Clarification #1: This goes according to those who hold 'La'av she'Nitan le'Azharas Misas Beis-Din Lokin Alav' (even a La'av that is punishable by Misas Beis-Din is also subject to Malkos [even though this is not Halachah]).

Clarification #2: If however, we could establish the Malkos in question with regard to that of Motzi-Shem-Ra, it would not be necessary to establish the case not like the Halachah.

Question: It is implied here that according to R. Meir, Malkos requires three judges, in which case he learns the Pasuk "ve'Hitzdiku es ha'Tzadik ... " with regard to Eidim Zomemin (as we will see on Daf Yud). In that case, how will he answer the Gemara's Kashya there 'Why do we not learn it from "Lo Sa'aneh"?

Suggested Answer: We cannot answer like we answer there 'Because it is a La'av she'Ein bo Ma'aseh' (which is not subject to Malkos unless we have a special Pasuk).

Refutation: Because in that case he would receive Malkos, seeing as in the first Perek of Makos, R. Meir learns from Motzi-Shem-Ra that Eidim Zomemin receive Malkos and pay; By the same token, he will learn from them that they are subject to Malkos, even though it is a 'La'av she'Ein bo Ma'aseh'.

Implied Answer: We cannot answer that it is because it is a La'av she'Niten le'Azharas Misas Beis-Din'?

Refutation #1: Firstly, because according to Rav Ashi (at the foot of the Amud), R. Meir holds ' La'av she'Niten le'Azharas Misas Beis-Din Lokin Alav'.

Refutation #2: And secondly, R. Meir actually learns the Azharah for Eidim Zomemin (not from Motzi Shem Ra, but) from another Pasuk (as the Gemara explains in Makos).

Answer #1: Even though he does learn Eidim Zomemin from Motzi Shem Ra, that is only with regard to Darshening "K'dei Rish'aso" (not with regard to 'Ein Lokin u'Meshalmin' but) for a different D'rashah, as we have learnt in 'Eilu Na'aros'. But regarding 'La'av she'Ein bo Ma'aseh, if not for a special Pasuk ("Vehayah im Bin Hakos ha'Rasha"), we would not learn Eidim Zomemin from it, seeing as the Torah reveals via "La'asos", that Malkos requires a Ma'aseh'.

Answer #2: Alternatively, we only know that Motzi Shem Ra itself receives Malkos from "Vehayah im Bin Hakos ha'Rasha", as the Gemara explains in Perek Na'arah 'we learn "ve'Yisru" from "ve'Yisru", "ve'Yisru" from "Ben", and "Ben" from "Vehayah im Bin Hakos ha'Rasha".

Clarification: R. Akiva refers to R. Shimon in the first Perek of Makos, who stated (immediately prior to this statement) that 'Just as two witnesses are not sentenced to death unless they are both Zomemin, so too, if there are three ... '. And we can say that disagreeing with R. Shimon, R. Akiva holds the first two witnesses are sentenced to death, even though the third one is not a Zomem.

Reason: Because he holds that one cannot compare three to two in this regard - seeing as the Torah writes "And you shall do to them what they planned to do ... ", and two of them, who had the power to have the defendant pronounced guilty on their own, did become Zomemin.

Alternative Explanation #1: Rashi however, explains in Makos that when R. Akiva says 'The third one mentioned by the Torah does not come to be lenient with them', he means (not that it comes to be strict, but) that to be lenient does not require a Pasuk, since the Pasuk writes there "And behold the witnesses are false" - implying the entire group of witnesses, so that they are not put to death unless they all become Zomemin, only the Pasuk comes to be stringent with them [in a different point]).

Alternative Suggestion #2: Why can we not explain that the third one does not come only to be lenient but also to be strict, in that although R. Shimon concedes that all three are sentenced to death, provided the third one came to testify 'Toch K'dei Dibur' of the first two; whereas according to R. Akiva, he is Chayav even if he comes after that?

Proof: Since R. Akiva used the word 'Nitfal' (implying that he arrived after the other two).

Refutation: We cannot say that, because since R.Akiva learns the Hekesh requiring all three to be Zomemin simultaneously, he will also compare the third one when he comes after the other (to exempt him), in the same way as he compares him to them with regard to being punished like them.

