Homestretch of our Mikvah Sugyah

Last night - Monday night - we did a review of our sugyah to date - after a lengthy break since Tuesday of last week.

Here are how the forces lined up:
R. Yehuda/Rav - hold that even if three lugin of drawn water are intact and then are invaded by a kortov of wine, and then fall into the mikvah, the mikvah is kosher
R. Chiya's baraita - הורידו את ה מקוה - in the exact same case, the baraita invalidates the mikvah
Rava - this is not a contradiction against Rav, but a machloket between the Tannaim, and Rav lined up with the lenient view.

Tanna Kamma: invalidates such a mikvah (like the Tanna of the baraita of R. Chiya)
R. Yochanan Ben Nuri: says such a mikvah is kosher (like Rav)

How do we know that TK of the upcoming mishna rules like the Tanna of R. Chiya's baraita? The TK seems to base his leniency for a mikvah on the fact that there was under 3 lugin of drawn water that fell in....but (inference): were TK to have been dealing with a full 3 lugin to begin with, he would invalidate the mikvah.

The Gemara now questions the basis of linking Rav ONLY to RYBN and linking R. Chiya's baraita to TK.  Couldn't it be, asks the Gemara that Rav EVEN lines up with TK?

The Gemara attempts to show - through R. Pappa's question - how this would occur:
Rav Pappa was uncertain as to whether Rav had the girsa/edition of a "Chaser Kortov" in the wine case (reisha) of the mishna.  One possibility is that the TK DID in fact have the girsa of "less a kortov" as we do in the mishna in front of us...  If so, Rava's linkage between Rav and RYBN - and not TK - was correct.  If, however, Rav did not have TK saying "chaser kortov" in the wine case- rather a full 3 lugin.......then the ruling of TK on the wine case is lenient EVEN IF THE WINE DROPPED INTO A FULL THREE LUGIN.  Put this way, Rav is consistent not only with RYBN, but even with the Tanna Kamma.


Since, the Gemara says, R. Pappa was entertaining such a possibility - and Rava was the rebbe of Rav Pappa, in whose name he often relied before making halachhic pronouncements - how could it be that Rava lined up Rav with RYBN and not Tanna Kamma, when Rava's student, Rav Pappa, still considered Rav as potentially consistent with Tanna Kamma?


The Gemara's answer:
Rava was nevertheless certain of Rav's edition of the reisha of the mishna, while R. Pappa remained uncertain...

Review of Tuesday night - Shiur for Wednesday unfortunately cancelled

As I’ve written, due to difficult travel conditions and a trip to Canada, the shiur I had hoped to give (even early!) this afternoon – will not take place.

To whatever extent I can minimize the lag between Tuesday’s class and next Monday’s shiur, here is a short summary of yesterday’s shiur:

We reviewed the interplay between Rav Yehuda/Rav and R. Chiya – on the one hand – and Tanna Kamma and R. Yochanan Ben Nuri on the other hand.

Here is the chart we saw last night:

Views from bottom of ג:	ג' לוגין מים + קורטוב יין		ג' לוגין מים חסר  קורטוב + קורטוב יין	Tanna of mishna
Rav Yehuda/Rav	Mikvah is Kosher		Everything goes according to the appearance (Rashi: Even if there were 3 full לוגין and then the wine dropped in) He paskens like RY/Rav	R. Yochanan Ben Nuri
Baraita of R. Chiya	Mikvah is Psula הורידו את המקוה		Mikva is Kosher (Rashi: Tanna Kamma of this mishna is only lenient, not invalidating the mikvah, in the case where the 3 lugin of water was not complete prior to the wine dropping in.   Therefore, the mikvah is kosher.)  However, were this same TK to be presented with a case like that of R. Yehuda/Rav/R. Chiyah’s baraita, he would rule like R. Chiya, who said הורידו את המקוה	Tanna Kamma

As I said in shiur, the goal of the Gemara is to validate the view of Rav Yehuda/Rav as being based on a legitimate Tannaitic view.  After all, R. Chiyah quoted a baraita

תני רבי חייא – and if Rav Yehuda/Rav is going to survive the attack questions of R. Kahana, he must provide Tannaitic back-up.

