Makos 5b . 7/29/14

Makos 5b

1. “Kasher Zamam vlo Kasher Asah”

We mentioned the question of the Ohr Hachaim Hakadosh (See here in English Hebrew) that maybe the fact that the Torah mentions “Kasher Zamam” is coming to teach you that even if they did not carry out the verdict then you punish the eidim zomemin, how much more so more so if they carried it out.


The Ohr Hachaim Hakodosh answers the fact that the Torah mentions a new word “Zamam” we learn from there that it is only if they did not carry out the verdict (Some mentioned that the question is definitely better then the answer) Attached please find the PDF.


2. In continuation to the question of the Rambam’s opinion that Gemara only uses this rule of “Kasher Zamam”  regarding death and it does not pertain to Malkus or money. We brought the famous answer of R’ Chaim Soloveitchik of Brisk (English  Hebrew) that Malkus (as opposed to death) can only be done in front of Beis Din, if it is not done in front of Beis Din it is considered a lynching. Hence, once it was revealed  that these witnesses were liars, retroactively the alleged accused never received “Malkus” what he got was an unwarranted beating, therefore there was never a “Kasher Asah”. Attached please find the PDF from Reb Chaim’s  famous book on the Ramabam.


3.An interesting explanation of the Rebbe.


The Alter Rebbe writes in Tanya (Igh”k 25) that Chazal say that being angry when someone harms you is tantamount to idol worship.


Why? asks the A”R


He explains that the individual that is being harmed, physically or monetarily,  is getting what he deserves as it us ordained by G-D. He has no way out. His anger shows his lack of faith in the idea that all is preordained.


Now surely the one that causes the harm will be punished accordingly. His action is NOT preordained because humans were granted free choice. He willingly chose to harm his victim. If he would have contained himself and not harm the  (deserving) victim  G-D would send someone else.


In 1965 the Rebbe posed a simple question. Based on the above, why then does a thief need to pay back to his victim? The question is not that he should be allowed to keep what he stole of course.


The question is that since it was ordained that the victim should lose the amount stolen, it would make sense that the robber should be forced to give back the loot to charity!!! Returning it to the victim runs contrary, it seems, to the master plan of a thief robbing him of his money as it was preordained.


The Rebbe’s answer is quite simple – the fact that the thief was caught  and is in possession of the stolen property is proof that the victim was not destined to lose his money permanently! It was only to be taken away from him (and him to suffer the anguish) for a predestined period of time. Thus, when the thief is caught the money needs to be returned to the victim as was preordained.


See this explanation at length here.


4. Regarding the Story of R’ Yehuda Ben Tabai. Two witnesses testified about a murder they witnessed. The Beis Din reached a verdict but did not yet carry it out.


Another set came along and were mazim only one of the first set. R’ Yehudah ruled that the single witness should be put to death despite the fact that he was only one of the two Eidim Zomemin.


We mentioned that R’ Yehuda’s statement seems to indicates that he too was aware that the witness was not liable for execution under the rules of the law, but that he executed him anyway in order to counter the heretical views of the Tzdukim that say he only gets punished if the sentence is actually carried out on the victim. This seemingly weird Halocho is based upon the Gemore in Sanhedrin concerning the power of a Beis Din.


We asked, if he was aware of all this why was he so upset when Shimon Ben Shatach told him he made a mistake, since he was fully aware of what he was doing?


A Rosh Yeshiva of the previous generation, Reb Yechzkel Abramsky author of ‘Chazon Yechezkael’ answers this question.


[Parenthetically, Reb Yechezkel granddaughter Jenny directed the audio and music division at the …. (anti-Semitic) BBC in London]


In addition to their opinion on “Kasher Zamam and also Kasher Asah” the Tzdukim are also of the opinion that even if only one of the Eidim Zomomin are Muzam he still gets punished (since need the Hazomo of both witnesses is a Torah Shel Bal Peh ruling).


Therefore, by putting this single witness to death he refuted their opinion (about punishing the witness even before the verdict was carried out) but on the other hand he confirmed their opinion on the other issue! (of designating a single witness as an eid ziomem). That is the issue Shimon Be Shotach had with Reb Yehuda’s ruling and subsequent regret by the latter.


5. The Rishonim ask how such a terrible error could have befallen on R’ Yehudah Ben Tabbai when the Gemara says that G-D does not allow an error to occur even to the animals of the righteous!


(We mentioned the story of Reb Sender Menkin the Parisian who did not want to take the small donation, and bringing proof from the donkey of Reb Pinchas Ben Yair).


Ramban and Ritva answer that though the witness had not deserved to die for giving false testimony, he had been guilty of other capital crimes (for which he had not been prosecuted). Thus, his execution was not in fact a miscarriage of justice.


