QUESTION: The Mishnah states that when witnesses testify that a Kohen is a Ben Gerushah (the son of a divorced woman married to a Kohen), Beis Din does not punish the witnesses by giving each one the status of a Ben Gerushah. Rather, they are punished with Malkus.

The wording of the Mishnah implies that the only punishment the witnesses receive is a single set of Malkus; they receive no other punishment.

Why do they receive no other punishment? The witnesses should be required to pay the Kohen for all of the Terumah and other Matnos Kehunah that he would not have received due to their testimony! (RISHONIM)

(a) The RASHBA, cited by the RITVA, explains that it is unlikely that the Torah would require the Edim Zomemim to be punished with a punishment that has yet to be determined. The verse "Ka'asher Zamam" (Devarim 19:19) refers only to a specific punishment that the witnesses would have caused the defendant to receive had they succeeded with their plot. Since the amount of Terumah that the Kohen will receive is not yet determined at the time of the trial, the Torah does not intend that the Edim Zomemim receive the punishment that will be determined only with the passing of time, when people give their Terumah to the Kohen. Therefore, the Edim Zomemim do not have to pay for the loss of the Matnos Kehunah that they tried to cause to the Kohen. (See ARUCH LA'NER.)

(b) The RAMBAN answers that at the time of the court case, it was not at all certain that the Kohen would ever receive Terumah or Matnos Kehunah in the future. Therefore, the loss of Matnos Kehunah is not a definite effect of the testimony, but rather it is an indirect consequence (a "Gerama"). The verse says that the Edim Zomemim must be punished for "what they plotted to do" ("Ka'asher Zamam la'Asos"), and not for a loss that they plotted to cause indirectly.

Why does the Rashba not give the same answer as the Ramban?

The Ramban and Rashba seem to disagree about why the Torah prescribes a punishment of "Ka'asher Zamam" for Edim Zomemim. The Ramban maintains that the purpose of the punishment is to deter witnesses from testifying falsely. (This is why the testimony of witnesses is not valid when the witnesses cannot be made into Edim Zomemim -- "Edus she'Iy Atah Yachol l'Hazimah.") The deterrent for the testimony must be adjusted in accordance with the potential results of the testimony. Testimony which could harm the defendant in a more severe way tempts the witnesses more strongly to testify falsely, and therefore it needs a more powerful deterrent. Therefore, it suffices for the deterrent of "Ka'asher Zamam" to be equivalent to what the witnesses thought they were going to accomplish with their testimony. Since the witnesses could not be certain that their testimony would harm the defendant with regard to causing him to lose the Matnos Kehunah (because perhaps no one will offer those gifts to him), their intention was only to disqualify the Kohen from being able to perform the Avodah in the Beis ha'Mikdash.

The Rashba, on the other hand, understands that the Torah prescribes a punishment of "Ka'asher Zamam" because it is the most appropriate form of justice that can be applied. By punishing the Edim with a punishment of "Ka'asher Zamam," the witnesses suffer in exact proportion to the suffering they intended to cause. Consequently, the punishment should not depend on what the witnesses knew for certain that the defendant would suffer from; rather, if Beis Din now determines that the defendant would have suffered in an additional way, then Beis Din should now apply that additional punishment to the witnesses. That is why the Rashba asserts that had it not been for the fact that the loss of Matnos Kehunah is an undetermined sum, Beis Din indeed would have made the witnesses pay every time the Kohen receives Matnos Kehunah.

This understanding of the argument between the Ramban and Rashba might explain another argument between the Rishonim. RASHI writes that when the Mishnah says that Beis Din does not give the witnesses the status of a Ben Gerushah, it refers to witnesses who are Kohanim (because if they are not Kohanim, it is obvious that they receive only Malkus). The RITVA, however, says in the name of TOSFOS that one might have thought that even when the witnesses are not Kohanim they should be punished by being treated like Bnei Gerushah by making their daughters and wives unfit to marry Kohanim.