Make sure you know the chart above before you go to the next step.

The Gemara then asks the following question:

הא מיבעיא בעי לה רב פפא

But Rav Pappa had a question (Rashi: the Gemara’s goal is to question the limiting of Rav Yehuda/Rav’s view to that of R. Yochanan Ben Nuri, to the exclusion of Tanna Kamma of that mishna.  The Gemara wants to establish that Rav is also consistent with the view of Tanna Kamma/Rabbanan of that mishna)

דבעי רב פפא:

As R. Pappa asked:

רב תני חסר קורטוב ברישא, אבל שלשה לוגין לתנא קמא פסלי, ואתא ר' יוחנן למימר: הכל הולך אחר המראה, ורב אומר כר' יוחנן בן נורי;

(This first approach is exactly the way we’d explained Rav until now, that he lines up with R. Yochanan Ben Nuri, and R. Chiyah with Tanna Kamma) Did Rav have the text of “less a Kortov” in the opening case of the mishna, ie the wine case, but in the case of a full 3 lugin, Tanna Kamma would say the mikvah is psula – and R. Yochanan comes to say “everything goes according to the appearance” (thereby maintaining that even when there are 3 full lugin, and then the kortov drops in the mikvah is kosher)?  And Rav goes according to this view of RYBN?  (WE’LL CALL THIS APPROACH #1)

או דלמא רב לא תני חסר קורטוב ברישא,

Or perhaps, Rav does not have the edition of “less a Kortov” in the first case of the mishna (instead, it’s a full 3 lugin of water before the wine falls in  - and nevertheless the TK says the mikvah is kosher)

ור' יוחנן בן נורי כי פליג - אסיפא הוא דפליג, ורב דאמר כדברי הכל?

And when R. Yochanan Ben Nuri disagrees, he disagrees with the ruling of TK on the case of the milk. (In the milk case, the situation is “less a kortov” and TK says the mikvah is kosher because there are not 3 full lugin of water, and RYBN disagrees, using his principle of “everything goes according to the appearance”) – and Rav says what he says (regarding the 3 full lugin + wine = kosher mikvah) according to everyone – ie both RYBN and TK! (because both agree with this ruling)

It is this last point that completes the flow of this stage of the Gemara: Rav Pappa entertained the possibility that Rav could be ruling like both TK and RYBN – so why was he artificially linked only to RYBN??

Review of Monday - Tonight's shiur back on Webyeshiva site

Tonight, due to log in problems for some students, we will be back on Webex, ie Webyeshiva.org's website

On Monday night, we delved more into the mishna cited by Rava as the basis for the machloket between Rav and R. Chiya.

To review: 
In the case of 3 לוגין of water into which a קורטוב of wine dropped,
Rav Yehuda/Rav paskens that the mikvah is kosher - reasoning? It has a status of "diluted wine"
R. Chiya, however, cites a baraita that says - in the same fact situation -  הורידו את המקוה - which Rashi explains to mean: "Invalidate the mikva"

Rava explains that Rav is not contradicting R. Chiyah's baraita.  Rather, Rav has taken one side of a known Tannaitic debate, in a mishna in Masechet Mikva'aot.

The דתנן at the bottom of the page is the presentation of the issue as a machloket Tannaim.
The case - as we explained yesterday - is slightly different than ours - but we can infer from it halachic positions that match the views of Rav and the baraita of R. Chiya, respectively

The mishna deals with a case of 3 לוגין of drawn water MINUS a קורטוב, and the wine fills in the last קורטוב of the 3 לוגין - or a similar case in which milk dropped in.  In both cases, the mikva is kosher. 

Rashi helps us understand that the Tanna Kamma would invalidate the mikva were it to have had the full 3 לוגין of water before the wine dropped in.  Were it to have had the full amount, it would already have had the status of a "3 לוגין of מים שאובין" and could not have been transformed.  Tanna Kamma therefore lines up with R. Chiya's baraita.
However, R. Yochanan ben Nuri, who says הכל הולך אחר המראה - everything goes after the appearance, rules that even if 3 לוגין were present before the wine dropped in, such a mixture would not invalidate the mikvah.  This lines up with Rav!

