that he never really made the first statement.  What was the kashya in between that prompted the Gemara to rephrase Rav Hamnunah?

We spent the last part of the class going back over the הני מילי of Rav Hamnunah: He maintains that the only time the edim are not sold is when the accused has money; with this as the cas, they are not deemed to be conspiring to sell him; therefore, they are not sold.  However, notes RH, if they accused does not have money, then they are deemed to have conspired to sell him and they themselves are sold.

Although this is logical, it definitely "turns the baraita on its head" because the previous three cases of the baraita are all examples of halachot that, in a blanket fashion, do not apply to Edim Zomimin.  Rav Hamnunah seems to be saying that the fourth case is different because it's only not applicable to edim due to specific circumstances, not in principle.

The kashya of the Gemara on this version of RH will preoccupy us tonight!

Rethinking the Machloket between Rabanan and R. Yishmael

Last night, we saw how the Gemara rejected the initial suggestion that the machloket between the two views in the baraita hinges on כופרא כפרה or כופרא ממונא.  The latest suggestion is that כופרא כפרה according to both views in the baraita; the only machloket between them is whether
בדניזק שיימינן  or בדמזיק שיימינן - ie whether we measure the payment based on the value of the damager ie owner of the ox that gored, or the value of the ניזק - the value of the person killed.  We noted that this was not simply a restatement of the original baraita - but was stressing that the argument between TK and R. Yishmael is not an argument in principle, but rather, an argument based on more of a detail/technicality, if you will...

The Gemara goes on to ask what the טעמא of the Rabanan is - ie Tanna Kamma - because, as we explained, the view of R. Yishmael is clear: since כופרא is כפרה, the payment is measured on the basis of the person needing the atonement.  But the Gemara needs to elaborate the basis of the TK's view, which is less clear. 

The answer is a drasha - specifically, a Gezeira Shava from the earlier case of the aborted fetus due to the wrestling match between two men - to our case. In both cases the word השתה - or a variant of it, is used to describe the imposition of payment.  Above, it is clear that the payment is a type of compensation, and therefore goes according to the דמי ניזק; similarly, TK argues, the payment in our case is for the דמי ניזק - even though the goal of the payment is כפרה.  We explained that the Gezeira Shava is not a logical connection between the two topics, but a language connection: The common word in both contexts links the din irrespective of the different nature of the cases.  A Gezeira Shava can only be accepted if the Tanna/Tannaim speaking have an oral tradition to that effect....At the end of the shiur, we saw TK's retort, which we'll review at the start of today's shiur.

See you in shiur!

Kufra - Kapara or not?

Last night's shiur focused on certain key terms that continue to reappear throughout Shas, and we highlight them as a matter of course before tackling a sugyah.  Feel free to review the archive of last night's shiur to see the process; we will do it as much as possible in our upcoming sugyot.

The topic of the Gemara at this point is the the din that Edim Zomimin do not pay Kofer.  This is the payment for having one's ox (mu'ad) gore a person.  The ox owner has to make a payment that the Chumash calls "Kofer".  The Gemara raises the question : Whose view (amongst the Tannaim) is it that is represented by the baraita which exempts the Edim Zomimin from Kofer?

The answer provided is that it is R. Yishmael the son of R. Yochanan Ben Broka is the Tanna - because he holds, contrary to Tanna Kamma, that the basis of the payment is the value of the Mazik (owner of the killing ox), as opposed to the Nizak (one killed); this fits in with the view that the "Pidyon Nafsho" is the redemption/atonement for the owner's "nefesh".   He needs atonement.  As we discussed, the Gemara is about to reject this view and explain the machloket in the baraita differently.......that's tonight's learning!

No Kofer, Slaves or Knas Payment

ת"ר, ד' דברים נאמרו בעדים זוממין: אין נעשין בן גרושה ובן חלוצה, ואין גולין לערי מקלט, ואין משלמין את הכופר, ואין נמכרין בעבד עברי; משום ר"ע אמרו: אף אין משלמין ע"פ עצמן.

