Question: If one establishes the Reisha by two pairs of witnesses, why should they pay the value of the eye to the Eved? ...

Reason: ... Why can we not ask what we asked earlier 'After sending him out to freedom, do they also have to pay him for the eye!'?

Question (cont.): Why can't they say 'We came for his good (to set him free)!' ...

Precedent: ... as the Gemara says in Perek Hayu Bodkin (Sanhedrin, Daf 41a), that they are able to say 'We came to forbid her on her husband' (and not to have her sentenced to death).

Answer: According to how we now establish the Reisha - by Meipach and Hazamah, we conclude that it speaks where the Eved has already appeared in Beis-Din, in which case it is presumably already public knowledge that he has been set free ...

Answer (cont.): Moreover, the master himself admits to that, as the Tana states 'she'ha'Rav Omer kein' - that he confesses that he appeared in Beis-Din ...

Answer (cont.): ... and the whole point of their coming to Beis-Din now is because the Eved claims the value of his eye, for which he invites his master (who admits that he owes him the value of his tooth) to a Din Torah.

Answer (cont.): Consequently, when the witnesses arrive, they arrive to detract from the claims of the Eved, since, if they came because of the value of his eye, they would have nothing to say, since they know that other witnesses will come for that.

Conclusion: Initially however, before we knew that he had appeared in Beis-Din, even if the master were to admit many times over, the Eved would require witnesses ...

Reason: ... due to the principle 'Modeh bi'Kenas, Patur'.

Conclusion (cont.): That is why there the Gemara is justified in asking 'After sending him out to freedom, do they also have to pay him for the eye!'?

Question: Why does Abaye push to establish the Seifa by 'Meipach ve'Hazamah' ...

Question (cont.): ... seeing as we establish the case by 'Amad be'Din', why can we not say that the Eved is claming the value of his eye, the master admits to the value of his tooth, and the Eved brings witnesses that he knocked out his tooth and blinded his eye, whom the current witnesses are now Mazim?

Answer: To be sure, there is no difference between where the witnesses switch the cases following the admission of the master or following the testimony of other witnesses ...

Answer (cont.): .. only the Tana mentions the normal case, since it is unusual for the master to admit anything unless there are witnesses in the matter.

Refuted Reason: The reason for this is not because, had he so wished, he could have come to Beis-Din and confessed - and been declared Patur ...

Refutation: ... since even according to Shmuel, who says later (on Daf 75a) that if somebody confesses to a K'nas and then witnessess arrive, he is Chayav ...

Reason: ,,, here, since he had not yet appeared in Beis-Din, he is not considered a bar Chiyuva with regard to K'nas ...

Source: ... as Tosfos explained at the end of 'ha'Meni'ach' (above, Daf 33a & there 33b, Tosfos DH 'Ika'), in the Sugya of 'Huchlat ha'Shor' (See HagahosTziyunim').

Clarification: In the Seifa we must say that the witnesses about whom the Beraisa says that they were Huzam were the first ones ...

Reason: ... since, because Eidim Zom'min are not obligated to pay unless the Din is concluded through them (See Hagahos ve'Tziyunim), it needs to say that we Pasken according to their words, and had they not come first, we would not have been able to Pasken like them.

Clarification (cont.): However in the Reisha, even though they came at the end, we rule based on their testimony.

Question: It is very surprising that the Gemara says 'even a little', seeing as they (the witnesses) are coming to help him completely (to receive the value of his eye).

Clarification: But if they are not sentenced to death, it is not considered a 'La'av she'Niten le'Azharas Misas Beis-Din'.

Question: Throughout Shas, it is implied that even if they warn him only for Malkos and not for Misah, in which case it will never come to a Chiyuv Misah (seeing as they did not warn him for Misah), it is nevertheless considered a 'La'av she'Niten le'Azharas Misas Beis-Din'?

Example #1: In Perek Mi she'Hichshich (Shabbos, Daf 154a & 154b, DH 'be'La'av') the Gemara states that the La'av of Mechamer is not subject to Malkos, because it is a 'La'av she'Niten le'Azharas Misas Beis-Din' with regard to other Melachos, even though, regarding Mechamer, there is no Chiyuv Malkos.

Example #2: And in the first Perek of Eruvin (Daf 17b) the Gemara says that 'Techumin is not subject to Malkos, seeing as it (the same Pasuk) is also warning for carrying ...

Example #2 (cont.): ... and even the opinion that disagrees (and holds that he is subject to Malkos), that is only because the Torah writes "Al Yeitzei" and not 'Al Yotzi'? - even though Techumin is not subject to Misah, even according to the opinion that holds that it is d'Oraysa?

Answer: The Ri answers that the La'av of Lo Sa'aneh is different, in that the Torah reveals that it is subject to Malkos, when it writes "ve'Hayah Im bin Hakos ha'Rasha", as the Gemara explains at the beginning of Makos (Daf 2b & 4a [See Tosfos there DH 've'Rabanan') ...

Answer (cont.): ... and now that the Torah has made the revelation, we establish it in a place where it cannot come to a Chiyuv Misah ...

Example #1: ... such as the case where they testify that he is a ben Gerushah or a ben Chalutzah ...

Example #2: ... or such as the case where witnesses who testified that a person is Chayav Misah are disproved, according to the opinion that exempts them from the death penalty even if they subsequently become Zom'min ...

Answer (concl.): But it is illogical to establish the Pasuk according to those who hold that they are subject to the death-penalty, seeing as it can lead to a Chyuv Misah.