Maintaining the Mikvah

Our new mini-sugyah deals with the status of a mikveh impacted by three לוגים of מים שאובין - or 'drawn water'; מים שאובין invalidates a mikvah מדרבנן.  The rule of Rav Yehuda is that 3 לוגים of such water that had one קרטוב of wine drop into it - and then the mixture dropped into the mikvah - do NOT invalidate the mikvah.  

Rav Kahana, who has been attacking R. Yehuda's halachot since the top of our amud, questions why this case - in which the mikvah is kosher - is different than the case of colored water of the same measure -that invalidates a mikvah according to R. Yosi in a mishna.

Rava's answer: the latter case has the status of colored water- and therefore, of מים שאויבים - whereas the former is called "diluted wine".  Diluted wine is not water and therefore does not invalidate the mikvah...

The Gemara does not accept this distinction, since R. Chiyah recounted a baraita that says that both the cases of wine and colored water both invalidate a mikvah.  So we are back to the question as to how R. Yehuda can say that the wine case still does not invlalidate a mikvah.  Rava answers in the Gemara - this issue of the debate between R. Yehuda and R.Chiya represents a long-standing machloket Tannaim.....and each one of these Amoraim 'sides' with his own Tanna....

Sunday Chazara, Nov 21st

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מתנה על מה שכתוב בתורה

The Gemara made an initial assumption when it saw Shmuel's ruling regarding the Shemitta year; in the case, a lender made a תנאי with the borrower - to the effect that the Shemitta would not cancel a loan.  Shmuel rules that this תנאי  is בטל - or invalid. The Gemara assumes that this is called מתנה על מה שכתוב בתורה and that when one is מתנה, the תנאי is בטל or invalid.

The Gemara raises a parallel case in אונאה - which is cheating another person in a business deal. There, Rav rules that a תנאי that makes it not subject to אונאה doesn't work, while Shmuel rules that is does work.

This seems to be an internal contradiction in Shmuel; here - he seems to hold מתנה ע"מ שכתוב בתורה תנאו קיים !

Rav Anan reports that Shmuel once made the following distinction for him:
If the language of the request is to have a particular monetary right waived, then the תנאי works; if the language of the deal tries to make a תנאי that either Shemitta does not cancel loans or אונאה does not exist in a case of overcharging - then such a clause is not a halachic תנאי - and is invalid.

Coming out of this: Although Shmuel rules that מתנה works, the earlier case is NOT ONE OF מתנה - and that's why it doesn't work!!!

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Prozbul - from Rabbinical Council of America Posting

"The rationale behind the historic takkanah (or decree) should be very familiar to us, faced as we are with the current credit crisis that has confounded contemporary financial markets. In the run up to the Sabbatical year of that time, Hillel saw that credit was drying up because potential creditors saw little means of collecting on their loans after the Sabbatical year had come and gone. The result would be a catastrophe for the poor, if not a meltdown of the entire economy. So Hillel found a legitimate way (actually it was implicit in the Torah's own formulation of the Sabbatical laws, but he made the provision explicit) to have the rabbinic courts of his day act as guarantors of outstanding loans (or more precisely to take over the loans, so as to collect them on behalf of the creditors when they came due.) '

Rav Yehuda and Our Mishna

On Sunday evening, we reviewed what we had done to date in the new sugyah:

The mishna rules that the edim zomimin pay the differential and not the full amount of the purported loan, since he was going to have to pay the full loan back eventually.

Rav Yehuda/Shmuel rule that a ten year loan is cancelled by Shemitta and that the reading of the pasuk is "don't claim the  money (even at the end of the ten year period" - because a שמיטה occurred prior to that .

