The Mefarshim write a lot about this and I will start off, bs'd, with a source from Bava Kama 74b, where Rabbi Elazar said òãéí ùäåëçùå áðôù ìå÷éï "Eidim She-Hookcheshu beNefesh Lokin"; witnesses who were contradicted on a capital case receive Malkus for their false testimony. The Gemara (2 lines before the Mishnah on 74b) asks that if the 2 witnesses on the capital case, were contradicted by 2 other witnesss, why should the first 2 receive Malkus; it is 2 against 2 so why should we believe the second set of witnesses any more than the first? The Gemara answers that the sceanario referred to is where the person that the first 2 witnesses said had been killed, walked alive into the room in front of us.

Rashi DH deAmar writes that according to R. Elazar the witnesses were contradicted, but there was not "Hazamah"; they were not proved to be Eidim Zomemim. In DH Lokin, Rashi writes that they receive Malkus because of Lo Sa'aneh.

So we have a source that Malkus is received for Lo Sa'aneh even if there is no connection to Eidim Zomemim.

Chanukah Sameach and Chodesh Tov.

Dovid Bloom

Follow-up reply:-

There is a strong question on the above from Gemara Makos 5b. Mishnah Makos 5b states that Eidim Zomemim can only be killed if there was Gmar Din based on what they testified. The Gemara 5b asks çééáé îì÷åú îðéï; Chayvei Malkus Minayin; How do we know that Eidim Zomemim only receive Malkus if there was a Gmar Din based on their testimony? Rashi DH Chayvei explains "if the witnesses testified that someone is liable for Malkus and they were proved to be Zomemim, how do we know that they do not receive Malkus unless there was a Gmar Din?". The Gemara cites a Gezera Shava which teaches they do not receive Malkus without Gmar Din.

So there is a contradiction between Bava Kama 74b and Makos 5b. Bava Kama 74b states that they receive Malkus for Lo Sa'eneh without any connection to Eidim Zoememim, whilst Makos 5b states that it is only because of the Gmar Din of Eidim Zomemim that they get Malkus through Lo Sa'aneh?!

Or Sameach, in chapter 13 of Hilchos Eidus; in a note at the bottom of the page; cites the sefer Pesach HaBayis #28, by Rav Avraham Tiktin zt'l, page 72 column 3 DH u'veGoof who reconciles the 2 Sugyos by saying that Bava Kama 74b refers to a scenario where the 2 false witnesses received Hasro'oh; they were warned in advance that if they are lying they will receive Malkus; whilst Makos 5b refers to a scenario where they received no Hasro'oh. He explains this according to Kesubos 33a which teaches that Eidim Zomemim do not require Hasro'oh because they wanted to kill somebody without Hasro'oh. Since they invented a story, they certainly did not warn the person they were trying to kill. Therefore just as Eidim Zomemim were trying to kill without Hasro'oh it follows that they can be killed without Hasro'oh. But Bava Kama 74b is not referring to Hazamah; it is referring to Hakchosha. Therefore Hasro'oh is required, since Kesubos 33a only states that Eidim Zomemim do not require Hasro'oh, but Eidim with Hakchoshah do require Hasro'oh.

So we can now say that Lo Sa'aneh, without Gmar Din, is only punishable with Malkus if they were warned not to lie.

Dovid Bloom

3) I found, bs'd, that the Shitah Mekubetzes contradicts what I wrote in my first reply. The Shitah Mekubetzes (Bava Kama 74b, DH Edim) writes that the Gemara there (that I cited above) about the witnesses who were contradicted on a capital case is referring specifically to a case where there was a Gmar Din based on what they said. He writes that this is because ????? ????? ???? -- "Hakchashah Techilas Hazamah."

He is referring to the Sugya in Bava Kama 73b where there is a dispute between Rava and Abaye. Rava is discussing a scenario where two witnesses say that A killed B, and two other witnesses contradict them. At this stage, we cannot do anything to the first two witnesses since we have no reason to say that the second set are believed more than the first. However, afterwards, a third set of two witnesses come and say that at the time of the alleged murder, the first set were with us in a different place. Rava says that the first set are liable for the capital penalty because there was Hazamah. The Hakchashah caused by the second set is considered as the beginning of the Hazamah done by the third set, and the Hazamah by the third set completes the discrediting of the first set.

(Abaye disagrees with Rabah and says that if the first two witnesses were contradicted by the second two witnesses, the third set no longer can do Hazamah. Abaye's reasoning seems to be apparent in Rashi 73b, DH Sh"M, who is explaining Rava and writes that if not for the fact that we say that Hakchasha is the beginning of Hazamah, since the first testimony has been annuled, how could there be further Hazamah? This suggests that Abaye, who disagrees with Rava, maintains that the first testimony indeed has been annulled, which means that when the second set contradicts the first set, Abaye considers it as if the first set said nothing, so it follows that there cannot be a later Hazamah of their testimony.)

Now, to return to the Shitah Mekubetzes that I cited at the beginning of this reply: He writes that Rebbi Elazar, who said on 74b that the witnessses who were contradicted on a capital case get Malkus, refers specifically to where there was a Gmar Din, since "Hakchashah Techilas Hazamah," so the witnesses are neutralized through Hazamah. Hazamah means that they were Edim Zomemim, so it follows that there must be a Gmar Din for them to be Edim Zomemim and receive Malkus.

Dovid Bloom

4) The conclusion of the Afikei Yam (40:5):

The Afikei Yam (Rav Yechiel Michal Rabinowitz zt'l) summarizes, based on the above Shitah Mekubetzes, that our question depends on the dispute about whether or not Hakchashah is the beginning of Hazamah. According to the opinion that Hakchashah is the beginning of Hazamah (Rava in Bava Kama 73b), it has a Din of Hazamah and Malkus will not be administered before the Gmar Din. According to the opinion that Hakchashah is not the beginning of Hazamah (the opinion of Abaye in Bava Kama, end of 73b), Malkus can be administered before the Gmar Din.

Dovid Bloom

Dovid Bloom