1) DIVIDING THE PAYMENT AMONG THE "EDIM ZOMEMIM"

QUESTION: The Gemara quotes the Mishnah later (5a) which states that a monetary obligation is divided among the Edim Zomemim, but an obligation of Malkus is not divided among them. The word used by the Mishnah there is "Meshalshin." RASHI offers two explanations for this word. It means either that Beis Din serves as a middleman ("Shelish") to ensure that the three or four witnesses pay equally, or it means that they divide the payment among three ("Shalosh") when there are three witnesses, and the same applies when there are four witnesses -- the payment is divided among the four of them. (See RASHASH and TOSFOS YOM TOV for other explanations of "Meshalshin".)

Rashi, in both explanations, says that this Halachah applies whether there are three or four witnesses.

Why does Rashi not say that the Halachah -- that the payment is divided among the witnesses -- applies to the more common case of *two* witnesses? (This indeed is the way RABEINU CHANANEL explains the Mishnah there.)

ANSWER: Rashi's source seems to be the wording of the Mishnah itself. The Mishnah there concludes that with regard to Malkus, when the Edim are found to be Zomemim, "every one of them receives forty lashes." If the Mishnah refers to a case of two witnesses, it should say "both of them" instead of "every one of them." This implies that the Mishnah is teaching that the witnesses split the monetary obligation, but not the Malkus, even when there are more than two witnesses.

Why, though, does the Mishnah discuss a case in which there are more than two witnesses?

The answer to this question might depend on the different explanations in Rashi for the word "Meshalshin."

(a) According to Rashi's first explanation, the word "Shelish" is related to the word "*Hishlish* Es* Shtaro" (Bava Basra 168a), which means to "entrust to a third party." In the case of the Mishnah (5a), it means that the witnesses will entrust to the court the money that they are paying, and the court will deliver it to the defendant.

The GEVURAS ARI (5a) asks, why do the witnesses need to entrust the money to the court in the first place?

The answer might be that even though the Gemara concludes that a single witness must pay his portion of the monetary obligation even when the accompanying witness is not paying, nevertheless -- when both witnesses are paying -- it is better for them to give the entire sum to the defendant at the same time. When there are two witnesses, this requires that one of the witnesses give his share of the payment to the second witness, and then the second witness hands it over, together with his own share, to the defendant. However, when there are three or more witnesses, each witness will refuse to give his portion to another witness, claiming, "Why should I give it to you? Perhaps the third witness will refuse to give you his share!" In such a case, the solution is that each witness must give his portion to the Beis Din. All of the witnesses trust the Beis Din, and the Beis Din ensures that all of the witnesses pay their share of the obligation. Accordingly, it is necessary to be "Mashlish" the money only when there are three or more witnesses. When there are only two witnesses, one will pay his share to the other, who will then pay the entire amount to the defendant. The Mishnah is teaching that even when there are three witnesses, the best method of payment is for each witness to give his portion to Beis Din, who then will ensure that the money is given to the defendant.

(b) The GEVURAS ARI explains why the Mishnah teaches its law with regard to three witnesses, according to Rashi's second explanation for "Meshalshin." The Mishnah later (5b) teaches that even though two witnesses are enough to incriminate a person, nevertheless the third and fourth witnesses in a group of witnesses are also punished for presenting false testimony. One might have thought that even though the payment for Edim Zomemim is divided among the witnesses, it would not be appropriate to *lessen* the obligation of the original two witnesses just because they brought with them other witnesses who also testified falsely. Therefore, when there are more than two witnesses, one might have thought that the third and fourth witnesses do not have to pay (or, alternatively, that each additional witness must pay half of the total obligation). For this reason, it is necessary for the Mishnah to teach that the payment is divided equally even among three or four witnesses.