אין נעשין בן גרושה ובן חלוצה, כדאמרן. ואין גולין לערי מקלט, כדאמרן. ואין משלמין את הכופר, קסברי: כופרא כפרה, והני לאו בני כפרה נינהו.

מאן תנא כופרא כפרה? אמר רב חסדא: ר' ישמעאל בנו של ר' יוחנן בן ברוקה היא; דתניא: +שמות כ"א+ ונתן פדיון נפשו - דמי ניזק, רבי ישמעאל בנו של ר' יוחנן בן ברוקה אומר: דמי מזיק; מאי לאו בהא קא מיפלגי, דמר סבר: כופרא ממונא, ומר סבר: כופרא כפרה!

What does the Gemara wish to know with the question highlighted

in dark print (above)?

What does the following term mean - and how does it function whever it appears in a Gemara?

מאי לאו בהא קא מיפלגי 

אמר רב פפא: לא, דכולי עלמא כופרא כפרה, והכא בהא קא מיפלגי, מר סבר: בדניזק שיימינן, ומר סבר: בדמזיק שיימינן.

How does the above highlighted term always function in a sugyah?

What is it literal - and operative - translation?

מאי טעמייהו דרבנן? נאמר השתה למטה ונאמר השתה למעלה, מה להלן בדניזק, אף כאן בדניזק. ורבי ישמעאל? ונתן פדיון נפשו כתיב. ורבנן? אין, פדיון נפשו כתיב, מיהו כי שיימינן - בדניזק שיימינן.

Finally, what is the translation of the term highlighted above - and how is it used in the Gemara in general?

Sunday Night Chazara Slots

6pm/8/9 - Yehuda Trestman and Justin Land

6:20/8:20/9:20 Dov Ber Polisky + ?

6:40/8:40/9:40 Boaz and Carlos

Completing Ula's drasha, Lo Ta'aneh

We reviewed Ula's drasha last night (Wednesday night) and put extra effort into understanding the question that prompted the drasha.

Rashi is a little bit cryptic in his comments in Makkot.  After noting that the whole expression והצדיקו etc is extraneous - itself enough to raise a few eyebrows and prompt a drasha - Rashi also seems to say that the pasuk, as is, is misleading:

וכי כל מקום שהצדיקו ב"ד את הזכאי וחייבו את החייב יש מלקות דאתא קרא למיתלי מלקות בוהצדיקו והרשיעו

Rashi seems to say that the problem lies in the implication that every time the Beit din finds someone innocent and another liable, there will be lashes - and this is not true!  Lashes are not always the outcome of a judgement....

Ramban in Sefer Devarim de-emphasizes the Gemara's overt קושיא and instead focuses on the incongruity between the setting of the pasuk, which is a ריב בין אנשים - and the resultant lashes, which seem to imply a trangression between man and G-d.  The incongruity prompted the drasha.

Carlos asked how, according to Ula's drasha, we are to understand the new view of והרשיעו את הרשע - said in the singular...if, after all, there are two edim involved? I pointed out a commentary called the Aruch L'Ner who notes that the original pasuk ועשיתם לו כאשר זמם refers to the edim zomimin in the singular, as well - perhaps because they are conspiring together to incriminate someone else....and so the drasha of Ula is consistent with that style, of referring to this team of zomimin as one...

The Gemara then raises the question as to why it is that Ula had to find such a רמז - hint, if there's a more simple way to prove that the edim of our mishna get lashes - and that is that minimally, once incriminated, they are said to have transgressed the prohibition of issuing false edut.  This, like any other "lo ta'aseh" should mandate lashes in the absence of a specific din - ie the vacuum left by the drashot and lack of ka'asher zamam....the Gemara's answer is that Lo Ta'aneh is a Lo Ta'seh that has no deed (mere dibbur) and therefore is not subject to makkot.  I will review tonight for a couple of minutes what I thought the assumption of the Gemara may have been when it asked the question..

We concluded the shiur with a review of the "give and take"of the Gemara in digital form, back to the start of the sugyah.  I highly recommend doing this in order to map out the sugyahs we encounter, and you encounter, in your learning...

Final shiur of the week tonight, with Chazara on Sunday!

