[9a - 19 lines; 9b - 20 lines]

1)[line 1]דאתרו (ביה) [בה] מלקותISRU (BEI) [BAH] MALKUS (LAV SHE'NITAN L'AZHARAS MISAS BEIS DIN, LOKIN / EIN LOKIN ALAV - Whether or Not one may Receive Lashes for a Capital Crime)

(a)As a general rule, one who transgresses a negative prohibition in the Torah receives thirty-nine lashes (Malkus; see Background to Sotah 44:16). Malkus are administered only if the sinner was observed by valid witnesses and first suitably warned (Hasra'ah; see Background to 8:57).

(b)Exceptions to this rule include those prohibitions for which Beis Din administers the death penalty. If one who committed a sin deserving of the death penalty (a "Lav she'Nitan l'Azharas Misas Beis Din") was warned that his action would render him liable to receive Malkus, then he certainly cannot receive the death penalty. Tana'im disagree, however, as to whether or not Beis din will administer Malkus in such a situation. Rabbi Yishmael rules that under such circumstances, one will receive Malkus. Rebbi Akiva disagrees and maintains that since Beis Din would not have had the option of forgiving one who is liable to receive the death penalty, they cannot administer Malkus for such a prohibition either (Makos 13a-b).

(c)Rav Ashi maintains that the case discussed in our Mishnah is one in which there are witnesses to the act of adultery committed by the wife. They warned her, however, only that she would receive Malkus for her transgression. Both Tana'im agree that she will receive Malkus in this case, as one of them is Rebbi Yishmael himself (see following line), and the other agrees with him in this matter.

2)[line 1]קטלאKETALA- death

3)[line 2]בפלוגתא דרבי ישמעאל ורבנןPELUGTA D'REBBI YISHMAEL V'RABANAN- the disagreement between Rebbi Yishmael and the Rabanan [cited in our Mishnah regarding whether a case in which Beis Din administers Malkus requires twenty-three judges or only three]

4)[line 5]קרובKAROV- a relative [who is disqualified from testifying on behalf of family member]

5)[line 5]פסולPASUL (ED PASUL - One who is Disqualified from Giving Testimony)

(a)A Gazlan (thief) is an invalid witness, since his Halachic status is that of a "Rasha" - a wicked person who has knowingly transgressed a Torah prohibition (see Shemos 23:1). Therefore, if valid witnesses testify that a certain person stole from another, he is henceforth disqualified from giving testimony in Beis Din.

(b)One acquires the status of a "Rasha," who is disqualified as a witness, only if it is clear that his intention was to steal money from another. If it is possible that he was merely attempting to elude the claims of another until he had time to marshal the necessary funds (Ishtamutei), then he remains a valid witness. Accordingly, one who denies a loan remains fit to testify, since we may assume that his intention is only to delay payment. Similarly, a Shomer (custodian) who denies that he holds a Pikadon (the item entrusted to him) is not disqualified even when witnesses testify that he did indeed receive it, since he may have lost it and wishes to buy time with which to find it. If one denies holding a Pikadon and witnesses testify that at that time it was in his possession, however, then he clearly was attempting to steal it, and from that point he has attained the status of a disqualified witness (Bava Metzia 5a).

6)[line 6]אליבא דרבי עקיבאALIBA D'REBBI AKIVA- within the opinion of Rebbi Akiva

7a)[line 7]לא בא שלישי אלא להחמיר עליוLO BA SHELISHI ELA L'HACHMIR ALAV- The Mishnah (Makos 5b) addresses the question of why the verse (Devarim 17:6; see below, entry #17) states that two or three witnesses are required before administering capital punishment. If two are enough, is it not obvious that three will suffice? The Mishnah records a disagreement between Tana'im as to what we derive from these extra words. Rebbi Akiva maintains that "[the mention of] the third [witness] comes for the express purpose of teaching a stringency regarding him."

b)[line 8]לעשות דינו כיוצא באלוLA'ASOS DINO KA'YOTZEI B'ELU- to equate his Halachic status to that of the other two [in that they will all receive the death penalty if they are found to be Zomemim, and the third one to testify cannot exonerate himself with the claim that the intended victim would have been put to death even without his testimony]

8)[line 9]הכתובHA'KASUV- lit. that which is written; i.e., the Torah

9)[line 9]הניטפל לעוברי עבירהHA'NITPAL L'OVREI AVEIRAH- one who is secondary to those who transgressed

10)[line 10]על אחת כמה וכמהAL ACHAS KAMAH V'CHAMAH...- all the more so... The Gemara (Yoma 76a et. al.) establishes that HaSh-m is many times more generous when He rewards than He is demanding when He punishes (see also Girsa of RASHI).

11a)[line 15]ומניין שאפילו מאה?MINAYIN SHE'AFILU ME'AH?- how do we know that even one hundred [witnesses are disqualified when one of them are found to be invalid]?

b)[line 15]תלמוד לומר, "עדים"TALMUD LOMAR, "EDIM"- the word "... [three] witnesses..." comes to teach [that any number of witnesses are affected by this rule, since the verse could have stated "Upon the testimony of two witnesses or three shall he who is condemned to death die...]"