Rashi might understand the punishment of Edim Zomemim like the Ramban; its purpose is to deter the witnesses from testifying falsely. Hence, when the witnesses themselves will not be affected by the testimony, but only their wives and children will become invalid from marrying Kohanim, it will not deter them from testifying falsely if their lie will have a potentially much greater effect on the Kohen. Therefore, the Mishnah would not have assumed that Beis Din applies the punishment of "Ka'asher Zamam" in such a manner.

Tosfos, however, might learn like the Rashba and understands that the punishment of Edim Zomemim is merely a punishment that fits the crime. If the witnesses are not Kohanim and cannot be made into Bnei Gerushah themselves, nevertheless the punishment still would fit the crime if Beis Din renders them to Bnei Gerushah with regard to their wives and daughters.

(c) TOSFOS, cited by the Ritva, explains that Beis Din cannot obligate the witnesses to pay for the Matnos Kehunah for the same reason Beis Din cannot make the witnesses into Bnei Gerushah. The Gemara says that the witnesses do not become Bnei Gerushah because that punishment would affect the status of their children. If, on the other hand, only they are rendered Bnei Gerushah but not their offspring, then "Ka'asher Zamam" is not being applied in the proper way; it is being applied only partially. Similarly, if Beis Din cannot make the witness himself into a Ben Gerushah, Beis Din also cannot obligate him to pay for the Matnos Kehunah, since that would be a partial application of "Ka'asher Zamam."

Why do the Ramban and Rashba not suggest this seemingly simple answer?

Perhaps the Ramban and Rashba maintain that the Gemara's logic applies only when a single punishment is split, whereby a new "half-punishment" is created. (For example, Beis Din cannot make the witnesses into Bnei Gerushah whose children will be permitted to marry Kohanim.) However, the punishment of paying for Matnos Kehunah is a secondary punishment that is entirely independent from the punishment of making the witnesses into Bnei Gerushah. That punishment can be applied in full and is not a half-punishment.

QUESTION: The Mishnah states that when witnesses testify that a Kohen is a Ben Gerushah (the son of a divorced woman married to a Kohen) or that he is a Ben Chalutzah (the son of a woman who had performed Chalitzah with her brother-in-law and then married a Kohen), Beis Din does not punish the witnesses by giving each one the status of a Ben Gerushah or the status of a Ben Chalutzah. Rather, they are punished with Malkus.

Why does the Mishnah require that Edim Zomemim receive Malkus when they testify falsely that a Kohen is a Ben Chalutzah? Being a Ben Chalutzah is not a Pesul mid'Oraisa and it does not blemish the Kohen's status in any way mid'Oraisa! While it is true that the Rabanan would probably administer Malkus mid'Rabanan to witnesses who testify falsely that a Kohen is a Ben Chalutzah, the Mishnah is teaching Halachos that apply mid'Oraisa. Why, then, should the Mishnah teach its Halachah with regard to a Ben Chalutzah, in which the testimony of the witnesses has no effects mid'Oraisa?

(a) The RAMBAN and RITVA answer that the Mishnah mentions Ben Chalutzah only tangentially to Ben Gerushah, since the two are commonly paired together. (See TOSFOS to Makos 13a, DH Gerushah.)

(b) The Acharonim (REBBI AKIVA EIGER, ARUCH LA'NER, EINAYIM LA'MISHPAT, PNEI YEHOSHUA) suggest a simple answer to this question. Even if the Ben Chalutzah is not Pasul mid'Oraisa, nevertheless, since the Rabanan instituted that a Ben Chalutzah cannot perform the Avodah in the Beis ha'Mikdash, the testimony of the witnesses affects the validity of the Kohen. Since someone is suffering as a result of their testimony, "Ka'asher Zamam" should be applied even mid'Oraisa, and the witnesses should receive Malkus even mid'Oraisa.