Clarification: The Gemara in the first Perek of Makos elaborates - 'What does one ask them? Rava says "Did you come to testify or to watch?" '. If they say that they came to testify, then if one of them is a relative or Pasul, then their testimony is disqualified; but if they claim that they only came to watch, what are two brothers who witnessed a murder expected to do?'

Explanation: It seems to the Ri that we do not say that if one of them is a relative or Pasul, then their testimony is disqualified, merely because they intended to testify (when they witnessed the event), but only if they actually appear in court with the intention of testifying.

Proof: Otherwise, all Gitin that are handed over in front of relatives or Pesulim will automatically become invalid, the moment one of them has the intention of testifying; and according to R. Yossi, even if none of them did!

Implied Question: Then why does Rebbi say 'What are two brothers who witnessed a murder expected to do'?

Answer: To be sure, they can rectify the situation by simply not going together to Beis-Din to testify. Only it sometimes happens that one of them goes to testify without knowing that his brother has already done so.

Implied Question: But surely that would not matter if he arrived after 'Toch K'dei Dibur' of the first one's testimony (see previous Dibur)?

Answer: Nevertheless, their testimony would be negated, because in this regard, we would compare 'three to two' even one after the other. This is because at the time when they witnessed the crime they saw it simultaneously with the intention of testifying; Consequently, their testimony is disqualified even thought they testified one after the other - as opposed to the third one being Pasul, only if he testifies Toch K'dei Dibur, which is because the Hazamah only takes place at the time when the witnesses testify.

Implied Question: According to the Ri, why does the Gemara ask 'Harug Yatzil?' ('Let the victim save the murderer'?)

Answer: That is only at the beginning of the Sugya, before we knew about the D'rashah "Yakum Davar" - that everything hinges on witnesses who uphold the testimony (in Beis-Din). But once we know that, the original answers that we gave to 'Harug Yatzil ... ?' fall away, since we preclude the victim and the murderer from disqualifying the witnesses, since they do not go to Beis-Din to uphold the testimony.

Explanation: Similarly, with regard to the principle 'Ein Eid Na'aseh Dayan' (a witness cannot become a judge), it seems to the Ri that it is only a witness who actually testifies who cannot become a judge (but not merely if he intended to do so.

Reason: This is because the reason that a witness cannot become a judge is either because the witnesses must be subject to Hazamah - and it is obvious that as judges, they will not be willing to accept Hazamah on themselves; or because the Torah writes in Devarim "And the two men (i.e. the witnesses) shall stand before Hash-m (i.e. the judges), to teach us that the witnesses must stand before the judges, and not that they themselves are the judges. And both of these reasons only apply to witnesses who testify, not to those who merely intend to do so.

Refutation: Not like the opinion of Rabeinu Shmuel, who explains in Bava Basra that if the witness who intends to testify is found to be a Karov or a Pasul, he disqualifies the entire testimony.

Explanation: Similarly, with regard to the fact that a witness cannot be a judge, the Ri referred to the Gemara in Echad Dinei Mamonos, which discusses three people who came to visit a sick person, which concludes 'Ratzu' Osin Din', from which can extrapolate that it is only if they came in order to visit him that they are permitted to adjudicate, but not if they came to testify.

Proof #1: Furthermore, the Ri proves that 'Ein Eid Na'aseh Dayan' is confined to a witness who is testifying. Otherwise, we will be faced with a discrepancy between two statements of Rav Yehudah, who rules in the first Perek of Makos like R. Yossi, that merely witnessing a crime renders one a witness, even though he has no intention of testifying; whereas in Bava Basra, he rules (in the case of the three people who entered to visit a sick person) 'Ratzu Osin Din'? Why is that, seeing as seeing alone renders him a witness?

Proof #2: Furthermore, according to this explanation, R. Yossi will not hold of the principle 'Hearing should not be better than seeing', neither as regards Eidus ha'Chodesh (where three people sw the new moon and they are a Beis-Din) nor as regards Sanhedrin who saw Reuven murder Shimon, even though they witnessed it in the daytime.

