1) "MATIR ATZMO L'MISAH" IN A CASE OF "EDIM ZOMEMIM"
QUESTION: The Gemara cites a source for the Halachah that Beis Din does not execute a person unless he was "Matir Atzmo l'Misah" by responding to Hasra'ah and saying, "This is exactly my intention. Let Beis Din kill me because of my act." The source is the verse, "Yumas ha'Mes" (Devarim 17:6), which implies that the sinner accepted upon himself the death penalty even before Beis Din issued its verdict.
The TUMIM (CM 38, DH v'Da) asks that if Beis Din cannot kill a person unless he is "Matir Atzmo l'Misah," then why does the Gemara in Kesuvos (33a) not use this as a way of proving that Edim Zomemim do not need Hasra'ah? (See Rashi to 40b, DH she'Ken Tzarich Hasra'ah.) The Gemara there says that although witnesses cannot be warned with Hasra'ah before they testify lest they refrain from testifying, and they cannot be warned with Hasra'ah a few minutes after they have testified since they can no longer retract their testimony at that point, they still may be warned with Hasra'ah "Toch Kedei Dibur" of finishing their testimony, since within that time they still can retract their testimony. This applies, however, only when the Hasra'ah involves simply telling the witnesses what punishment they will receive if they are made into Edim Zomemim. However, if the Hasra'ah is valid only when the witnesses reply, "This is exactly my intention. Let Beis Din kill me because of my act," then obviously the witnesses cannot become sentenced to death based on such a statement. By saying such a statement, the witnesses are admitting that their testimony is not true, and thus they are effectively retracting their testimony "Toch Kedei Dibur" and exempting themselves from punishment!
The Tumim mentions that the Gemara in Kesuvos may be based on the opinion of Rebbi Yosi b'Rebbi Yehudah who, according to one answer in TOSFOS here (DH b'Ishah Chaveirah) and RASHI (72b, DH ha'Hu), maintains that it is not necessary for the guilty part to be "Matir Atzmo l'Misah." However, he notes that this is a very forced answer.
(a) This question forces the Tumim to conclude that although Beis Din cannot kill a person who is not "Matir Atzmo l'Misah" because of the verse "Yumas ha'Mes," for Beis Din to administer a punishment of *Malkus* it is not necessary for the guilty person to have been "Matir Atzmo l'Malkus." The Gemara in Kesuvos seeks a source that Edim Zomemim do not need Hasra'ah for *Malkus*, and therefore the requirement to be "Matir Atzmo l'Misah" for someone who is liable for Misah is irrelevant.
This is also the opinion of the CHUT HA'SHANI (#17), who writes that it is not necessary for one to be "Matir Atzmo l'Malkus."
However, the GILYONEI HA'SHAS (Sanhedrin 81b) points out that Rashi there (DH Hasru Bo) and Tosfos in Temurah (7a, DH Ela) write that it *is* necessary for one to be "Matir Atzmo l'Malkus" in order to be punished with Malkus. This is also the opinion of the RAMBAM (Hilchos Sanhedrin 12:2) according to the LECHEM MISHNEH. Although the verse cited here mentions only the death penalty, a Kal va'Chomer teaches that it is necessary to be "Matir Atzmo l'Malkus" as well, since the Gemara here and earlier (40b) makes it clear that a *greater* form of Hasra'ah is necessary for a *lesser* form of punishment (see SEDEI CHEMED 4-M:31, DH Amnan).
(b) Perhaps the Gemara assumes that Hasra'ah can be given to Edim Zomemim since they can be "Matir Atzmo l'Misah" by saying, "*If* I am found to be an Ed Zomem, then let Beis Din kill me."
The Tumim does not accept this as a valid answer. Apparently, his logic is that the point of being "Matir Atzmo l'Misah" is so that the guilty party should pronounce his own sentence. That is, being "Matir Atzmo l'Misah" is the beginning of the verdict against him. Hence, by saying "*If* I am guilty, then I should be killed," he has not pronounced anything upon himself, since he has not accepted unequivocally that he will be punished.
However, perhaps another explanation may be offered for why a person must be "Matir Atzmo l'Misah" in order to be punished with death. The ME'IRI (40b) explains that it is necessary for the accused to be "Matir Atzmo l'Misah" because if the sinner replies to the Hasra'ah by saying merely, "Yes, I know," and he is not "Matir Atzmo l'Misah," it could be that he does not expect to be taken to court to be killed, but rather he thinks that the witnesses who warned him intended only to reproach him. Accordingly, the Hasra'ah did not have its full deterrent power, and thus Beis Din cannot determine the extent of the sinful intention. Hence, when Edim Zomemim say, "We are ready for the court to sentence us *if* we are found guilty," it is clear that they are taking the Hasra'ah seriously, and therefore their statement suffices as fulfillment of the requirement to be "Matir Atzmo l'Misah."
2) TWO WITNESSES WHO SAY THAT THEY DO NOT KNOW
QUESTIONS: The Mishnah (40a) teaches that if one witness responds to a question of the Chakiros by saying, "I do not know," the testimony is invalid. In contrast, if one witness responds to a question of the Bedikos by saying, "I do not know," and *even if two* say, "We do not know," the testimony is accepted.