Ula's Creative Drasha

On Tuesday evening, we learned the middle of ב:  -  dealing with the drasha of Ula.  He asks,

"Where do we see a hint of Edim zomimin from the Torah?"

The Gemara had thought that he meant where do we see a hint for the main halacha/ punishment for classic e.z. from the Torah? Understanding the question this way, the Gemara retorts that this is not an issue - no need for a רמז - their punishment is explicit in the Torah!

The Gemara explains that Ula's question is: where do we see a hint in the Torah that in the cases of our mishna, we give the edim makkot instead of כאשר זמם?

The Gemara proceeds to cite a pasuk in Devarim 25:

א כִּי־יִֽהְיֶ֥ה רִיב֙ בֵּ֣ין אֲנָשִׁ֔ים וְנִגְּשׁ֥וּ אֶל־הַמִּשְׁפָּ֖ט וּשְׁפָט֑וּם וְהִצְדִּ֨יקוּ֙ אֶת־הַצַּדִּ֔יק וְהִרְשִׁ֖יעוּ אֶת־הָֽרָשָֽׁע: ב וְהָיָ֛ה אִם־בִּ֥ן הַכּ֖וֹת הָֽרָשָׁ֑ע וְהִפִּיל֤וֹ הַשֹּׁפֵט֙ וְהִכָּ֣הוּ לְפָנָ֔יו כְּדֵ֥י רִשְׁעָת֖וֹ בְּמִסְפָּֽר: ג אַרְבָּעִ֥ים יַכֶּ֖נּוּ לֹ֣א יֹסִ֑יף פֶּן־יֹסִ֨יף לְהַכֹּת֤וֹ עַל־אֵ֨לֶּה֙ מַכָּ֣ה רַבָּ֔ה וְנִקְלָ֥ה אָחִ֖יךָ לְעֵינֶֽיךָ

We noted in our session that the plain pshat of the pasuk is speaking about two people who are quarreling, go to court, one gets convicted while the other exonerated.  The one who is found guilty, if lashes are due to him, is lashed.  However, the pasuk is problematic, because a quarrel between two parties indicates a civil matter is at issue, while the words, to convict, to exonerate, etc, connote some sort of criminal or capital matter!

We noted that Ula's reinterpretation of the pasuk asserts that instead of the judges being מרשיע and מצדיק, it's the עדים מזימים - the second set of edim that exonerate the accused, Reuven, and make liable the original edim, who've they declared zomimin.  This is fundamentally different from the way the pasuk read earlier.  Now that the pasuk is read as referring to edim zomimin, the lashes in the verse that edim zomimin sometimes get lashes. Presumably, it's for the kinds of cases of our mishna.

Ula arrives at his conclusion via a rhetorical question that we did not fully complete in shiur and will complete on Wed night, bli neder!

 

No Literal כאשר זמם for Witnesses

On Monday evening, we continued the Gemara's inquiry as to why the characters in the mishna do not receive the classic כאשר זמם penalty.  

The first view expressed, that of Reish Lakish, argues that one of the pesukim regarding the עיר מקלט precludes this possibility. 

ה וַֽאֲשֶׁר֩ יָבֹ֨א אֶת־רֵעֵ֥הוּ בַיַּ֘עַר֘ לַחְטֹ֣ב עֵצִים֒ וְנִדְּחָ֨ה יָד֤וֹ בַגַּרְזֶן֙ לִכְרֹ֣ת הָעֵ֔ץ וְנָשַׁ֤ל הַבַּרְזֶל֙ מִן־הָעֵ֔ץ וּמָצָ֥א אֶת־רֵעֵ֖הוּ וָמֵ֑ת ה֗וּא יָנ֛וּס אֶל־אַחַ֥ת הֶעָֽרִים־הָאֵ֖לֶּה וָחָֽי

On the phrase הוא ינוס - RL derives - he - and not zomimin!

In other words, we can infer from the passage dealing with ערי מקלט that the Torah intended to say that only the actual accidental murderer will flee to such a city, but not עדים זוממים who tried to "frame" a person and send him, through their false accusations, to an עיר מקלט.  