Moreover, there is a Lo Sa'aseh that prohibits witnesses from testifying falsely even when the testimony does not harm another person, according to the RAMBAN (Devarim 5:17). Accordingly, Malkus mid'Oraisa should be administered even when the witnesses testify that a Kohen is a Ben Chalutzah.

Why do the Ramban and Ritva not suggest this approach?

Perhaps the Ramban and Ritva are bothered by the wording of the Mishnah which states that Beis Din does not make the witnesses into Bnei Chalutzah in retribution for attempting to make the defendant a Ben Chalutzah. Even if Beis Din administers Malkus to a person who testifies that a Kohen is a Ben Chalutzah, it is clear that the verse, "va'Asisem Lo Ka'asher Zamam la'Asos" (Devarim 19:19), cannot refer to such testimony, since such testimony (that a Kohen is a Ben Chalutzah) would have been meaningless at the time that the Torah was given at Har Sinai.

Although this answer suffices for the Ritva, it does not suffice for the Ramban. The Ramban writes clearly that no Malkus (mid'Oraisa) is administered to Edim Zomemim who testified that a Kohen is a Ben Chalutzah. Why, though, should there be no Malkus, if the witnesses attempted to harm the Kohen through their testimony?

Some Acharonim suggest that the punishment of Malkus is administered only for giving false testimony for which the witnesses could have received a punishment of "Ka'asher Zamam" (i.e. the identical punishment which they tried to inflict) had the Torah not excluded that punishment (such as when they testify that someone is Chayav Galus or that he is a Ben Gerushah). It does not apply to other forms of false testimony. However, the Gemara in Bava Kama (74b) teaches that when witnesses testify that a certain person killed Reuven and then Reuven walks into court, the witnesses would be given Malkus for transgressing the prohibition of "Lo Sa'aneh" (if not for the problem of Lav she'Nitan l'Azharas Misas Beis Din").

Perhaps the Ramban's reasoning is that the Torah does not consider the attempt to make a Kohen into a Ben Chalutzah as an attempt to cause harm to a person. This is because a Ben Chalutzah may perform the Avodah, according to the Torah.

A similar concept is mentioned in Sukah (23b). The Gemara there teaches that the Torah requires that a Sukah be fit to be used even on Shabbos in order to be a valid Sukah on Chol ha'Mo'ed. The Gemara says that, according to Rebbi Meir (whose opinion is the Halachah), if entering the Sukah on Shabbos involves only an Isur d'Rabanan, the Sukah still may be used during Chol ha'Mo'ed, since the Torah considers it a valid Sukah even though the Rabanan prohibit it from being used. Similarly, the Torah considers a Ben Chalutzah to be fit to perform the Avodah, even though the Rabanan do not permit him to perform the Avodah. (See ARUCH LA'NER, and see TOSFOS to Kesuvos 29a, DH Elu.)

With regard to the prohibition of "Lo Sa'aneh" (Shemos 20:13), the Gemara (2b) teaches that it is a "Lav she'Ein Bo Ma'aseh." Beis Din punishes the Edim Zomemim with Malkus only because the Torah specifically assigns Malkus to the sin of false testimony in the verse of "v'Hitzdiku" (Devarim 25:1). However, that verse does not discuss "Edus Shav" (testimony which does not harm a person), but rather "Edus Sheker" (testimony which does harm a person). Therefore, there is no source to assign a punishment of Malkus to the sin of giving false testimony which does not cause harm.

QUESTIONS: The Gemara (2a) quotes Bar Pada who suggests a Kal va'Chomer to explain why Edim Zomemim who testified falsely that a Kohen is a Ben Gerushah are not punished by being made into Bnei Gerushah. The Gemara later (2b) quotes Rebbi Yochanan who suggests a similar Kal va'Chomer to explain why Edim Zomemim who testify that a person is Chayav Galus are not punished by being sent to Galus.