The Gemara asks what the Mishnah means to teach by saying that "*even* if two say, 'We do not know.'" What difference does it make if one of the two witnesses does not know or if both of the witnesses do not know? In either case, Beis Din does not have complete testimony, and yet their testimony is valid.
Rav Sheshes proposes that the Mishnah means that even when there are *three* witnesses and two of them say that they *do* know in response to a question of the *Chakiros* and the third witness says that he does not know, the entire testimony is *not valid*.
Rava rejects this proposal, because the Mishnah says that the testimony *is* valid when two witnesses say that they do not know. How can we change the words of the Mishnah such that it says the opposite?
Rava therefore explains the words of the Mishnah to mean that when there are three witnesses and two of them say that they *do* know and the third witness says that he does not know, with regard to the *Chakiros* the entire testimony is *valid*.
The only difference between the answers of Rava and Rav Sheshes is that Rava keeps the world "valid" ("Kayemes") and does not change it to "invalid" ("Beteilah"). However, Rava himself changes the words of the Mishnah, as Rav Sheshes does! The Mishnah says that two witnesses say, "We do not know," and Rava changes those words to read, "We do know." Why does the Gemara not challenge Rava with the same question that Rava asks on Rav Sheshes? How can Rava change the Mishnah to say "we do know" when the Mishnah says that they say "we do not know"? (CHIDUSHEI HA'RAN)
(a) The CHIDUSHEI HA'RAN and CHAMRA V'CHAYEI explain that it is more likely that the correct text of the Mishnah is that the testimony is *valid*, as is written, than that the statement of the two witnesses was that they do *not* know. The reason for this is that the Mishnah uses one word ("Kayemes") to teach the Halachah for two cases -- the case in which a witness says "I do not know" with regard to the Bedikos, and the case in which two witnesses say that they do not know (or that they do know) with regard to the Chakiros. In the former case, the testimony is valid. Therefore, the Mishnah's ruling must have been that the testimony is also valid when the two witnesses say that they do (or do not) know with regard to the Chakiros.
(b) The ARUCH LA'NER cites RASHI earlier (10b, DH v'Ha Ibur) who writes that it is common for a Tana to inadvertently omit a word that he forgot, but the Tana does not change one word into an entirely different word. Similarly, the Tana here might have added the word "*Ein* Anu Yod'in" inadvertently, but the Tana would not confuse the word "Kayemes" with the word "Beteilah."
(c) Another answer might be as follows. How can Rav Sheshes and Rava suggest that the words, "even if both witnesses say, 'We do [not] know'," are referring to the witnesses' response to a question of the *Chakiros*? The Mishnah at this point is clearly discussing the *Bedikos*!
Perhaps Rava actually means to suggest that the Mishnah should be read as it appears in our texts, and that these words indeed refer to the witnesses' reply to the Bedikos and not to the Chakiros. The Halachah that Rava teaches is the *inference* from the words of the Mishnah and is not explicitly stated in the Mishnah.
According to Rava's reading, the Mishnah refers to a single case in which three witnesses come to testify and are asked the questions of the Bedikos. The Mishnah teaches that if one of the three says, "I do not know," then even if the other two *also* say that they do not know, the testimony is valid. (That is, the word "va'Afilu" in the Mishnah should be read as "Afilu," without the Vav.) This phraseology of the Mishnah implies that with regard to the Chakiros, the Halachah is different: if the third witness says -- in response to a question of the Chakiros -- that he does not know, the testimony will be valid only if the other two witnesses say that they do know. This is Rava's intention.
According to this explanation, Rava's emendation of the Mishnah is insignificant (it merely omits the Vav of "va'Afilu"). This also seems to be the intention of the KOS HA'YESHU'OS.
(d) Consistent with the third answer above, one may suggest further that Rava is not changing even a single letter in the Mishnah. Rather, Rava's intention is to explain why the Mishnah considers it a Chidush to say that when two witnesses say that they do not know, the testimony is valid. Rava answers that the Mishnah is discussing a situation in which there are three witnesses. Accordingly, the Mishnah is teaching an additional Chidush by saying that two witnesses say they do not know. When a single witness says "I do not know," Beis Din still has the valid testimony of the other two witnesses. The Mishnah adds that even when two of the three witnesses say "we do not know," leaving only one witness who does know, the testimony remains valid.
However, this explanation is acceptable only if the Mishnah does not consider all of the witnesses to be giving a single testimony. If all of the witnesses must be valid in order to accept the testimony, then once the Mishnah teaches that the testimony is valid when *one* says "I do not know," we know already that the testimony is valid when two witnesses say that they do not know. Consequently, from the words "even if two say, 'We do not know'," it can be derived that when more than two witnesses testify together, it is necessary only to validate the testimony of two of them (and not all of them). This is what Rava means when he says that these words teach that when two witnesses answer the Chakiros and the third does not, the testimony is valid.