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 had 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 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 similar 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 indicate 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
See the Rambam discussing the Sefer edited by Ben Asher.
“Asvia” is probably Osveya, located on the lake of the same name. (The expression quoted from the pinkas is באסוויע מתא דיתבא על ימא זוטא המכונה אזירא דמתקריא סוויע.) It has another claim to fame – it was the birthplace of R. Aharon Strasheler.
Here’s Lake Seliger. A look at it in Google Maps shows that R. Plotkin’s town of Ostashkov is located on it.