Rav Kahana raises an objection to this ruling based on our mishna: If ten year loans were canceled by Shemitta, then the edim would have had to have paid the entire amount; by testifying that the loan is due within 30 days, they are effectively making Reuven part with 1000 zuz he would not otherwise have parted with!  It must be, therefore, that such a loan is not canceled  - and Rav Yehuda/Shmuel are wrong

Rava answers on behalf of Rav Yehuda/Shmuel by limiting the case of the mishna to either a case of 
מוסר שטרותיו לב"ד
cמלוה על המשכון

Both of these scenarios, Rashi explains, prevent the cancellation of the loan - because neither is a loan in which we can say לא יגוש.  Why? Rashi: In both scenarios, the lender would not legally be deemed to be demanding anything back; in the case of lending with collateral, the loan is - so to speak - already "collected" in the form of the collateral.  Therefore, there cannot be any legal "demand fo repayment" of that loan; in the case of מוסר שטרותיו - Rashi explains that it is not the actual giving over of the שטרות to the Beit Din, but rather the making of a declaration before Beit Din, that's considered as if I'd already given my שטרות to them - this is the Prozbul that Hillel initiated.  Here the loan is not cancelled, because (new explanation) it is not a private individual claiming the loan, but a public body/court.

Therefore, in principle, we stick with Rav Yehuda/Shmuel, and limit the mishna's non-cancellation rule to specific cases.

We began seeing the flip-side version of this mini=sugyah at the end of yesterday's session - and we will review that tonight.......

30 DAY vs. 1O YR LOANS

Last night we began the newest mishna, at the bottom of דף ג - in which edim zomimin testify that a person took out a loan to be repaid in 30 days, they were huzam, and the accused claims that it was a loan for ten years....

The mishna rules that the "ka'asher zamam" of the edim zomimin is: the amount that a person would be willing to pay to have a loan extended from 30 days to 10 years....It's not the total value of the purported loan that they owe, but the value above....

The Gemara starts with the statement of R. Yehuda/ Shmuel - who says that a loan issued for 10 years is cancelled by the Shemitta.  Even though, says R. Yehuda, we don't call it לא יגוש now, it will in the end be לא יגוש.  Most of our discussion centered on this statement and the accompanying Rashi.

The pasuk referred to says that one should not claim money of a loan from a fellow Jew, because a Shemitta/cancellation has been declared by Hashem...R. Yehuda in the end holds that the loan is cancelled...but there was a "hava amina" that such a loan would not be cancelled since you could read the pasuk that the only loans that would be canceled are loans regarding which the Torah, because of Shemittah, would have to tell you not to approach the borrower for repayment..however, a loan due only after 10 years would not be included, since your arrangement with the borrower would itself dictate that you cannot approach him for repayment!!!

In the end, the loan is cancelled because the pasuk is read, "Don't approach him after the 10 years are up - because a Shemitta was called earlier."  This reading of the pasuk means that loans issued for 10 years are indeed cancelled....

Our question tonight: How is our mishna going to be contradicting Rav Yehuda's statement?

The Last Steps of Rav Yehuda Amar Rav

Tosafot's final pshat in עדות שקר העדתי is that the admission by one witness of the false testimony was followed by a hazama of them both.  According to this pshat, the obligation to pay devolves on the other ed -- the ed left holding the bag, as one student put it.   Why? They were both huzam, but the ed that admitted his guilt prior to the hazama is relieved of the payment, which is a special penalty of the Torah, ka'asher zamam...We explained that there was perhaps a policy reason for the Torah to relieve the person of his penalty if he "comes clean" and does teshuva...

This new pshat is followed by the Gemara's kashya/difficulty: "Does he have the ability to do this? Once he has testified, he cannot withdraw his testimony" in Hebrew כיון שהגיד שוב אינו חוזר ומגיד; I tried to argue last night that there was a serious "hava amina" - or assumption in the Gemara that - despite the fact that one cannot withdraw testimony - and the ramifications of the false testimony do impact on the initial accused - the penalty of "ka'asher zamam" functions differently - and is mitigated by an admission...the Gemara's retort is that the two are intertwined: You cannot possibly separate the irreversible nature of the edut/testimony from the penalty of the ka'asher zamam - one flows from the other!  So since the testimony cannot be withdrawn, neither can the "ka'asher zamam" be cancelled...