Tosfos answers that the special Divine Providence bestowed upon the righteous to protect them from inadvertent violations of the law is granted only in regard to food consumption, as in the cases cited by the Gemara.

Ohr Hachaim Kasher Zamam

Reb Chaim Eidim Zomemin

Makos 5b Shiur 7/22/14‏

Makos 5b

1. We mentioned the shitah of Rabbi Yehudah, that if a pair  [A] witnesses testify and new witnesses  [B]  come along are are mazim the [A} and then another set [C] comes along and testifies exactly as the first set [A], and they too are contradicted by [B], neither [A] or [C] are considered Eidim Zomimin. This is because we assume that this [B] is a set of plotters who have conspired to discredit anyone who testifies against the accused. 

 The questions was asked, at the end of the day the Torah says that if a set [B] of witnesses  comes and says “you were with us at the same time as you say the eidus about the other person” they [A] are considered Eidim Zomemin, so who cares how many more sets [C-Z] of witnesses contradict them? They should all be considered Eidim Zomemin? 

 We answered that what Rabbi Yehdah means to say is that once there are many sets [C, D ..] coming and saying the same thing, and the same two people [B] are refuting all of them, then this is not going to be a din in Eidus, but rather a separate din that when Beis Din sees something fishy they cancel the entire case.

 2. The Gemara mentions the famous rule regarding Eidim Zomemin “Ka’asher Zomom, Vlo Kasher Asah” if the verdict was already carried out on the defendant the Edim Zomemin do not get punished. 

 Surprisingly the Rambam seems to learn that the Gemara only uses this rule regarding death and does not pertain to Malkus or money. The obvious question is, nowhere in the Gemara does it mention this distinction, thus where did the Rambam get  this differentiation. The question is so strong the the Raavad on this Halacha proclaims that the Rambam made a big mistake. 

The Kesef Mishnah (By Reb Yosef Karo EnglishHebrew author of Shulchan Aruch) first tries to say that regarding money you can always return the money therefore there is no “Kasher Asah”, but this would only answer regarding money and not regarding Malkus?

He therefore gives two answers:

1.  Since judgment is ultimately in God’s hands, had the executed party not been guilty, God would not have allowed him to be executed by a proper Beis Din. Hence the lying witnesses need not be punished by humans. They will be dealt with by God himself.  

2. That the punishments inflicted by the courts are not goals in their own right, but means to bring a person to atonement. The sin of causing a human being to die exceptionally severe. It is not fitting to give these lying witnesses, who caused a person to be executed, the opportunity to achieve such atonement.

Attached please find the Rambam with the Kesef Mishnah.

Makos 5a. Shiur 7/15/14

Makos 5a.

1. We continued discussing the point which we spoke about last week. The Gemara says that if two Eidim claim that they witnessed a person, in Los Angles for example, doing something and another two Eidim come and say that these witnesses were with them in Tokyo, we calculate if it was possible to travel the distance and be in both places on the same day. If it is not possible, the first pair is guilty of being Eidim Zomemin.

We mentioned that the Rishonim ask: There is a phenomenal story about Shmuel’s father who was out of town and he traveled back to his wife (Shmuel’s mother) using the power of a “Shem“.

Thus we clearly see that one can claim that he traveled a long distance in a short span of time- even in Halocho!!!

Read the details of this story here:

Note that the fortuneteller who tempted Samuel’s father was a gilgul of Potifar’s wife- the woman who tempted Yosef in Mitzrayim!

Attached please see attachment PDF of the Shulchan Oruch.

2. The Mishnah states the following “Witnesses do not become Zomeminuntil they discredit themselves“.

When we learned the Gemore we translated it the way Rash”i explains it, that in order for them to become Eidim Zomemin the second pair of Eidim have contradict something about the first pair of Eidim’s credibility, for example they were out of town. If they only contradict the facts of the story’s  they do not become EidimZomimn

At the Shiur we mentioned the fascinating point which is mentioned in the Rabeinu Chananel in the name of Reb Hai Gaon (His bio in English or Hebrew) that what the Mishnah means to say by “Witnesses do not become Zomemin, until they discredit themselves” is that they can only become Zomemin if they admit they they were lying or remain silent and don’t contradict the second pair.


That is a huge Chiddush and something which is not mentioned in most Rishonim! We mentioned in the Shiur that the Chasam Sofer uses this Peshat toanswers many questions of Tosfos. Attached please find the PDF.  Attached also find the original source from R’ Hai Gaon’s classic book.

