More Discussions for this daf
1. Loaning for "ten years" 2. Eidim Zomemim That Are Mechayev A Kesuvah 3. Valuation of the Kesuvah according to Rebbi Nasan
4. Edim Zomemin not a Kenas? 5. Calculating risk factors in the Kesuvah 6. Edim who lied about the date on the Shtar
7. Edim Zomemim 8. Measures 9. Edim Zomemin

David Cohen asked:

The gemara states that Rabbi Yehudah was able to learn that "lav she'ein bo ma'aseh ein lokin alav" from eidim zomemin because he does NOT hold like Rabbi Akiva, that the payment of eidim zomemin is a kenas.

My question is, if it's not a kenas, then how else can we define it? It's certainly doesn't seem to be the return of money to its rightful owners, which would seem to leave no choice but to define it as a kenas. Is there any other option?

David Cohen, Philadelphia, Pennsylvania, United States

The Kollel replies:

You have defined "Mamon" as "the return of money to its rightful owners," which will apply only if the recipient is receiving the money to replace a loss that he is suffering, until reimbursement, at the hands of the payer. Therefore you assumed that the payment of Edim Zomemim must be categorized as a Kenas. However, Mamon may be defined as "reimbursement for causing a loss of money." According to this second definition, even if the defendant has already been reimbursed from an outside source, it is possible to refer to a second reimbursement that he receives from the guilty party as "Mamon."

This can be applied to Edim Zomemim as follows. When the Edus of the Zomemim was accepted, the defendant was held liable. Even though the defendant did not actually lose his money due to the reversal of the court ruling, nevertheless, as far as the Edim are concerned, we view it as if their testimony is irreversible and has caused a damage (since it brought about the court ruling). When the Beis Din later overturned their ruling, according to the opinion that Edim Zomemim are Mamon, it is as if the defendant "earned back his money" from an outside source.

Although this is a difficult concept, it may be easier than the alternative. In order to consider the testimony of Edim Zomemim worthy of any punishment, it must be accepted in court as valid testimony -- since the Azharah upon which the punishment of Edim Zomemim is based is Lo Sa'aneh b'Re'acha Ed Shaker." If their testimony were to be disqualified for any reason, it is not considered "Edus" and we cannot be Mechayev the Edim for "Ed Shaker," despite the fact that they "schemed" to cause a loss. We must consider their original Edus to be an accepted testimony, and if so it is possible to consider their monetary obligation to be "Mamon" and not "Kenas."

D. Zupnik

Paltiel Myers asks:

IY"H my son, Naftali Tzvi, is making a siyum on Meseches Maakos on 23 Adar II (this coming March 29), lechvod his hanachas teffilin and up-comming bar mitzvah on Issru chag of Pesach. We finished the mesechta last shabbos, and are now working on his "pshetle." One kashah that he asked that stuck out to me is very question posed in this thread. Namely, The gemarrah says that R' Akivahs shita of ". . .ayn meshalim al pi atzman," is dependant on the view that eidim zomemim is a knas. My son, Naftali tzvi asked "how could it be anything other than a knas?"

(a) The approach in this thread, I believe, is supported by the Tosfos on Daf Heh which says that the Bar plugta of R' Akiva holds that Eidim Zomemim is Mamon. However, I believe that the Penei Yehoshuah who says that R' Akiva's bar plugta holds that Eidim Zomemim is a Kapparah is inconsistent with this approach (this approach is also endorsed by the aruch l'ner).

(b) One further observation I have is that the Ritvah, that holds that the din of K'asheer Zamam, V'lo Kasher assah applies to Mamon (not like Tosfos in Bavah Kamah Heh, and the Rambam, but yes like the Raavad) would not seem to be able to hold that Kaasher zamam is mamon, beause the Mamon analysis proposed in this thread, which is the same analysis suggested by my son falls apart if there is a din of "vlo-kaasher assah." Thus, the Ritvah would seem to have to learn that the bar plugta of R' Akivah holds that eidim zomemim is not mamon.

(c) Any-who, my question to is if my son would like to bring geulah l'olam, can he say that he saw this mehalach supported by Rabbi Mordechai Kornfeld, or should he attribute it to D. Zupnik. If D. Zupnik, could we get a first name and some biographical information?

Thanks so much, and KOL TUV!!!

Warm regards, Paltiel Myers, Baltimore US

The Kollel replies:

(a) As you wrote, Tosfos 4b DH Savar writes that according to Rabanan, Edim Zomemim is Mamon (not Kaparah). This is implicit in the Gemara in Makos 2b which says that we find support for Rebbi Akiva (and refutation for the Rabanan) from the fact that the Edim "did no actual action, yet pay." If the Rabanan held Edim Zomemim is a Kaparah, the Kaparah would be equally appropriate even though they did no action (since they caused the defendant anguish).

In Bava Kama 5a the Gemara says clearly (in the first line of the page) that according to those who argue with Rebbi Akiva, Edim Zomemim is "Mamona" (see Rashi there, who probably means to say what we wrote above).

(According to what we have written, the amazement expressed in Sefer Kerem Yehoshua (Cohen) about this Sugya is misplaced.)

(b) Even if we hold that v'Lo Ka'asher Asah applies to Edim Zomemim of monetary disputes, I believe Rav Zupnik's approach remains consistent. As he writes, "the defendant did not actually lose his money due to the reversal of the court ruling, nevertheless, as far as the Edim are concerned, we view it as if their testimony is irreversible and has caused a damage". Although irreversible testimony may cause an obligation of Mamon (as opposed to Kenas), it is not considered "Ka'asher Asah" since the defendant never actually paid money to anyone based on the testimony of the false witnesses. "Ka'asher *Asah*" requires an active payment, not just a theoretical obligation.

(c) Ha'Gaon ha'Gadol Rav Dov Zupnik shlita from Yerushalayim was kind enough to answer questions for the Kollel for some 5 years. He is an accomplished Talmid Chacham and Magid Shiur from the Mir Yeshiva, and has published numerous works, among them the book "Kesav Yad" on Maseches Kesuvos. He is presently working on preparing a new annotated edition of the Or Zaru'a among other things.

Best wishes,

Mordecai Kornfeld

Avraham Walfish comments:

R. Elhanan Wasserman explains the opinion that the payment of Eidim Zomemim is Mamon by suggesting that the nature of the penalty of Eidim Zomemim is that the false witnesses replace the defendant in suffering the penalty - a kind of "rebound effect". Once a beit din has rendered a judgment of payment against the defendant, even if it was originally a kenas, the pesak beit din renders it as mamon. Hence we do not regard their payment as a new "kenas", but rather as paying the mamon that the defendant was supposed to pay.

Avie Walfish

Rabbi Paltiel Myers comments:

I understand your point regarding the ptur of kasher assah.

I actually wanted to suggest a mehalech in ibiarta hara mikibecha. Stated cryptycally, my belief is that the "victim" in the parsha of eidim zomemin is not the nidon, but Beis Din itself. If kaasher zamam is meted out on the zomemim in a case of kaasher assah, the negative reprecussions for beis din are far worse than those if beis din lets sleeping dogs lie, so to speak . . . . I think this approach draws some support from the abarbanel, and meiri . . . .

Under this approach, however, and under your approach in the link you sent, Kaasher Zamam is decidedly not Mamonesque, but much more of a Knas.

Paltiel Myers, Baltimore MD