We noted that there is no automatic license to make such inferences, or "diyukim" simply because the Torah is describing a specific incident and halacha - in this case: the laws of cities of refuge for manslaughterers.  There has to be something compelling in the language of the pasuk that mandates a drasha of this sort!  Here, we noted that the pasuk began with the phrase ואשר יבוא - with no specific reference to the third person male הוא; in Hebrew grammar, there is no necessity to mention the person who is performing the action if the conjugation indicates that it's third person male....Therefore, at the end of the pasuk, the word הוא , in the prhase הוא ינוס - is unnecessary.  This prompted the drasha - HIM - and not zomimin!

R. Yochanan, like his counterpart Bar Padah in the previous part of the sugyah, says that a Kal va'Chomer teaches this: A murderer, who did an action, is not exiled if he was Mezid (even if he is not killed). Edim Zomemim did not do an action. (all they did was utter a דיבור בעלמא - mere words) Therefore, we must conclude that all the more so they are not exiled even though they were Mezidim!   As we noted in class,  the premise of this proof is that cities of refuge are essentially punitive in their function.  The logic states that if the more severe behavior is not punished by exile to an עיר מקלט, how much more so should a less severe behavior, which is only in the category of dibbur, and not ma'aseh - speech and not deed. 

The Gemara responds by saying היא הנותנת - and Rashi explains that this is a קושיא on R. Yochanan - with the following pshat: This middah/quality that you just mentioned - namely, that the edim simply spoke but did not do an action - is the aspect that actually should give them a  חובת גלות - exile - even though actual murderers do not go to the עיר.  Since there is a כפרה /atonement component to the cities of refuge - only the more minor offense of dibbur and not ma'aseh warrants cities of refuge for the edim.

Because of this, the kal v'chomer cannot be the source of exemption for edim zomimin going to galut and receiving a different consequence instead.

This is why the Kal V'chomer does not work to exempt the edim from Galut - and the Gemara concludes that we must return to the original drasha of הוא ינוס of Reish Lakish.

Why Edim Zomimin are Not Exiled

Tonight, we will be continuing on ב: - this time with a sugyah that was parallel to our previous one.  When looking at the material, think of the format of the last sugyah -where the מנא הני מילי asked what the source was for the lack of application of כאשר זמם.  In the previous sugyah, the topic, as we saw, was בן גרושה etc - here, the Gemara wants to know why the law of חייב גלות does not apply:

- what is the Gemara's initial reasoning as to why it doesn't apply? See the pasuk being quoted inside the Chumash and see if you can figure out the basis of the drasha.
-What is the alternative view presented? How does the kal v'chomer work?
-Is the Kal V'chomer accepted or rejected?
-what is the Gemara's conclusion re: the basis for the exclusion?

Chazara Tonight (Sunday night!)

For those of you who have already been in touch with me - thank you for reserving your spots for tonight's Chazara.

For the other students who didn't have a chance to do so - regular shiur continues tomorrow evening at our regular time.  Watch your email for updates!

Ron-Ami Meyers

Answers to the Kushyot; Why Do Ben Grusha Edim Not Become Bnai Gerusha?

Answering the two Kushyot
The Ritvah explains that the mishna in Sanhedrin is the first example of a "kulah" or leniency within the realm of עדים זוממים - instead of receiving the more serious punishment ie שריפה, they receive the less severe one ie חנק.  Our mishna in Makkot is a continuation of the same pattern - cases SO lenient that there is no "remnant" of the כאשר זמם principle from the pasuk, but lashes instead.

Given the mishna in Sanhedrin, the Gemara's answer seems to be (with the help of Rashi)
a) that the title כיצד העדים נעשים זוממים is an appropriate opening line of the mishna.  Because the actual intent of the mishna is: "How do zomimin, (who have such an extreme leniency that they do not receive the punishment of zomimin at all) nevertheless get punished?" Na'asim in this context, means how do they nevertheless receive the punishment due to zomimin? According to the Gemara's answer, the term "zomimin" is not only appropriate for a set of edim that get the classic punishment, but also to the inherent "conspirator" status of the edim following the arrival of the second set.  How do zomimin (conspiring witnesses) who don't receive the classic "zomimin" penalty nevertheless receive their just dues?

b) the second question of the Gemara, namely, that if process is of interest, that's the topic of the mishna on 5a, automatically falls - our mishna is not interested in process, but in consequences.