12)[line 16]בדיני נפשותB'DINEI NEFASHOS- regarding cases of capital punishment [when there is a special Mitzvah to be lenient (see 69a, based on Bamidbar 35:35)]

13)[line 17]תתקיים עדות בשערTISKAYEM EDUS B'SHA'AR- the testimony will stand based upon the rest [of the witnesses, who are valid]

14a)[line 18]ואימתי?V'EIMASAI?- and when [is it in cases of capital punishment that the testimony is invalid if one of the witnesses is found to be invalid]?

b)[line 18]בזמן שהתרו בהןBI'ZMAN SHE'HISRU BA'HEN- when [the invalid witness] delivered Hasra'ah to [they who transgressed]

9b----------------------------------------9b

15)[line 1]מה יעשו שני אחים ואחד, שראו באחד שהרג את הנפש?MAH YA'ASU SHNEI ACHIM V'ECHAD, SHE'RA'U B'ECHAD SHE'HARAG ES HA'NEFESH?- what should two brothers and another who witnessed a murder do? According to Ravina, the case of our Mishnah is one in which among those who witnessed the wife's infidelity was an invalid witness who did not deliver Hasra'ah. (See Insights.)

16)[line 2]ואיבעית אימאIYBA'IS EIMA- if you wish, you may say [the following explanation of the Machlokes in our Mishnah]

17)[line 6]"עַל פִּי שְׁנַיִם עֵדִים [אוֹ שְׁלֹשָׁה עֵדִים יוּמַת הַמֵּת...]""AL PI SHENAYIM EDIM [O SHELOSHAH EDIM YUMAS HAMES]"- "Upon the testimony of two witnesses [or three witnesses shall he who is condemned to death die...]" (Devarim 17:6).

18)[line 7]דאיתכחושISKACHUSH- they were contradicted

19)[line 8]בבדיקות... בחקירותBEDIKOS... CHAKIROS - (EDUS: DERISHAH V'CHAKIRAH)

(a)Before witnesses testify in Beis Din to convict a perpetrator, the judges cross-examine each witness individually to determine whether or not his testimony is acceptable.

(b)Two categories of questions are asked of the witnesses in this verification process - Chakiros and Derishos (Sanhedrin 32a; derived from Devarim 13:15, 17:4, and 19:18). Chakiros are basic questions that serve as the baseline for any testimony. These seven questions, as derived from the verses, are:

1.During which seven-year Shemitah cycle of Yovel did the event occur?

2.During which year of the Shemitah did the event occur?

3.During which month of the year did the event occur?

4.On which day of the month did the event occur?

5.On which day of the week did the event occur?

6.During which hour of the day did the event occur?

7.Where did the event take place? (Mishnah, Sanhedrin 40a)

(c)The purpose of these questions is to establish exactly where and when the witnesses claim to have witnessed the event. Only after this is established is it possible for the witnesses to become Zomemim (see Background to 8:52), and witnesses that cannot become Zomemim are not accepted in Beis Din since they are suspected of falsifying their testimony (RASHI to Pesachim 12a and Bava Kama 75b DH Aval Hacha).

(d)Derishos (referred to in our Gemara as Bedikos) are follow-up questions that probe the witnesses for further details of the event. Examples of such details asked of the witnesses include physical characteristics of the litigant or the color of his clothing. No limit is placed on the number or type of Derishos asked, and it is considered praiseworthy for a Beis Din to ask many of them (Mishnah, 40a). Witnesses do not become disqualified from monetary matters if they either cannot answer Derishos or contradict each other in their answers (30b). Tana'im disagree as to whether such witnesses are disqualified from testifying for capital cases. Ben Zakai rules that they are indeed disqualified, whereas the Chachamim maintain that they are not. If the Derishos are asked regarding the main testimony - e.g., regarding the weapon used to commit the murder - than even the Rabanan agree that the witnesses are disqualified if they do not agree (Mishnah, 40a; 41a).

20)[line 9]מעשה ובדק בן זכאי בעוקצי תאניםMA'ASEH U'VADAK BAN ZAKAI B'UKTZEI TE'ENIM- an incident occurred and Ben Zakai tested [the witnesses] by [asking them if] the stems of the figs [growing on the fig tree under which they claimed that the episode happened had thick stems or thin stems]

21)[line 13]ואין משלמין ממוןEIN MESHALMIN MAMON (KAM LEI BID'RABAH MINEI - He Remains with the Greater of Them)

(a)Should one be liable to receive two punishments for a single action, whether they are both corporal or one corporal and one monetary, he receives only the more severe punishment and is exempted from the less severe one. This is known as "Kam Lei bid'Rabah Minei" - "he remains with the greater of them." For example, one who stabs another to death will receive the death penalty, but will be exempt from paying for the shirt ruined by the stabbing.