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2) A CONDITION THAT CONTRAVENES A TORAH LAW

QUESTIONS: Shmuel says that if a person lends money on condition that Shevi'is should not be Meshamet (remit) the loan, his condition is not binding, because his condition contradicts a Torah law. The Gemara points out that Shmuel here contradicts what he says with regard to Ona'ah (overcharging). Shmuel rules that if a person sells an item to a buyer on condition that the buyer will have no claim of Ona'ah against him, the condition is binding and the buyer has no claim of Ona'ah. This implies that a condition that a person makes which contravenes a law in the Torah is valid nevertheless. The Gemara answers by quoting Rav Anan's qualification of Shmuel's second statement. Rav Anan explains that the condition is valid only when the seller says that he is selling the item "on condition that you have no claim of Ona'ah against me for this sale." If, however, the seller says that he is selling the item "on condition that there is no Ona'ah on this sale" ("Al Menas she'Ein Bo Ona'ah"), then the condition is not binding and the buyer may claim Ona'ah if he is overcharged. The same applies to Shmuel's statement regarding Shevi'is. When one lends money on condition that Shevi'is will not be Meshamet the loan ("Al Menas she'Lo Teshamteni Shevi'is"), the condition is not valid, because the subject of his condition was Shevi'is; when, however, he says that he is lending money "on condition that *you* will not be Meshamet the loan during Shevi'is" ("Al Menas she'Lo Teshamteni b'Shevi'is"), then the subject of the condition is the borrower, and not the Shemitah year, and the condition is valid.

Why is the condition not binding in the case of Ona'ah when the seller says, "Al Menas she'Ein Bo Ona'ah"? RASHI explains that "she'Ein Bo Ona'ah" does not mean that "I want you to forgo any claim to Ona'ah." Rather, it means that "I am selling you this item on condition that I am not overcharging you." Accordingly, if the seller *does* overcharge the buyer for the item, the sale is not valid because the condition that he would not overcharge was not fulfilled (and the sale is thus a "Mekach Ta'us").

There are a number of difficulties with this explanation of Rashi.

(a) The case of Shevi'is, in which Shmuel rules that the condition is not valid, is a case in which the lender says, "I am lending you money on condition that Shevi'is will not be Meshamet the loan." As Rashi explains, the condition is not valid because the lender's intention is that the Torah's law of Shemitah not apply (in contrast to when he merely insists that the borrower agree to return the money). Although the borrower may agree to the condition of the lender, the Torah is not bound by the lender's condition, and thus Shevi'is takes effect. Therefore, when a person says, "I am lending money to you on condition that the Shemitah of the Torah will not take effect," it is considered as though he says, "I am lending to you on condition that something impossible will occur," and in such a case the law is that the condition is disregarded and the act (the loan) is upheld (Bava Metzia 94a).

The reason why the condition in the case of Shevi'is is not valid differs from the reason for why the condition in the case of Ona'ah is not valid, according to Rashi. In the case of Shevi'is, the condition is not binding because it is an invalid condition that cannot take effect, and thus it is disregarded. In the case of Ona'ah, the condition *is* binding (that is, the sale takes effect if there is no overcharge), and thus if the buyer finds that he was overcharged, he may claim compensation because of the condition that was made (that is, the sale does *not* take effect if he was overcharged). The reason why the seller is not protected by his condition (such that the sale should be valid even if there is an overcharge) is that his condition was meant to protect the *buyer* and not the seller.

Why does Rashi explain that the case of "Al Menas she'Ein Bo Ona'ah" is a completely different case from the case of Shevi'is? Rashi should explain that "Al Menas she'Ein Bo Ona'ah" is *exactly* like the condition in the case of Shevi'is: that "Al Menas she'Ein Bo Ona'ah" means "on condition that the Torah will not apply the laws of Ona'ah" to an overcharged sell and, since the seller cannot tell the Torah what to do, he is stating an impossibility and the condition is not valid. Indeed, this is the way TOSFOS (DH Al) and most of the Rishonim here explain the Gemara.

(b) According to Rashi, what new idea does Rav Anan intend to teach with regard to Shmuel's ruling? Rav Anan addresses only the law of Ona'ah and not the law of Shevi'is. He says that Shmuel agrees that the sale is not valid when the seller overcharges in a case in which the seller stipulates that he sells the item "on condition that I am not overcharging you." It is obvious that the sale will not be valid if the seller overcharges in such a case, because that was his stipulation: the sale should not be valid if he overcharges the buyer. What does Rav Anan teach by clarifying this obvious point? (RITVA)

(c) In the case of Shevi'is, when the lender stipulates that he does not want the laws of Shevi'is to take effect on the loan, the condition is not valid because he has no control over the application of the Torah's laws, as mentioned above. According to Rashi, this reasoning is entirely unrelated to the reasoning of Rav Anan, who states that in the case of Ona'ah the sale is not valid when the seller says "Al Menas she'Ein Bo Ona'ah" ("on condition that I did not overcharge you"). Why, then, does the Gemara cite Rav Anan's statement in the first place? The Gemara should say simply that the condition of "Al Menas she'Lo Teshamteni Shevi'is" is not a valid condition! Introducing that statement with Rav Anan's ruling adds nothing to the Gemara's point. (TOSFOS and RISHONIM)