Moving On
The Gemara then asks מנא הני מילי- and we explained that this meant that it's looking for the source for the din in the mishna that the edim who accuse Reuven of being a Ben Gerusha, themeselves do not become "B'nai Gerusha"?

The Gemara answers that it says in the pasuk ועשיתם לו - to him and not to his seed.  If you give the edim the status of bnai gerusha, you are imposing that status on their children after them.  Because a Chalal produces a Chalal.

The Gemara retorts by asking: "Why can't we invalidate the witnesses, but leave their children's Kohen status intact?"

Carlos said he didn't understand the question - after all, that's impossible! If someone is a Chalal, he cannot father a regular Kohen!

I tried to explain the concept in the following way: The retributive punishment of the edim zomimin is itself a chiddush - and giving a new halachic status, normatively a function of being born to a Chalal, is a bigger chiddush!  Therefore, why couldn't the edim become chalalim, with their children still remaining Kohanim!? After all, the whole status change is artificial.

Tonight, we are going to study the Gemara's answer to that question, and hopefully get to the top of ב:  by the end of Thursday evening's shiur.

Rewinding To Sanhedrin

General Usage of תנא התם קאי

We began last night's shiur by explaining the expression תנא התם קאי.  Parallel usages of the term in both the Gemara in Berachot and Ta'anit indicate that it always introduces an answer to a question.  In both Berachot and Ta'anit, the Gemara asks what the basis of an opening question of the mishna is - if we have no proof of a fundamental obligation in the first place....The Gemara in Berachot answers: תנא אקרא קאי - the Tanna in Berachot is basing himself on the pasuk which says that one must utter (the words of Shema) בשכבך ובקומך .  This triggers the question - "when does the nighttime Shema begin?"   In Ta'anit, the Gemara says תנא התם קאי -  there is a Tanna elsewhere who says that we mention "Gevurot Geshamim" in the bracha of "Techiyat Hametim".  This is the basis of the question in the mishna in Ta'anit - "from when do we start reciting משיב הרוח? "

Application To Our Gemara

Similarly, in our Gemara, we raised two difficulties about the wording of our mishna.  Our Gemara's answer is תנא התם קאי.  Our Tanna is spinning off of a mishna at the end of Sanhedrin that states that generally speaking, עדים זוממים receive the punishment that they intended to impose on the accused.  This holds true except for זוממי בת כהן ובועלה: Edim who implicatied the married daughter of a Kohen of having illicit relations with a man other than her husband.  Here, the בת כהן receives שריפה, burning, while the partner receives חנק -strangulation.  The drasha in Sanhedrin 90 establishes, based on the pasuk ועשיתם לו כאשר זמם לעשות לאחיו

That the extra word in the pasuk , לאחיו - to his brother, is meant to specifically address the case of a Kohen's daughter - ie that when there are two competing penalties to such witnesses, we administer the one due to the male partner, and not the Kohen's daughter.  In other words, the edim receive חנק and not שריפה. They are strangled and not burnt.

The Context of Our Mishna

With this in mind, our Gemara now re-reads our mishna as being part of a flow, ending in Sanhedrin: There are cases in which the "zamam" penalty departs from the normal rules (Sanhedrin) and there is a case in which it is not administered כל עיקר - at all (Rashi: כלל) - ie our mishna, where lashes are given instead of the typical penalty.