Bar Pada's Kal va'Chomer is that since a Kohen -- who lives with a Gerushah and makes the child born from that union a Chalal -- does not become a Chalal himself, certainly a witness who merely plotted to make a Kohen into a Chalal but did not succeed should not be made into a Chalal. Ravina rejects this Kal va'Chomer, saying that such logic would refute the entire law of Edim Zomemim, since Edim Zomemim who succeeded in killing their victim are not punished with death, while Edim Zomemim who plotted to kill but did not succeed are punished with death.

Rebbi Yochanan makes a similar Kal va'Chomer with regard to Galus. If someone who actually kills b'Mezid (intentionally) is not sent to Galus, then those who only attempted to harm someone b'Mezid (i.e. Edim Zomemim who testified that someone should be sent to Galus) certainly are not sent to Galus. The Gemara refutes this Kal va'Chomer, saying that perhaps there is more reason to send Edim Zomemim to Galus for attempting to harm someone, because Galus is a Kaparah (atonement), and since they did not actually cause harm they are entitled to a Kaparah.

Why does the Gemara refute each Kal va'Chomer with a different argument? It seems that the two arguments apply in both cases and refute both Kal va'Chomers!

(a) The first Kal va'Chomer may be refuted with the same logic that refutes the second Kal va'Chomer, by saying that a person who merely attempted to make a Kohen into a Ben Gerushah should be made into a Ben Gerushah as a punishment so that he will attain Kaparah.

(b) The second Kal va'Chomer may be refuted with the same logic that refutes the first Kal va'Chomer, as the ARUCH LA'NER asks, by showing that it contradicts the entire basis of the concept of Edim Zomemim; a person who merely attempted to kill is punished more than a person who succeeded in killing!

(a) The refutation to the second Kal va'Chomer cannot be used to refute the first Kal va'Chomer for the following reason. Making the witness a Ben Gerushah would be a punishment and not a Kaparah. It is only Galus which the Gemara considers a Kaparah, because its main effect is not physical or financial suffering as is the case with other punishments. Rather, Galus (and the death of the Kohen Gadol) protects the unintentional murderer from the Go'el ha'Dam.

(According to this explanation, the reason why the Torah does not punish Edim Zomemim who succeeded in their plot is not that the Torah does not want them to have a Kaparah, as the PNEI YEHOSHUA writes. Rather, killing the Edim Zomemim would be a punishment and not a Kaparah.)

(b) The basic concept of Edim Zomemim does not refute the second Kal va'Chomer. The law of Edim Zomemim proves only that there are times when the Torah seeks to be more lenient with (and acquit) a person who accomplishes a sinful act, even though it punishes a person who merely plots a sinful act and does not accomplish it. In the case of a person who kills b'Mezid, the Torah does not want to be lenient with the killer, as is evident from the fact that he is punished with death when he receives Hasra'ah. Accordingly, it is not logical to suggest that if he kills without Hasra'ah, the Torah will be more lenient with him because his act was done b'Mezid (since the Torah does punish an act done b'Mezid in the case of a murderer). (M. KORNFELD)

QUESTION: The Gemara says that Edim Zomemim do not pay Kofer, because Kofer is a Kaparah and Edim Zomemim are not "Bnei Kaparah."

Presumably, the same logic explains why Edim Zomemim have no obligation to bring a Korban when they testified that a person transgressed the type of sin that obligates him to bring a Korban.

Why, though, are the Edim Zomemim not "Bnei Kaparah"? If they attempted to obligate a person to do an act that attains Kaparah, then the punishment for their false testimony should be that they must attain Kaparah for their false testimony in the same way (by paying Kofer, or by bringing a Korban when they testified falsely that a person transgressed the type of sin that obligates him to bring a Korban). (RISHONIM)

(a) The RITVA and TOSFOS SHANTZ suggest that a person is never given an opportunity to do an act to attain Kaparah for a sin he committed intentionally. Since the Edim Zomemim sinned intentionally, they cannot be given an opportunity to perform an act in order to attain Kaparah.