Introduction to Question: And when the Gemara asks there why he is not Chayav (Malkos) on account of "ve'Lo Sa'aneh" ...

Introduction to Question (cont.): .... it means to ask why we need the Pasuk of "ve'Hayah Im bin Hakos ha'Rasha", and it replies 'Because it is a La'av she'Ein bo Ma'aseh' ...

Question: It could just as well have answered that it is because it is a 'La'av she'Niten le'Azharas Misas Beis-Din', which, under similar circumstances, is not generally subject to Malkos ...

Answer: ... only it wants to answer according to all opinions - even that of Rebbi Meir, who learns the warning of Eidim Zom'min from a different Pasuk, in the first Perek of Makos (Daf 4b).

Question: Now that it answers that it is a 'La'av she'Ein bo Ma'aseh', it does not go according to Rebbi Yehudah, who says there that a La'av she'Ein bo Ma'aseh is subject to Malkos?

Answer #1: The Gemara is more concerned to answer like Rebbi Meir, since he speaks there in the Seifa, in connection with 'Two hundred Zuz' and with 'Malkos', and it is implied there that by a ben Gerushsh uben Chalutzah he concedes (to the Chachamim).

Answer #2: Alternatively, that answer goes even according to Rebbi Yehudah ...

Reason: ... whose reason for saying 'La'av she'Ein bo Ma'aseh Lokin alav' is because he learns it from "Motzi-Shem-Ra and Eidim Zom'min via a Binyan Av ...

Reason (cont.): ... and had the Torah not revealed by Eidim Zom'min from the Pasuk "ve'Hayah Im bin Hakos ha'Rasha" (that he is subject to Malkos), we would have said in all cases, that 'La'av she'Ein bo Ma'aseh Ein Lokin alav'.

Question: How can the above answer go like Rebbi Meir, seeing as according to him, we know that Eidim Zom'min are subject to Malkos even without the Pasuk of "ve'Hayah Im bin Hakos ha'Rasha", since, even though there is no Ma'aseh attached to it, we learn it from Motzi-Shem-Ra ...

Precedent: ... in the same way as we learn in the first Perek of Makos (Ibid., Amud Beis) from Motzi-Shem-Ra that 'Eidim Zom'min are subject to both Malkos and Mamon?

Answer #1: We only learn from Motzi-Shem-Ra that 'Lokin u'Meshalmin' - since one can establish "K'dei Rish'aso" for a different D'rashah, as the the Gemara explains in 'Eilu Na'aros' (Kesuvos, Daf 32a [See Hagahos ve'Tziyunim]) ...

Answer #1 (cont.): ... but regarding La'av she'Ein bo Ma'aseh, which we learn in 'Eilu Hein ha'Lokin' (Makos, Daf 13b) from "La'asos" that we need a La'av she'Yesh bo Ma'aseh, we would not learn from Motzi-Shem-Ra, had the Torah not written it explicitly.

Answer #2: Alternatively, Motzi-Shem-Ra itself we learn from "ve'Hayah Im bin Hakos ha'Rasha" that it is it subject to Malkos

Source: ... as the Gemara states in Perek Na'arah (Kesuvos, Daf 46a), where it learns ' "ve'Yisru" from "ve'Yisru" '.

Introduction to Question: And when the Gemara in Makos (Daf 4b) asks 'What the Rabanan learn from "Lo Sa'aneh" and it answers that they need it for an Azharah for Eidim Zom'min ...

Introduction to Question (cont.): ... meaning that that is why, in the case of 'Me'idin al P'loni she'Chayav Malkos', he only receives one set of Malkos ...

Refuted Explanation: ... it does not mean that "Lo Sa'aneh" is not subject to Malkos, because it is a La'av she'Niten le'Azharas Misas Beis-Din' ...

Refutation #1: ... since in the case of 'Me'idin alav she'Hu ben Gerushah' (in Makos, 2a) the Rabanan hold that he does receive Malkos.

Refutation #2: ... and in the case of 'Me'idin she'Chayav li'Peloni Masayim Zuz' (Ibid. 4a), were it not for the Pasuk "K'dei Rish'aso", they would be subject to both Malkos and Mamon.

Authentic Explanation: What the Gemara therefore means is - that we need that Pasuk for a warning for Eidim Zom'min, since "Ka'asher Zamam" is only subject to Malkos where they testify on P'loni that he is Chayav Malkos, on account of "Lo Sa'aneh", because the Torah does not punish without a warning ...

Authentic Explanation (cont.): Consequently, on the La'av of "Lo Sa'aneh" they will not receive two sets of Malkos - 1. due to the false testimony that they presented, and 2. because of "Ka'asher Zamam", seeing as they are both one and the same La'av.

Conclusion: But in the case of 'Me'idin she'Chayav Masayim Zuz' (Ibid 4a), where, without the Pasuk of "Lo Sa'aneh" they are Chayav to pay because of "Ka'asher Zamam" - since Mamon does not require a warning ...

Conclusion (cont.): There for sure, without K'dei Rish'aso, they would receive Malkos because of "Lo Sa'aneh" ...

Conclusion (concl.): And similarly, in the case of "Meidin she'Hu ben Gerushah O ben Chalutzah' (they are subject to Malkos because of "Lo Sa'aneh").

Implied Question: According to the opinion in Sanhedrin (Daf 30a) that the testimony (of two witnesses) does not combine unless they testify simultaneously, when the Gemara says here that 'the second one combines with him' ...

Answer: ... it speaks when they testify together in Beis-Din.