Our challenges:

- How is the mishna in Sanhedrin an eg of where the normal rules don't apply? After all, there is a question as to what punishment to administer, and the pasuk steers us in the direction of the man's penalty.  How is this is at all a departure from the regular rules of עדים זוממים? Dov Ber suggested that the witnesses' central thrust was to implicate the בת כהן, but I challenged that assumption...Here's one approach, of the Ritvah, courtesy of the Bar Ilan Responsa Project:

חידושי הריטב"א מסכת מכות דף ב עמוד א

 תנא התם קאי. פירוש אפרק הנחנקין דקתני כל הזוממין וכו' ויש עדים זוממין וכו', ק"ל מה תשובה יש בזה לתירוץ קושיתינו דאנן לא בעינן [תנא] היכא קאי דקתני הכי, וי"ל דקא מתרץ דתנא הכי קאמר כיצד העדים נעשין זוממין בלבד שאין בהם קיום הזמה אלא לשון זוממין בלבד, ומשום דפרק הנחנקין איירי בקולא דידהו במקצת שאין מקדימין למיתה החמורה אלא למיתה קלה, קתני הכא שיש עדים אחרים קלים יותר שאין בהם אלא לשון זוממין ומלקות בעלמא, ומכל מקום אין פירוש זה נכון דאכתי לא מיתרצא קושיין [ד]ועוד כדקתני לקמן הוא לפום מאי דפרישנא.

- How do we read this answer back into our mishna? How, at the end of the day, does this help explain the language of our mishna?

The Gemara's Two Kushyot

Introduction

Tonight, we distinguished between a שאלה, a question of inquiry by the Gemara like מאי טעמא (what's the logic/reason?) and מנא הני מילי (what is the basis of these words/this din?) - and a קושיא - a difficulty, problem, raised by the Gemara.

The Gemara's first question was clearly a קושיא - because -as we explained - the mishna seems to be the antithesis of the זוממין consequences we would have expected - ie כאשר זמם - as they conspired.  Instead of making the עדים a בן גרושה etc - the עדים receive lashes.  Same with חייב גלות.  So, when the Gemara says
"ועוד" to introduce its second question, it's clear that this is another קושיא/difficulty.

 

What is the Gemara's second קושיא?

According to the edition of Rashi in the Gemara, all the Gemara does is quote the mishna on ה. which teaches us that the second set saying עמנו הייתם brings on the ramifications of כאשר זמם, ie the retributive penalty that characterizes עדים זוממים.   What is the Gemara trying to convey by citing this mishna?

According to Rashi, the Gemara's questioning the very opening of our mishna כיצד העדים נעשים זוממים ?

What is the mishna doing asking this question? This is the topic of the mishna on דף ה. We explained that here, the Gemara is understanding the word נעשים in the mishna in terms of process. Why, asks the Gemara, is the mishna asking about the process of incriminating עדים when that process is the topic of another mishna?

The Gemara's תירוץ/answer

Some vocabulary words
התם there
קאי is referring

Compare to the first amud of Berachot

גמרא. תנא היכא קאי דקתני מאימתי? ותו, מאי שנא דתני בערבית ברישא? לתני דשחרית ברישא! - תנא אקרא קאי, דכתיב בשכבך ובקומך.

and the first amud of Ta'anit

גמרא. תנא היכא קאי דקתני מאימתי? - תנא התם קאי, דקתני: מזכירין גבורות גשמים בתחיית המתים, ושואלין בברכת השנים, והבדלה בחונן הדעת. וקתני: מאימתי מזכירין גבורות גשמים.

What does our Gemara mean when it says

?תנא התם קאי

What is the halacha in the mishna it is quoting - and how is it relevant to the content of our mishna 

תנא התם קאי: כל הזוממין מקדימין לאותה מיתה, חוץ מזוממי בת כהן ובועלה, שאין מקדימין לאותה מיתה אלא למיתה אחרת; ויש עדים זוממין אחרים, שאין עושין בהן דין הזמה כל עיקר אלא מלקות ארבעים, כיצד? מעידין אנו באיש פלוני שהוא בן גרושה או בן חלוצה, אין אומרים: יעשה זה בן גרושה או בן חלוצה תחתיו, אלא לוקה את הארבעים.

Review of Sunday Evening's Opening Shiur

Thanks to all of you who put up with the technical difficulties we ran into early on!  Hopefully, we've put these behind us....

 

We discussed some of the assumptions with which the mishna began - and that is the standard scenario of עדים זוממים and the halacha traditionally associated with them. 