This leaves us in a real difficulty - because we don't yet have a pshat in Rav Yehuda/Rav - all of our efforts have been in vain!

The Gemara's response: the case is that one ed came to a second Beit Din and admitted that he and his friend (who doesn't admit this) were huzam in a first Beit Din.  He, the contrite ed, has to pay.  That's what Rav Yehuda/Rav was referring to!

The Gemara's response? This approach is unlike that of R. Akiva, who holds that admission of Hazama = admission of a Knas, and R. Akiva holds that מודה בקנס פטור.  We explained that although Rav could in fact disagree with R. Akiva....but the Gemara was searching for a consensus - a way of saying that Rav agreed with all of Tannaim...

New Pshat?  The ed adds a detail: we were also מחוייב ממון - obligated to pay - this transforms it into a pure monetary obligation, and takes it out of the realm of Knas, such that R. Akiva could even agree that the admission generates an obligation to pay.

The chiddush? Even though the basis of the admission is that only one ed reported the event, and he cannot obligate his friend, his admission was enough to obligate him (the admitting ed) to pay!

Monday's Shiur

First of all, thank you to all of you for participating in the ground-breaking "Microsoft Live Meeting" Chazara last night.  Thank you, too, for your feedback on the quality of the interaction.  I especially appreciated the video feature of having anyone who was talking at a particular point in time - featured in the "guest video box".

As I said, we are working towards moving over to MLM as our main shiur framework.  As of last night, three regular attendees did not have this tool working yet for them.  In the next few days, I hope that our technician will be able to help them solve the issue.  In the meantime, tonight's shiur will take place in the regular Webyeshiva format, on Webex, until we bring this issue to closure.  Please log on as usual tonight through the WY site.

Tonight, I hope to finish with you the piece on אמר רב יהודה אמר רב at the top of דף ג - there's a surprise twist in our understanding of the pshat - coming up - so fasten your Talmudic seatbelts!

Gemara Matimidim on Live Meeting

I am pleased to say that our Matmidim Focused Track is going to be the first shiur to experiment with the much easier-to-use (hopefully?) and 'cleaner' Microsoft Live Meeting.  My hope is that with Live Meeting, we will all be able to participate more easily, without having a SKYPE videoconference alongside our video.  I am hoping to have the session set up for this evening's Chazara.  
Stay tuned to your email inbox and our blog

www.webmakkot.blogspot.com for further details in the course of the day!
Once again, it is most advisable to have a headset of your own with a mike attached.  Better ones  - that will last a long time - can be purchased for $30 + at your local Walmart or Computer store!

I will be in touch in the course of the day.

Chodesh tov

Ron-Ami Meyers

The Mystery of Rav's Halacha

After reviewing the two possibilities which the Gemara has presented to date - as to what Rav Yehuda/Rav meant when he said עד זומם משלם לפי חלקו - we continued to the new approach of Rava  באומר עדות שקר העדתי - Rav was speaking of a case in which the witness said/admitted that he had testified falsely.

Explaining Rava hinges on two factors:
a) understanding Rava's scenario
b) once that is clear, answering the question as to how this new scenario generates an obligation for the witness to pay

We went "back and forth" with numerous creative suggestions; some suggested that he had gone to a different Bet Din and admitted this; we noted that admission of his lie should exempt, not obligate him, at least - according to Rabbi Akiva....One student responded that maybe Rava paskens like Rabanan of the earlier Baraita, for whom admission of hazama does not generate an exemption, but an obligation........

Then we saw the ב"ח - commentary of the "Bayit Chadash" - R. Yoel Sirkes  - on the Gemara.  He explains that the obligation to pay is based on a principle called דינא דגרמי and that the term עד זומם is לאו דוקא ie not literally an עד זומם but rather an עד שקר - a false witness.