Refutation/Altertanive Explanation (1): It appears to the Rashba however that these are not Kashyos - because R. Yossi cannot hold that one becomes a witness with seeing alone, even if he subsequently testifies. This is because R. Yossi is the one who requires the witnesses to issue the warning (as we will see shortly). Consequently, just as two witnesses cannot testify unless they have issued a warning, so too, is the case with three witnesses. So we see that it is only the witnesses who warned who have the status of witnesses, but not the rest.

Alternative Explanation (2): And so it seems, that if all the witnesses become Zomemin, those who did not warn (whose testimony is futile without the testimony of those who did) are not sentenced to death. Likewise, the principle 'If one of them is found to be a Karov or Pasul' only applies to those witnesses that actually warned.

Implied Question: Then why does Rebbi say 'In the event that they warned them' (implying that R. Yossi does not require this condition)?

Answer: It is not in fact, meant to imply that R. Yossi does not require the witnesses to warn, since we see that R. Yossi requires more than Rebbi, in that whereas Rebbi will suffice with the mere intention to be a witness, R. Yossi requires them to actually warn as well! What Rebbi therefore comes to add is that Dinei Mamonos has the same Din as Dinei Nefashos.

Question: Why can we can extrapolate from what the Gemara says here that they are reiterating the Machlokes between Rebbi and R. Yossi, that R. Yossi does indeed apply 'Nimtza Echad Meihen Karov O Pasul ... ' even to a witness who merely sees the crime?

Answer: The Gemara is referring exclusively to their Machlokes in the Mishnah that the Gemara cites. From another Mishnah however, we learn that R. Yossi requires warning (as we explained).

Ruling: It is possible that Rav Yehudah rules completely like R. Yossi. Alternatively, he only rules like him with regard to his statement 'but by Dinei Mamonos, the Eidus stands with the remaining witnesses'. And with regard to the witness's intention, he rules like Rebbi, in which case the Gemara's Kashya in Makos 'What do we say to them' goes exclusively according to Rebbi.

Proof: And this is evident from Rebbi's words 'If they say "We came to watch", what will two brothers do ... '? And it is based on this that the Gemara asks 'What do we ask them?' This is because the need to warn cannot be literal, seeing as with regard to Dinei Mamonos there is no Hasra'ah. Consequently, we only need to know that the witnesses intend to testify. Hence the question 'Heichi Amrinan l'hu'?

Question: But did we not learn in the Mishnah in 'Eilu Hein ha'Golin', that according to R. Yossi, a hater is sentenced to death, since it is as if he was warned?

Answer: The Gemara asks this Kashya in the first Perek of Makos, and establishes the Tana as R. Yossi b'R. Yehudah.

Question: Assuming that this refers to Abaye, who maintains that everyone is concerned about La'az, R. Meir ought then to require twenty-three, despite the fact that the witnesses clashed during the Bedikos, since we are afraid that other witnesses may come and testify that the woman commited adultery (according to both Rashi and Rabeinu Tam)?

Answer #1: It is speaking where the witnesses stated that there where no other witnesses on the scene. And the reason that the Rabbanan nevertheless require twenty-three, Rabeinu Tam explains, is because it is speaking where the witnesses of the father contradicted those of the husband completely, and we suspect that the latter will bring witnesses to be Mazim the witnesses of the former, thereby negating the Hakchashah of the husband's witnesses.

Answer #2: Alternatively, it is speaking where the husband has two pairs of witnesses, which contreadict each other in the Bedikos, in which case, there is no longer reason to suspect that other witnesses may come according to R. Meir, because even if they do, they will automatically be contradicted in the Bedikos by one of the earlier pairs; whereas according to the Rabbanan one can suspect that other witnesses may come, since we ignore Hakchashah in the Bedikos.

Answer #3: Alternatively, it speaks where the father's witnesses were Mazim the father;s witnesses, in which case everyone agrees that we do not suspect that other witnesses may come. And the reason that the Rabbanan require twenty-three is due to the Kavod of the first Beis-Din, even if the Hazamah took place before the conclusion of the Din, and certainly if it took place after it, where there is even more reason to require twenty-three. Whereas according to R. Meir, 'Kavod Rishonim' does not apply here, since, due to the Halchashah in the Bedikos, there was no case of Chayav Misah here.