To review:

Edim Zomimin are witnesses whose testimony is contradicted by a second set of witnesses, who declare that the first set could not have seen the legal event regarding which they are testifying, since the first set was with the second set in a completely different location at the time of the purported event. 

For a reason we did not delve into, the Torah believes the second set of witnesses over the first set.

Our mishna states that in the case of edim who become zomimin after having testified that Reuven was a כהן חלל- invalid Kohen - the edim do not themselves (though they are Kohanim) receive the status of חלל themselves (even though that would be the normative penalty for such a case), but rather they receive lashes.

In a similar vein, the mishna states that edim who become zomimin after having testified that Reuven killed someone accidentally and was therefore obligated to be exiled to a city of refuge/עיר מקלט - do not receive the punishment of exile themselves, but rather lashes.

The mishna does not tell us the reason for the difference in consequences.  This will be dealt with by the Gemara.

There are two difficulties with the text of the mishna, and they are the first problems raised by the Gemara:
a) If the phrase כיצד העדים נעשים זוממים means -'what is an example of edim suffering the consequences they intended to cause Reuven?' - then the mishna does just the opposite: It brings examples where those consequences are not suffered by the edim zomimin
b) If the phrase instead means - 'what is the process by which edim become edim zomimin?' - then the mishna has failed to do so.  There is no explicit process mentioned, describing how the testimony of the original edim would be challenged.

It is this "disconnect" between the mishna's question and the rest of the text of the mishna that Rashi was referring to when he said בגמרא מפרש מאי קאמר - the Gemara will explain what the mishna is saying.

• For Tuesday's shiur, see if you can find both a) and b) in the Gemara.
• Where do the Gemara's questions start and stop, respectively?
• What does the Gemara answer - and how does that answer relate to the two questions?

Welcome to our Webyeshiva Matmidim Shiur

This blog is your address for updates on this zman's nightly shiur in Gemara Makkot, פרק א

I will be posting daily updates, including sources and questions, to enhance our nightly learning.  Feel free to comment - I will make every effort to read and respond to your comments in a timely manner.

A precondition of understanding this first mishna is a brief summary of the mechanics of the halacha of עדים זוממין; here is a summary courtesy of dafyomi.co.il

(a) If two witnesses testify to a crime or an event and a later set of witnesses contradict their testimony by saying that the crime or event did not take place exactly as the first set of witnesses testified, all of the witnesses are termed Edim Mukchashin (contradictory witnesses), and Beis Din cannot use either testimony.

(b) If, however, two witnesses testify to a crime or an event and a later set of witnesses disqualify that testimony by saying that the first set of witnesses were with them in a different place at the time that the first set of witnesses claim that the act took place, the first witnesses are termed Edim Zomimin (conspiring witnesses). The Torah commands that the second set of witnesses are believed, rather than the first. In general, Edim Zomemin are punished with the punishment they tried to cause. (Devarim 19:16-21. See Mishnah Makos 5a.)

(c) The punishment of Edim Zomemin is only carried out on the Edim if they succeeded in convicting the defendant of the alleged crime ("Achar Gemar Din") but before the sentence is carried out. The Gemara (Daf 5b) learns this Halachah from the words of the verse, "Ka'asher Zamam La'asos, v'Lo Ka'asher Asa" - "as he conspired to do, but not as he conspired and did" (Devarim 19:19).

Mishna 1

 /מתני'/. כיצד העדים נעשים זוממין? מעידין אנו באיש פלוני שהוא בן גרושה או בן חלוצה, אין אומרים: יעשה זה בן גרושה או בן חלוצה תחתיו, אלא לוקה ארבעים; מעידין אנו באיש פלוני שהוא חייב לגלות, אין אומרים: יגלה זה תחתיו, אלא לוקה ארבעים

• What is the question of our mishna?
• What is the mishna's answer to this question?
• What cases does it cite?
• - to understand this, we have to understand what the status of the son of a Gerusha is and what "galut" is the mishna referring to?
• What is the din in each of these cases?
• What overall questions or difficulties do you have after learning this mishna?