This explanation is problematic, however, in light of the Halachah of the Korban Asham Shifchah Charufah (Vayikra 19:20-22; Kerisus 9a; see Background to Kidushin 23:11b). A person who intentionally lives with a Shifchah Charufah is obligated to bring a Korban Asham. According to the Ritva, when witnesses testify that a person is obligated to bring a Korban for living with a Shifchah Charufah, they should be obligated to bring a Korban. Since that Korban is brought to atone for a sin that was committed intentionally, it should also atone for their sin -- which they committed intentionally -- of giving false testimony.

TOSFOS, cited by the RITVA, questions further why the Gemara earlier suggests that Edim Zomemim would have been Chayav Galus if not for the verse that teaches otherwise. Galus is also a Kaparah, as the Gemara says, and Edim Zomemim cannot be given an act of Kaparah as their punishment!

Tosfos answers that Galus itself is not a Kaparah. Rather, it is a punishment; the Torah allows the Go'el ha'Dam to kill the unintentional murderer if he steps outside of the Ir Miklat. The Kaparah to which the Gemara refers is the fact that when the Kohen Gadol dies, the unintentional murderer may leave the Ir Miklat and the Go'el ha'Dam may not kill him (as the Gemara says explicitly on 11b; however see Tosfos there).

(b) The RAMBAN explains that Beis Din does not obligate a person by force to pay money to attain Kaparah. The Gemara in Bava Kama (40a) concludes that Beis Din does not force a person to pay his obligations of Kofer (as the Ritva here mentions). Paying money for Kaparah is a voluntary option for one who wants to exempt himself from Misah b'Yedei Shamayim that he would otherwise suffer as punishment for the fact that his ox killed a person.

Misah b'Yedei Shamayim is not brought about by witnesses who testify that the defendant's ox killed a person and that the defendant is obligated to pay a Kofer. If his ox did kill a person, then whether or not the owner of the ox is brought to court he will be punished with Misah b'Yedei Shamayim. If the ox did not kill, then whether or not the owner is brought to court he will not be punished with Misah b'Yedei Shamayim. Thus, a punishment administered by Shamayim is not dependant upon the testimony of witnesses in any way.

This is what the Gemara means when it says that the Edim Zomemim are not "Bnei Kaparah." It means that the witnesses do not need a Kaparah since they did not create any obligation upon the defendant. They did not create an obligation of Misah b'Yedei Shamayim, because his ox did not kill in reality (and if it did, the witnesses did not create the obligation of Misah b'Yedei Shamayim, which would take effect regardless of their testimony). They also did not create an obligation to pay money, because Kofer is the responsibility of the defendant himself if he wants to attain atonement; it is not an obligation enforced by the Beis Din.

According to the Ramban, the difference between Galus and Kofer is clear. Even if going to Galus is a Kaparah, it will be enforced by Beis Din through the permission that Beis Din gives to the Go'el ha'Dam to kill the defendant if he does not go to Galus.

This also explains why Edim Zomemim will never be obligated to bring a Korban as their punishment for testifying falsely. When they testify that a person is obligated to bring a Korban, their testimony does not create an obligation on the person. Rather, it is the person's own duty to bring a Korban if he wants to attain Kaparah.

This also explains why the Mishnah does not list Kofer as one of the exceptions to the rule of Edim Zomemim, while the Beraisa does. The Mishnah lists only cases of Edim Zomemim who are not punished with "Ka'asher Zamam" (i.e. the punishment that they attempted to inflict) but who are punished with Malkus. In a case in which the witnesses testify falsely that a person is obligated to bring a Korban or to pay a Kofer, they have not actually caused any loss to the defendant through their testimony, and therefore they will not be punished, even with Malkus. (Although it is true that the Torah prohibits one from giving false testimony even when no one is harmed as a result of the testimony, the witnesses will not receive Malkus through such testimony (as mentioned in Insight #2 above).)

QUESTION: The Beraisa adds two more cases of Edim Zomemim who do not receive the same punishment that they attempted to inflict. When the witnesses testify falsely that a person is obligated to pay a Kofer, they are not punished with "Ka'asher Zamam" by having to pay a Kofer themselves. When witnesses testify falsely that a person was sold as an Eved Ivri, they are not punished by being sold as slaves.