Question: Why are the witnesses subject to the death-penalty? Bearing in mind that they did not warn the the husband's witnesses (seeing as Eidim Zomemin do not require warning), why can they not claim that they did not come to render them Chayav, only to obligate the husband to pay?

Precedent: Like we find in Perek Hayu Bodkin, where the Gemara says, according to the opinion that holds 'Chaver Ein Tzarich Hasra'a h', the witnesses of a Na'arah Me'urasah Chaveirah are not subject to the death-penalty, because they can claim that they merely came to forbid her on her husband (but not to have her killed)?

Answer: Our case is different, inasmuch as the witnesses know that the Beis-Din will sentence the witnesses to death if they are Zomemin; whereas in 'Hayu Bodkin' it is possible that either they did not know that the woman was a Chaveirah or that a Chaver does not require Hasra'ah.

Extention: Likewise, when the Gemara asks there 'Then what is the case of an Ishah Chaveirah, who, according to R. Yossi b'R. Yehudah does not need Hasra'ah?, the Gemara could have answered when the witnesses knew both that she was a Chaveirah and that a Chaver does not require Hasra'ah.

Question: One can query this from the Gemara in 'Keitzad ha'Regel', where the Gemara exempts the Mazik from paying in a case where the kid-goa belonged to one person and the Eved (for which he is Chayav Misah) to another

Answer: The answer is given elsewhere. See Tosfos ha'Rosh.

Implied Question: In Perek Zeh Borer, Rava requires 'a Rasha of theft' (where the witness gains a monetary benefit in order to be disqualified)?

Answer: This is akin 'a Rasha of theft' (like someone who eats Neveilos for pleasure), because, since he willingly transgresses the will of his Creator for his personal gratification, by the same token he will willingly testify falsely in order to gain money!

Implied Question: Then why does the Gemara say there that someone who is suspect on adultery is nevertheless Kasher to testify?

Explanation #1: Rashi explains there that the Gemara is speaking (not where there are witnesses that someone actually committed incest, but) where he was to familiar with forbidden women and was even Misyached (secluded himself) with them.

Question: So why does the Gemara there ask 'What, he receives forty lashes, and is Kasher'?

Answer: That is because the Rabbanan give Malkos on Yichud of all Arayos except for a married woman, where they give Malkos for a bad rumor that was spreading.

Explanation #2: Alternatively, in the Gemara in 'Zeh Borer', in the case of adultery, he is Kasher to testify because, due to the power of the Yeitzer ha'Ra, he is considered an Oneis, whereas by Revi'ah (with another man), where the pleasure is not so great, his Yeitzer ha'Ra is not so strong.

Explanation #3: Alternatively, here too, his Yeitzer ha'Ra is very powerful, and he is Kasher to testify in other cases, but not regarding Revi'ah, since whoever is suspect of transgressing in a certain matter is not eligible to judge or to give testimony in that area of Halachah.

Explanation #1 of Gemara in Makos: When the Gemara asks in the first Perek of Makos 'Let the Nirva (the man who has been raped) save the defendant? ', it cannot mean to ask that he ought to be Pasul because he hates the rapist for raping him by force, as would initially appear to be the case, due to its similarity to 'Harug Yatzil", which the Gemara also asks.

Refutation #1: Because it is evident in our Sugya that 'Nirva le'Onso' is Kasher, in which case we must say that he does not hate the rapist as much as the man who is being murdered hates the murderer.

Refutation #2: Alternatively, with regard to the Harug himself, we might say that he is not Pasul because of hatred, but rather because the second before he actually dies, he becomes a Tereifah, who is not eligible to testify.

Explanation #2 of Gemara in Makos: It therefore appears that the Gemara's Kashya in Makos refers to a man who was 'raped' be'Ratzon.

Implied Question: Even though according to Rava, he ought to be Kasher?

Answer: The reason that he is not, is because the Gemara is speaking where there are witnesses that he was 'raped' li'Retzono, in which case he is not fit to testify since it is now a case of 'Nimtza Echad Meihem Pasul', and his testimony is disqualified.

Question: Seeing as the Gemara is talking about Nirva be'Ratzon (as we explained), why does the Gemara then ask 'Horeg ve'Rove'a Yatzil' - meaning that they ought to save themselves. It could have asked the same question from Nirva (about whom he has just been speaking), who ought to be Patur for the same reason?