We explained: 
The scenario, according to the Bach, is not a case of עדים זוממים at all! Rather, it's a case where edim, for eg, testified that Reuven owes $1000 and he actually ends up paying the thousand dollars.  Later, one of the edim admits that he lied.  Rava/Rav Yehuda-Rav are holding that this witness is חייב based on a principle of דינא דגרמי, the details of which can be found in the most recent post.  It is a halacha in the dinim of indirect causation that triggers the payment, not a special "chiddush" of כאשר זמם ....He is paying independently, as a מזיק - one who caused damage...

Now this seemingly requires a bit of a logical jump - since Rav used the term עד זומם -while this explanation takes him less than literally...But, we explained, this may be the point of the Gemara: that the original statement of Rav, which the Gemara had cited ASSUMING that the din quoted relates to "classic ed zomem" rules - is really totally unrelated to the din of edim zomimin.  After two suggestions that failed:
a) because one principle was already in a mishna
b) because the second explanation contradicts the known rule (baraita) that no classic ed zomem will pay unless both are "huzam"

...the Gemara is forced to explain Rav as making a statement unrelated to edim zomimin. And we explained that this pshat is okay.  Why? Rav was not speaking in the context of our sugyah: our Gemara cited this statement of Rav, assuming that he was. Analysis proved otherwise...

We ended the discussion with the first words of Tosafot, who says, after quoting Rav, ושוב הוזם - meaning - after the witness said עדות שקר העדתי - he was הוזם ! This comment shows that Tosafot does NOT go in Bach's direction at all - but tries to make sense of Rava by sticking to the format of classic עדים זוממים...Tonight's shiur will be dedicated to figuring out how Tosafot learns our sugyah!

GERAMA AND GARME

from http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0007_0_07190.html

(Aram. גְּרָמָא, גְּרָמֵי), terms variously used in the Talmud to describe tortious damage caused indirectly by the tortfeasor's person. The following acts are examples cited of garme damage: a judge delivering an erroneous decision resulting in damage to another; burning another's bond – thus preventing him from recovering his debt; a banker giving an erroneous valuation of coins – causing them to be acquired at a loss; damaging mortgaged property held by a creditor – thus reducing the value of his security; informing on another's property to bandits – thus causing them to take it away. Opinion is divided in the Talmud over the question of liability for this kind of tort (BK 98b; 100a; 117b); some of the sages maintain that liability does exist, while others exclude it. In other cases – similar to those cited above – the damage is termed gerama (BK 48b; 60a; BB 22b), but here liability is excluded. Examples of gerama damage are placing a ladder by a pigeon loft, enabling a weasel to climb up and eat the pigeons; setting a fire by means of the wind resulting in a conflagration; allowing an animal to trespass onto another's land, where it falls into a well so that its corpse pollutes the water. Other cases which were later interpreted as gerama are bending the stalks of grain in another's field toward an approaching fire so that they catch fire; placing poison in the path of another's animal, causing it to eat this and die; sending a burning object through a minor or an idiot, who is irresponsible and thus causes damage; inciting another's dog to bite a third person; frightening another to the extent that he suffers injury or damage from such fright; leaving a broken vessel on public ground so that the pieces cause injury (BK 24b; 55b–56a). Even the earliest of the post-talmudic commentators found difficulty in explaining the difference between gerama damage, for which the Talmud does not impose any liability, and garme damage, for which talmudic opinion differs as to whether there is liability or not. According to Rashi (to BB 22b, S.V. gerama; see Sh. Ar., ḤM 386:4), there is no difference between the two concepts – and that those sages who exclude liability for garme damage also exclude it in cases of gerama damage, and vice versa. Some of the tosafists maintain (BB 22b, S.V. zot omeret) that, indeed, in strict law there is no distinction and that there is no liability in either case – save that the more common injuries are called garme and that those sages who impose liability for garme damage do so in the sense of fining the tortfeasor for the sake of public order. However, according to the majority of the tosafists, all indirect damage that is an immediate result of the tortfeasor is termed garme, whereas all other acts of indirect damage are called gerama – in respect of which the sages are unanimous in excluding liability. There are also further distinctions between gerama and garme damage, which all present difficulties and which are all less acceptable. It appears that the two categories can be distinguished by using gerama to refer to indirect damage that is too remote to have been foreseeable, and garme to refer to indirect damage that should have been foreseeable – but which was caused solely by the independent act of a second person who acted negligently following the first person's act, while he could have refrained from doing that which resulted in the damage. In the latter situation, some sages maintain that the first person is exempt from liability, even though he could have foreseen that his act would result in the negligent act of the second person – who is held to be solely responsible. On the other hand, others hold the first person liable, just because he should have foreseen that his own act would result in the negligent act of the second person. According to this distinction, therefore, the loss sustained by someone acting on the advice of an expert is garme damage – because he should have realized that other experts should be consulted before he acted on one expert's advice and he was himself negligent in failing to take such second opinions. If, however, the matter is such that only one suitable expert is available and there is no choice but to rely exclusively on his advice, it is not a case of garme damage, and it is the unanimous opinion that the expert is liable for the consequences of his negligent advice. The halakhah is that a person is liable for garme damage, although it is disputed in the codes whether such liability stems from the strict law or is in the nature of a fine for the sake of public order, as mentioned above. The law applicable in the State of Israel is the Civil Wrongs Ordinance, 1947, which makes a person liable for the natural consequences of his conduct – but not if the decisive cause of the damage is the fault of another. An expert is held liable for giving negligent declarations and opinions.

