The first Tosfos in MAKOS asks: "Since the witnesses in the Mishnah do not receive the punishment that they attempted to deal out to the defendant, why is this then not a case of 'Eidus she'I Atah Yachol Lehazimah'?"
After some discussion Tosfos brings two final answers.
The first answer was that Malkus of Eidai Grusha was a fulfillment of "Kasher Zomam". The second answer is it is not at all a fulfillment of "Kasher Zomam" at all. According to the second answer where do the malkus come from? Is this what the Tosfos on daf 4: 'VE'RABBANAN HAI "LO SA'ANEH" is addressing when it explains that after the Gilui of of "Vhaya Im Ben Hakos" we know that the Lav of Lo Saneh actually does give the malkus for Eidi Grusha Zomemim?
Thank you!
Yosef Moshe
Yosef Moshe, Chicago USA
1. The Chidushei ha'Ritva (Makos 2a, DH Ein Omrim) clarifies the matter. The Ritva cites Tosfos' answer that when the Yisrael gives false testimony about the Ben Gerushah, he receives Malkus. Ritva writes that this punishment of Malkus is derived by the Gemara (2b) from the verse of "v'Hitzdiku Es ha'Tzadik." Ritva then cites the question of Tosfos in Sanhedrin (41a): why does the witnesses' punishment of Malkus not constitute fulfillment of "Ka'asher Zamam"? The Ritva cites also the answer of Tosfos that there in Sanhedrin (41a) the witnesses are attempting to give the Na'arah two punishments: (a) Misah, and (b) Malkus. The Ritva writes that Tosfos answers that the punishment of Malkus that the witnesses receive has no connection with the capital punishment they were trying to inflict, so Ka'asher Zamam is not fulfilled for the capital punishment. However, the Malkus that the Edim do receive is derived from "v'Hitzdiku" as the Ritva mentioned, and thus it is not necessary to say that Tosfos derives this from "Lo Sa'aneh," as you suggested, because it is derived from "v'Hitzdiku."
Kol Tuv,
Dovid Bloom