Question: Why are they lashed for testimony about a Ben Gerushah? The testimony is Iy Efshar Lehazimah (we cannot fulfill Ka'asher Zamam. Such testimony is invalid!)

Answer: We consider testimony Iy Efshar Lehazimah only when they testify about a Tereifah [that he is Chayav Misah]. We cannot fulfill [Ka'asher Zamam] at all, not through Misah, and not through lashes, for they sought to kill a dead (mortally injured) man. (This is unlike killing a healthy person. Lashes are not considered Ka'asher Zamam regarding Misah. Chachmas Mano'ach says that lashes are harsher than killing a Tereifah.)

However, here Hazamah (Ka'asher Zamam) is fulfilled through lashes.

Question: Since he needs Tachas for this Drashah, what is his source for Meitav (if he pays with land, he must give highest quality land? We explained this above, 33b DH Ela.)

Answer: He learns from Nesinah or Kesef.

Inference: This connotes that Rava holds like Ula, for R. Yochanan himself would have explained like Ula, if not because he needs the verse like Abaye taught.

Question (Rashba): In Bava Metzi'a (91a), it explicitly connotes that he holds like R. Yochanan regarding one who muzzles [another's] cow and threshes with it. [A Beraisa says that] he is lashed (for muzzling) and pays money (for depriving the animal from what it was entitled to eat);

Abaye establishes it like R. Meir [who says that one pays and is lashed];

Rava says that it is even like Rabanan, for the Torah disqualifies an Esnan (a harlot's hire, from being a Korban), even if a man had Bi'ah with his mother, i.e. and he pays to fulfill his obligation b'Yedei Shamayim. (Even though he is Chayav Misah for Bi'ah with her, so Beis Din cannot make him pay, if he pays, it is called an Esnan, for he truly owes her.)

Inference: The law [in Beis Din] is that he is lashed, and does not pay money. (Rava learns from Esnan that he should pay, for he is liable b'Yedei Shamayim. If the law were that he pays money, and he is not lashed, we could not learn from Esnan that he should be lashed to fulfill a Chiyuv b'Yedei Shamayim!)

Answer: According to what I explained above, that in the conclusion, Ula holds only regarding these three that he pays money, and he is not lashed, this is fine;

Normally, he holds like R. Yochanan, that he is lashed and does not pay money, like R. Yochanan expounds (32b, that) adjacent to ["Kedei Rish'aso"] it says "Arba'im Yakenu."

Question: He should derive [that they are not lashed] because it is Hasra'as Safek. [When we warn,] we do not know that whether or not they testify falsely!

Answer: Hasra'as Safek is only in a case like "do not leave over [Korban Pesach until morning]." Even the one being warned is unsure. He thinks that there is still time in the day [to finish eating it];

However, here the ones being warned know that they testify Sheker.

Question: How could they retract? The warning takes longer than Kedei Dibur, which is the time to greet someone (i.e. say three or four words)!

Answer: As long as they are engaged in the matter, everything is considered Toch Kedei Dibur.

Support: We say in Makos (6a) that even if 100 testify, each Toch Kedei Dibur of the previous, they are all considered Toch Kedei Dibur of the first;

[Therefore, they are considered one set of witnesses,] and if one of them is found to be a relative or Pasul [for testimony], their testimony is Batel.

Question: Why does he pay money? Even if there was no fatality, since he intended to kill him, he is a Rodef (pursuer). He is Chayav Misah, and Kam Lei bid'Rabah Minei!

Answer: The case is, [onlookers] could save him (prevent him from killing) through (maiming) one of his limbs. (Therefore, he was not Chayav Misah.)

Support: We say so in Sanhedrin (74a).

Suggestion: This is because he accepted warning for killing. He consents to be killed on condition that he kill his enemy. He says (like Shimshon, who collapsed the building and said) "I will die with Plishtim" (he gave up his life to kill them);

However, he does not consent to strike his colleague on condition that they lash him.

Rejection: A Mishnah in Sanhedrin (79b) teaches that if people sentenced to receive different Misos became mixed, they are given the more lenient Misah;

The Gemara (80b) infers that warning for a severe Misah includes warning for lighter Misos;

There it is obvious that since he was warned for stoning, and he accepted it, all the more so had they warned him that he will be choked for the same matter, he would have accepted it;

Even so, the Gemara wanted to say that warning for a severe matter is not warning for a lighter matter!