(b)The Gemara (Kesuvos 31a) discusses the definition of a single action for the purposes of Kam Lei bid'Rabah Minei. According to one opinion, an entire series of actions that are necessary for the transgression of a sin constitute a single action with regard to Kam Lei bid'Rabah Minei.

(c)Although Beis Din cannot hold one responsible for damages, etc., when he receives a more severe punishment, he will be held responsible for them by the Heavenly court.

(d)There are a number of situations in which this rule may not apply:

1.Rebbi Meir is of the opinion that only a death penalty will absolve one from other punishments. One who is liable to receive Malkus (lashes) must pay in addition to receiving Malkus (Kesuvos 33b).

2.An unintentional sin does not result in a punishment. Whether the unexecuted punishment is enough to exempt one from payment is the subject of a Machlokes Amora'im. If the sin was one that would have warranted Malkus, Rebbi Yochanan rules that since the Malkus were not delivered, the sinner is not exempt from monetary liability. Reish Lakish maintains that the act was one that is punishable by Malkus and therefore exempts the sinner from payment, even when the Malkus are not actually delivered. Rav Dimi understands that this same Machlokes applies in a case in which the undelivered punishment was the death penalty; Ravin maintains that in this case both Rebbi Yochanan and Reish Lakish agree that Kam Lei bid'Rabah Minei is applicable (Kesuvos 34b-35a).

3.In certain cases in which the payment is due to one other than the victim, the sinner may be liable to pay even when his action is also punishable by the death penalty or Malkus.

(e)In the case of our Gemara, those witnesses who testified that a woman committed adultery are exempt from paying for her Kesuvah (marriage document; see Background to Bava Metzia 17:12). This is true even though a woman who commits adultery loses the money due her through her Kesuvah. Since they receive the death penalty as a result of the same testimony through which they attempted to deprive her of her Kesuvah, the rule of Kam Lei bid'Rabah Minei applies.

22)[line 15]נהרגין ומשלמין [ממון]NEHERAGIN U'MESHALMIN [MAMON]- they are put to death [for attempting to have the witnesses of the husband put to death] and they must pay [money since they wished to cause the husband to pay one hundred Sela'im to the father through their testimony (see Background to 1:8)]

23a)[line 15]ממון לזהMAMON LA'ZEH- (the reason why they receive the death penalty and are also obligated to pay is that) it is monetary payment to this one (namely, the husband)

b)[line 15]ונפשות לזהU'NEFASHOS LA'ZEH- and a capital punishment as a result of [attempting to have] this one (namely, the witnesses of the husband) [put to death] (see above, entry #21:d:3)

24a)[line 16]פלוני רבעו לאונסוPELONI REVA'O L'ONSO- so-and-so sodomized him (i.e., me, referring to himself in the third person) against his will

b)[line 17]הוא ואחר מצטרפין להרגוHU V'ACHER MITZTARFIN L'HORGO- he and another [witness] may unite to [testify against him, leading to] his death

25)[line 17]רשע הואRASHA HU- [according to his own testimony] he is one who has knowingly transgressed that which the Torah prohibits

26)[line 18]אַל תָּשֶׁת רָשָׁע עֵדAL TASHES RASHA ED- "Do not join with a wicked witness." This is a paraphrase of a longer verse, which reads, "... אַל תָּשֶׁת יָדְךָ עִם רָשָׁע לִהְיֹת עֵד חָמָס" "... do not join hands with a wicked person to serve as a false witness" (Shemos 23:1). The Gemara regularly understands this to mean that one who knowingly transgressed a Torah prohibition is an invalid witness (see Sanhedrin 27a-b).

27a)[line 19]אדם קרוב אצל עצמוADAM KAROV ETZEL ATZMO- a person is related to himself (and is therefore invalid as a witness regarding himself, as one may neither testify for nor against his relative (Mishnah, 27b)

b)[last line]ואין אדם משים עצמו רשעV'EIN ADAM MESIM ATZMO RASHA (PALGINAN DIBURA - Splitting the Words of a Statement)

(a)Tana'im disagree as to whether or not it is possible to act upon one part of a person's statement while disregarding the rest of his words. One case discussed is one in which the owner of a slave bequeaths all of his possessions to his slave with the exception of one unspecified parcel of land. The Tana Kama rules that since we cannot determine which plot was not included in the present, the slave cannot acquire any land that had belonged to his owner. Since this part of the document cannot be carried out, neither can any of it - and the slave therefore remains enslaved to the heirs of his previous owner. Rebbi Shimon maintains that while it is true that the slave cannot acquire any land, he himself certainly was included in the gift. Therefore, at the very least he may go free. This concept of acting upon only part of the implications of a statement is termed "Palginan Dibura" - "we split the words."

(b)In our Gemara, Rava maintains that since one is invalid to testify regarding himself in court, his statement of "Peloni Reva'o li'Retzono" cannot be accepted regarding his own status. It can be accepted, however, regarding the sodomizer (see Insights).

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