Answer (Explanation #3 of Gemara in Makos): Some commentaries explain that the Gemara's initial Kashya is specifically from victims who are related to the defendant (and not to himself, and may well b speaking about a Nirva be'Oneis), who ought then to save him from the death-sentence.

Question: Perhaps indeed they do (in which case there is nothing to ask)?

Answer #1: This cannot be correct, seeing as the Pasuk specifically sentences to death someone who slays his father or mother, even though they are relatives.

Answer #2: And by the same token, regarding Nirva too, the Torah sentences to death someone who commits incest with his father, which, according to some commentaries, is meant literally.

Question: The Rivam asks from the Mishnah on the second Perek of Kesuvos 'Witnesses who attest to their signatures on a document, but who claim that they were forced to sign (Anusim), minors or Pesulei Eidus, are believed; However, Rami bar Chama the confines this ruling to Anusim on pain of death, but Anusim on account of financial pressure, in which case they are not believed. And Rava attributes this to the principle 'Ein Adam Meisim Atzmo Rasha'. The question is why we do not apply the principle of 'Palginan' there too, and believe them that that they were Anusim, but not on account of financial pressure?

Answer, Explanation #1: It therefore seems that the Gemara in Kesuvos follows the opinion in 'Yesh Nochlin' that we do not say 'Palginan' by one person - such as for example where a man claims that he divorced his wife, where we do not decline to believe him regarding the past, but believe that she is divorced from now on.

Two Precedents: Similarly, by 'Anusim Hayinu Machmas Mamon', where the witness is testifying on himself, once we believe that he was an Oneis, wehave to believe him that it was due to financial pressure. And the same applies where he claims that P'loni 'raped' him with his consent. There too, we cannot believe him that P'loni raped him, but not that it was with his consent (only against his will), since that would be 'Palginan' on one person, to believe one half of what he testifies but not the other. What we do however say (in the earlier case) is that P'loni did rape a man, but that it was not him.

Support #1: And this is evident from the case later where Reuven claims that Shimon raped his ox, where, if Rava assumes that 'a person is a relative to his property' (and cannot therefore be believed on testimony concerning it), then we would be believed that P'loni raped someone else's ox, but not his; since by the case of ox, there is no difference between Oneis and Ratzon.

Support #2: And it is also evident from the Gemara in 'Zeh Borer', where when Re'uven claimed that Shimon lent him money on interest, he is believed that Shimon lent on interest, but not that he lent him.

Proof: And proof for this lies in a case where a Kohen is married to Reuven's sister, and Reuven and Shimon testify that Levi committed adultery with her, where it seems logical that, according to Rava, they combine to have Levi killed, but not Reuven's sister, not even to forbid her to her husband, to whom she is forbidden, even if she is raped.

Implied Question: Why, in the Gemara in Kesuvos, when the witnesses attest to their signatures, do we believe them at all?

Answer: Because they are believed even without Palginan (See Tosfos there DH 've'Ein Adam Meisim Atzmo Rasha')

Explanation #2: Another answer to explain why we do not say 'Palginan' in Kesuvos is on account of the principle 'Eidim ha'Chasumin al ha'Sh'tar, Na'aseh K'mi she'Nechkerah Eidusan be'Beis-Din' ('Once witnesses who have signed on a Sh'tar, their testimony requires no further examination'). Since 'Kiyum Sh'taros' (the obligation to corroborate a Sh'tar) is therefore de'Rabbanan, we do not apply 'Palginan' to say that the witnesses were forced to sign, but not due to monetary pressure (in order to invalidate the Sh'tar).

Question: In that case, why does the Gemara in Gitin apply 'Palginan' with regard to an Eved who brings his Get Shichrur, on which is written 'Atzm'cha u'Nechasai Kenuyin Lach', and where Rabah rules that he acquires himself but not the property? Why do we not negate his testimony?

Answer: That case is different, seeing as Chazal instituted by all cases of Get Ishah and Get Shichrur that a witness who transports a Get is believed when he testifies that it was written and signed in his presence, and the Sh'tar does not require Kiyum, even though other Sh'taros do.