Explanation: Rather, it is a Gezeras ha'Kasuv that he must permit himself to (accept) that Misah [that he will receive], whether it is lenient or stringent.

Observation: We could have answered that presumably, Misah is more stringent, for it is given to [sinners] in an Ir ha'Nidachas, like it says in Sanhedrin (50a).

Question: What is the source for this? It says in Berachos (61b) that when they took R. Akiva out [to kill him], he said "my entire life, I was pained about this verse. When will it come to my hand and I will fulfill it - "b'Chol Nafshecha" (to serve Hash-m through forfeiting your life)!

Inference: B'Chol Nafshecha applies even if one is afflicted greatly, like R. Akiva. They were combing his flesh [off him] with iron combs. All the more so one must [endure] lashes!

Answer (R. Tam): The image (that Nebuchadnetzar commanded people to bow to) was not really idolatry. Rather, it was made for the honor of the king;

Even so, there was Kidush Hash-m, therefore [Chananyah, Misha'el and Azaryah] submitted to be killed.

Support: It says "we will not serve your gods, and we will not bow to the image you erected." This connotes that he did not consider the image to be a deity.

Disclaimer: However, "they served the image" connotes that it was idolatry, for it says "served."

Question (Ri): How can Galus apply if he died after they incarcerated [the one who struck him] two or three days?

We say in Gitin (70b) "if one slaughtered [b'Shogeg] both Simanim (in a person, i.e. the windpipe and foodpipe) or their majority, he is not exiled. We are concerned lest wind confounded him [and caused his death]";

This is because regarding Galus, we find that many matters are exempt, e.g. if he killed on the way up, and regarding Misah (for Mezid), there is no distinction between ascent and descent;

Similarly, regarding exile we require that he die immediately. It says "va'Yipol Alav va'Yamos", which connotes immediately.

Implied question: Also regarding Misah, it says "Makeh Ish va'Mes"!

Answer #1: [Galus, if he died after two or three days] applies in a marble house. We are not concerned lest wind confounded him, like it says there;

Answer #2: Only when one slaughtered the majority of both Simanim we are concerned lest wind confounded him, for wind can easily confound him;

Wind is not so harmful to other wounds. They can guard well from confounding of wind, through wrapping something on the wound.

Question: How can we establish the verse to discuss Shogeg? The verse mentions Sheves (compensation for inability to work until he recovers) - "Rak Shivto Yiten...", and one who was Shogeg does not pay Sheves!

We say so in Bava Kama (26b). We learn from "Patza Tachas Patza" to make Shogeg like Mezid to obligate Nezek (decrease in slave value), but not the [other] four payments!

Answer #1: The case is, he gave an extra lash [b'Shogeg]. It says in Bava Kama (32b) that he is exiled (if the man died), and if he did not die, the one who lashed him pays the four payments. This is unlike other cases of Shogeg.

Answer #2: The case is, he entered a carpenter's shop with permission. It is proven there that according to Rav Papa, exile and the four payments apply.

Answer #3: He fell from the roof in a common wind. He is liable to pay the four payments, like it says in Bava Kama (27a), and presumably, if the victim died, he is exiled.

Answer #4: He was Shogeg regarding killing him, but intended to wound him.

Question: We can ask from here against Reish Lakish, who says in Bava Kama (77b) that whenever there is no [liability for a] sale, there is no [liability for] Shechitah. A Shor ha'Niskal cannot be sold!

Answer #1: There, [he discusses] Kodshim, which are more stringent. They cannot be sold at all;

A Shor ha'Niskal, if one sold it to a Nochri, it does not forbid the money he paid for it.

Answer #2: According to R. Tam, who says that a Shor ha'Niskal is not forbidden while it is alive, this is fine (it can be sold absolutely).

Implied question: Here, he is not obligated even to be Yotzei Yedei Shomayim!

Only regarding Mamon, Rava said in Bava Metzi'a (91a) that the Torah disqualifies an Esnan, even if one had Bi'ah with his mother, he must pay be Yotzei Yedei Shamayim;

However, one is obligated a fine only through Beis Din, like we say "Asher Yarshi'un Elohim" excludes one who incriminates himself!

Answer: Even so, it is fine what we say here. Since it was proper that he be obligated, if not that he were Chayav Misah, he is liable also for money through a Shali'ach, since he is not Chayav Misah.