This is my understanding of the relevant Mepharshim that necessitate my question most likely I do not understand one or more of them correctly:
Tosofos raises several differences between Rashi's understanding of Ravina's KvC and Bar Pada's. The Ritva here says the reason the differences Tosofos raises here are significant is because they show that Ravina's KVC (according to Rashi's understanding of it) is impossible to be true. Therefore, Ravina would be learning from an Ee ef shar onto an Efsher, which is not allowed. However, the new understanding of Ravina's KvC which Tosofos offers seems also impossible to be true (i.e. if the Halacha actually is that Edee Zomemei Skelah (EZS) get Skeliah, then it is still impossible for Ravina's KvC to not be true and we would still be learning-out from an impossible to a possible)! It seems in response to this question, the Maharsha here wrote that Tosofos' answer works because Ravina wasn't positive that EZS receive Skeliah. The Maharsha says that according to Tos, Ravina was only pointing out that if it were in fact true that EZS don't get Skeelah, then our Mishnah would have told us that (i.e. it is still possible that EZS get skeilah, just unlikely).
My question: However, this raises the following at least ostensible absurdity: If it had been the case that EZS definitely don't OR definitely do get Skeila, then Bar Pada's KVC would have worked! It is only because were not sure that Bar Pada's KVC doesn't work! How could this be?!
Thank you.
David Shamsi, Philadelphia, USA
Bar Pada said that if a Cohen who marries a Gerushah who was Mechalel his children does not become a Chalal, then an Ed Zomem, who did not succeed in being Mechalel anyone, certainly does not become a Chalal.
Rashi explains that Ravina said that accordingly we should also say that if Edim who succeeded in having a person wrongly stoned, do not get stoned, Edim who only attempted to have someone stoned, should certainly not get stoned.
Tosfos asks three questions on Rashi.
(1) Firstly, why does the Gemara use the expression of Saklu (stoned) and not the more common and general term of Hargu (killed).
(2) Secondly, Ravina's Kal v'Chomer is specifically excluded by the Torah so we cannot learn from there to other places where there is no specific exclusion (Miyut).
(3) Thirdly, we cannot learn from Ravina's Kal v'Chomer not to make Bar Pada's Kal v'Chomer, because Bar Pada's Kal v'Chomer is a contradiction to the Parshah of Edim Zomemim. In other words, were we to make Ravina's Kal v'Chomer, we would never have a case of Eidim Zomemim, so the whole Parsha of Edim Zomemim teaches us that the Torah does not want us to make this Kal v'Chomer. Bar Pada's Kal v'Chomer, however, does not affect the whole Parshah, and is therefore acceptable. This last question is what the Ritva refers to as Efshar mi'She'i Efshar.
Tosfos explains in the name of Rabeinu Tam, that the Kal v'Chomer of Ravina was as follows:
If someone physically stoned someone else, he himself is not stoned (he gets Sayef). If so, someone who planned to stone but did not stone, certainly does not get stoned. Tosfos says that this Kal v'Chomer is Efshar, in other words, not a contradiction to the whole Parshah of Edim Zomemim, because we still have cases where we can do Hazamah, for example, other types of Misas Beis Din.
The Maharsha was bothered by this Lashon of Tosfos which seems to imply that we can be Mekayeim Hazamah in all other types of Misas Beis Din. This is in fact not true, because Ravina's Kal v'Chomer rules out Hazamah in all Misas Beis Din except Sayef, where the murderer is killed by the same method as he used to murder.
I hope this helps you to clarify your problems.
Dov Freedman
"In other words, were we to make Ravina's Kal v'Chomer, we would never have a case of Eidim Zomemim, so the whole Parsha of Edim Zomemim teaches us that theTorah does not want us to make this Kal v'Chomer...This last question is what the Ritva refers to as Efshar mi'She'i Efshar."
If we can't learn out from Ravina's KvC according to Rashi's undertanding of it because it is impossible to be true (according to Ritva), then we also shouldn't learn out from Ravina's KvC according to Tos. understanding of it since it is also impossible to be true, i.e. it is impossible for Edei Skeela to not get Skeela. This is the problem.
Thanks
David Shamsi
Whereas Rashi's Kal v'Chomer rules out Hazamah in every type of testimony, the Kal v'Chomer of Tosfos leaves open the possibility of Hazamah in certain instances, for example when the Eidim said that the accused killed somebody by beheading.
Dov Freedman