Why does the Mishnah not list these two cases? The reason why the Mishnah does not list the case of Kofer was explained earlier (see previous Insight). According to the RAMBAN, Kofer is a voluntary option which Beis Din does not enforce a person to pay. According to TOSFOS, the Mishnah lists only Halachos which are derived from a verse. The Mishnah dos not list the case of Kofer because it is an obvious Halachah learned through logic and it needs no source in a verse. Why, though, does the Mishnah not list the Halachah of Edim Zomemim who testify that a person was sold as an Eved Ivri?

According to Rav Hamnuna, the answer to this question is that this Halachah is also derived through logic and needs no verse, and therefore the Mishnah does not need to list the case of Eved Ivri. Moreover, the Halachah that Edim Zomemim are not sold as slaves is not absolute because, according to Rav Hamnuna, the witnesses sometimes are sold as slaves (such as in a case in which the defendant has no money, and the witnesses also have no money). However, according to Rava, the law that Edim Zomemim cannot be sold as slaves is derived from a verse. Why, according to Rava, does the Mishnah not include this Halachah in its list of cases of Edim Zomemim who are not punished with the same punishment that they attempted to inflict? (RITVA)

(a) The RITVA suggests that perhaps the only reason why the Mishnah lists these two cases (of witnesses who testify falsely that a Kohen is a Ben Gerushah or Ben Chalutzah, and witnesses who testify falsely that a person is Chayav Galus) is that the Mishnah later, in the second Perek, discusses Galus, and in the third Perek discusses the Halachah of a Ben Gerushah. This answer, however, is somewhat forced.

(b) The GEVURAS ARI suggests that even according to Rava, when the witnesses have money and the defendant does not have money, the witnesses will be obligated to pay and will not receive Malkus. They may claim that "had you had money, you would have paid, and therefore we also may pay." The witnesses receive Malkus only when they have no money and the defendant has no money. Since the witnesses are supposed to be punished with "Ka'asher Zamam" but they cannot be sold as slaves (as the verse teaches), they therefore are punished with Malkus. However, the witnesses can exempt themselves from Malkus by saying that they want to wait until they get money and then they will pay. Consequently, they will never receive Malkus since they can always delay it by demanding more time to get money. This is why the Mishnah does not list this case among the other cases in which the Edim Zomemim receive Malkus instead of the punishment that they attempted to inflict.

(c) The RAMBAM describes the case of witnesses who testify falsely that the defendant is an Eved Ivri differently from the way the Gemara explains the case. The Gemara explains that the witnesses testify that the defendant stole money which he cannot repay and therefore he should be sold as an Eved Ivri. The Rambam explains that the witnesses testify that the defendant was sold as an Eved Ivri.

Apparently, the Rambam understands that the Beraisa includes both cases when it says that Edim Zomemim are not sold as slaves (because of the verse quoted by Rava).

According to the Rambam, it is clear why the Mishnah does not list Edim Zomemim who testify falsely about a person's status as an Eved Ivri. The Mishnah does not mention a number of other cases of witnesses who testify falsely about a person's status, such as when witnesses testify that a person is a Mamzer or an Amoni, even though the Beraisa (cited by Tosfos on 2a) mentions those cases and says that the Edim Zomemim receive Malkus. The reason why the Mishnah does not mention the case of Eved Ivri, or any of the other cases of testimony about a person's status, is that these cases are included in the case of Ben Gerushah. That case includes all cases in which witnesses testify falsely that a person's status is blemished. Since the Mishnah includes the Halachah of the Rambam's case of Eved Ivri (i.e. false testimony about a person's status), it does not deem it necessary to list the case of Eved Ivri separately merely in order to teach the other case of Eved Ivri (when witnesses testify falsely that a person stole money and therefore should be sold as an Eved Ivri).