3. We mentioned the Chasam Sofer regarding the reasoning of the Ramaban why you believe the second pair of Eidim.  Basically- when testifying against a pair of witnesses by saying that they were elsewhere at the time of the alleged act of the defendant is like saying that the first pair are mecha’lelei Shabbos. Thus in turn they become defendents themselves and therefore cannot refute the second pair!

4. The story with the murder, snake, golus and the shomer.

Story with Shmuel’s Father

Chasam Sofer Eidim Zomemin

Rav Hai Gaon

Makos 4b. (7/1/14)

Makos 4b.

  1. We spoke about Reb Elchonon’s answer to a famous question. The definition in Sha”s of a ‘kenas’ (as opposed to – ‘momon’ regular payment of a guilty party) is when one is obligated to pay more than the actual damage incurred. Such as “kay’fel’ – a punishment to pay double the amount of the theft.

So the question is how can one say that Eidim Zomemin is not a kenas? They pay more than the intended damage (the Halocho is that they pay only when the falsely accused defendant didn’t pay)“Ka’sher zomam ve’lo ka’sher oso”.

Reb Elchonon explains that what creates the Eidim Zomemin’s obligation to pay is the Beis Din’s verdict that they are obligated to pay. Therefore, since it is only as a result of a Beis Din ruling/verdict, the required payment by the Eidim Zomemin has the category of money and not kenas.

Furthermore, even if the Eidim wanted to cause the defendant to pay a kenas, for example “Motize Shem Ra” nevertheless the money that the Eidim Zomemin are obligated to pay, becuase it is going through Beis Din,  has the category of money and not Kenas.

We heard some valid arguments to the contrary. Nu, that’s the idea of the shiur.

2-    לאו שאין בו מעשה.

We spoke about what the definition of ‘doing nothing’ is. Gornisht, Gor gornisht (a groiser Gornisht….HV)

3- We mentioned the Aruch – the first Hebrew encyclopedia/dictionary written by Reb Noson of Rome, Italy, a contemporary of Rashi. Actually this sefer is much more than just definitions of Aramaic words in Chaza”l. The author incorporates many Halachik opinions in various topics. Many Rishonim, including Rashi and Tosfos quote him and discuss his rulings.

Interestingly the Aruch was one of the first Jewish books to be printed. See here and below for the Venice edition of 1531.

Reb Noson had an interesting life. Read more:  English, or Hebrew.

4-    The prohibition of Kilaim is the planting of a grape seed with a wheat seed. Rabbi Akiva adds that also when one is ‘Makayem’ Kilaim one is chayev Malkus.

What is the definition of  the word ‘Makayem’ ?

The Aruch’s definition of being “Mikyem” Kilaim is that he did nothing at all, he didn’t plant the seeds, the wind blew them in and he just let remain there.

Tosfos does not like this interpretation because according to Rabbi Akiva’s opinion that one needs to perform an action to receive Malkus, if one really did nothing (such letting it remain in the ground) how can one receive Malkus for doing nothing

Therefore Tosfos has his own definition of the word ‘Makayem’  KilaimIt means that he built a fence around the Kilaim. Tosfos considers that an action in the prohibition of Kilaim.

We mentioned that Tosfos’s answer is hard to understand because one still did not do an action with the actual Kilaim which would warrant him to receive Maulks!

5-             For Gimmel Tamuz we semi-joked about the definition of a “meshichist”…..that it is an easily moveable and adjustable definition…….

6-             We mentioned the Ohr Hatorha about the definitions of death according to Kabala and Chassidus. The Rebbe Rashab also expounds on this topic. See attached.

At issue is an age old question of the Zohar and others. How can the Torah state that the cause of death in the human race is a result of Adam’s eating from the Tree of Life when the Torah (which preceded the creation of the world) states many laws of impurity which comes as a result of touching a dead body. It seems that death was programmed in the human race even prior to Adam’s failure in Gan Eiden.

The Zohar (as explained by the Rebbe the Tzemach Tzedek) responds that true, death was part of the original plan. But that ‘death’ would be a mere ‘transfer’ from one world to another. (Story of Reb Leivik).

In these ‘lighter forms of death’ the body either:

a-     ascends with the soul (Eliyohu and Chanoch) or,

b-     the body ceases to function and is actually buried. But the soul “transfers to another world just like one changes from weekday clothes to Shabbos clothes”.

In either case, had not Adam sinned,  one would not feel what is called ‘the pain of death’. This was the original idea of death! Painless.

The sin of Adam caused humans to go thru ‘ta’am miso’. A more ‘gross’ form of death.

Has any human experienced this (b- body ceases to function but soul is transferred) ‘lighter form of death’?

The Tzemach Tzedek says that that is the meaning of ‘Ya’akov ovinu lo mes’.


Ohr Hatorah

Atres Chukas