[Shalom Albeck]

BIBLIOGRAPHY:

Gulak, Yesodei, 1 (1922), 157; 2 (1922), 24, 182, 206–9; 4 (1922), 162f.; Herzog, Institutions, 2 (1939), 311 (index), S.V.; ET, 6 (1954), 461–97; 7 (1956), 382–96; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965), 43–61; B. Cohen, Jewish and Roman Law, 2 (1966), 578–609, addenda 788–92. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:195, 330; ibid., Jewish Law (1994), 1:219f, 396; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Sefarad u-Zefon Afrikah (legal digest), 2 (1986), 295–96; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Ashkenaz, Zarefat ve-Italyah (legal digest) (1997), 205; A. Lichtenstein, Dina de-Garme (2000); M. Drori, "Causality in Jewish Tort Law: Implementation of Principles in Israeli Public Law," in: Tehumin, 26 (2005).

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Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.

What did Rav Yehuda Mean?

On Tuesday evening, we began the new piece on Makkot 3a -

אמר רב יהודה אמר רב  : עד זומם משלם לפי חלקו - which literally means that an ed zomem (singular) pays according to his portion.'

So far, we have seen two possible explanations for this halacha, and both are rejected.  The first came in the form of the plain pshat of the statement - namely, in a regular hazama case, when two edim are implicated for having tried to cause the loss of money to Reuven (for eg, they testify that Reuven owes $1000 loan) they each must pay $500 to their intended victim - and not each $1000.  Because apparently, we may have thought that to implement what each was independently intending to do was to cause a loss of $1000 to Reuven - so maybe each pays 1000? According to this explanation Rav Yehuda/Rav were coming to teach that the in the case of money, the payment is divided according to each of their roles in the edut: 500 a piece.

The Gemara, however, rejects this pshat, not because the halacha is not correct, but because this was taught in a mishna later on in the first perek of Makkkot: משלשין בממון - to which Rashi gives two explanations - both of which explain that the responsibility of witnesses in a zomimin case is equally divided amongst them, as a function of their number.  (four edim divide payment four ways, etc)

So the next suggestion by the Gemara is that Rav Yehuda/Rav meant that if only one is "huzam" - then he pays 'his portion' ie his contribution to the incrimination. But the Gemara rejects this possibility because it's simply not true - there is a baraita that says that no ed zomem pays anything unless all the edim who testified are 'huzam' - therefore, there cannot be a scenario in which only one guy is huzam and pays.  If not all are huzam, nobody is huzam!

Today's session will continue the quest for the pshat in Rav Yehuda/Rav

See you in shiur!