ANSWERS:

(a) Rashi finds it necessary to explain the case of "she'Ein Bo Ona'ah" differently from the case of "she'Lo Teshamteni Shevi'is" for the following reason. When the buyer acknowledges that he is being overcharged and agrees to the sale despite the overcharge, the law of Ona'ah does not apply to the sale in the first place. Ona'ah means that a seller is not permitted to cheat a buyer by overcharging him when he is not prepared to overpay. When the buyer is prepared to pay what he knows is an exorbitant price, the Torah does not apply the law of Ona'ah to the sale.

This is *not* the case with regard to Shevi'is. When the borrower agrees that he does not want Shevi'is to be Meshamet the loan, his consent cannot change the Halachic status of the loan; Shevi'is will still take effect. However, the borrower nevertheless will be required to repay the loan in order to keep his word (but not because Shevi'is was not Meshamet the loan); he made a promise to return the money, and he must keep his promise.

For this reason, Rashi does not explain the case of "she'Ein Bo Ona'ah" in the same way that he explains the case of "she'Lo Teshamteni Shevi'is." Rashi maintains that when a person sells an object on condition that there is no Ona'ah, it is identical to having the buyer agree to forgo his right to claim Ona'ah. Once he forgoes his right, the laws of Ona'ah no longer apply to the sale. It makes no difference whether the seller phrases the condition as, "I want *you* to forgo the laws of Ona'ah," or "I want the laws of Ona'ah not to apply to the sale." In either case, the seller is asking the buyer to agree to whatever is necessary so that the laws of Ona'ah will not apply.

Therefore, it must be that the condition of "she'Ein Bo Ona'ah" is invalid for a different reason. It is invalid because the seller did not say that "I want this to be sold on condition that there are no laws of Ona'ah." Rather, he said, "I want this to be sold on condition that the sale does not involve an overcharge." Since the sale indeed turned out to involve an overcharge, the sale is not valid.

In contrast, in the case of Shevi'is, when the lender says, "I am lending you money on condition that Shevi'is will not be Meshamet the loan," he cannot mean merely that he wants the borrower to repay the loan, because even if the borrower agrees to repay the loan, his consent will not prevent Shevi'is from being Meshamet it. (M. KORNFELD)

(b) What does Rav Anan intend to teach, if it is obvious that the sale will be invalid when the seller stipulates that he is not overcharging when he actually is overcharging? The answer to this question is that when a seller stipulates a condition, it is assumed that he makes the condition in order to benefit himself and not to benefit the buyer (see Bava Metzia 66a). Accordingly, one might think that even when a person says "Al Menas she'Ein Bo Ona'ah" -- "on condition that there is no Ona'ah," he really intends to say that he is selling it on condition that the *laws* of Ona'ah do not apply to the sale (which is the way Tosfos and other Rishonim interpret these words). As mentioned above, if the seller would say those words, then the condition *would* be valid and the sale *would* take effect despite the Ona'ah. Rav Anan teaches that this is not true; the sale would *not* take effect, because no additional intent may be read into the words of the seller. Rather, his words are taken literally. If he says that the sale should take effect on condition that there is no overcharge, then his condition is to be understood at face value, and, in the event that there is an overcharge, the sale is not valid.

(c) Why does the Gemara record Rav Anan's statement as an introduction to the statement of "Al Menas she'Lo Teshamteni Shevi'is"? According to the above approach, the answer is clear. If the statement of the seller would be reinterpreted to his benefit such that he means to stipulate that the laws of Ona'ah should not apply, then the lender's words, when he lends money on condition that Shevi'is should not be Meshamet the loan, should be reinterpreted similarly. He probably does not mean to say that Shevi'is should not be Meshamet, since he cannot tell the Torah what to do, but rather he means that he wants the borrower to agree to repay the loan despite the fact that Shevi'is is Meshamet the loan, and his condition *should* be valid. However, now that Rav Anan teaches that nothing may be read into the words of the seller, but they are to be understood literally, the words of the lender also must be understood literally. Since he says that he does not want Shevi'is to be Meshamet the loan, the condition is not valid since he is stipulating an impossibility.

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