WHEN WE CANNOT PUNISH KA'ASHER ZAMAM
(Mishnah): How are witnesses (punished when) found to be Zomemim (i.e. latter witnesses (Mezimim) testify 'at the time the first witnesses claimed to see the testimony, they were with us elsewhere')? (This question will be explained.)
If two witnesses testify that Ploni (a Kohen) is the son of a Gerushah (divorcee) or Chalutzah (which means that he is a Chalal (a disqualified Kohen), and they were Huzmu), the witness do not become Chalalim. Rather, each receives 40 lashes. (Whenever we say 40 lashes, it is really 39.)
If two witnesses testify that Ploni must be exiled (stay in an Ir Milkat (refuge city, i.e. Galus) until the Kohen Gadol dies, for killing someone b'Shogeg), and they were Huzmu, we do not exile the witnesses. Rather, each receives 40 lashes.
(Gemara) Question #1: The Mishnah (discusses when we do not punish the witnesses "Ka'asher Zamam", i.e. with the same sentence they schemed to inflict on Ploni. It) should say 'how are witnesses not (punished when) found to be Zomemim?
Question #2: A later Mishnah explicitly teaches how witnesses become Zomemim!
(Mishnah): If the latter witnesses said 'How can you testify about this? That day, you were with us in a different place', the former witnesses are Zomemim.
Answer: Our Mishnah is a continuation of the last Mishnah of Sanhedrin (according to the Bavli, it is the last Mishnah of Perek 10), which says 'Edim Zomemim always receive the Misah they plotted to impose on the Nidon (the one being judged), except when they falsely testified about a Bas Kohen and her adulterer' (they are choked, even though she is burned);
Note: Normally, we say that we do not know in which order the Masechtos were taught. Maharatz Chayos here and Noda bi'Yehudah (2 YD 79) say that Sanhedrin, Makos and Shevu'os are an exception; they were taught in this order. If we say that Makos is part of Sanhedrin, and the three 'Bavos' are all one Masechta (Bava Kama 102a), we can explain that [after they were taught,] the Masechtos within each Seder were ordered in decreasing number of Perakim. Daf Al ha'Daf (Kidushin 2a, citing Mayanah Shel Mishnah) says so about Seder Nashim. We can say so for all the Sedarim with minor adjustments, e.g. Rosh Hashanah is after Beitzah, like in the Mishnayos. (PF)
There are other Edim Zomemim who are not punished even close to Ka'asher Zamam, rather, they just receive 40 lashes;
If witnesses testify that Ploni is a Ben Gerushah or Ben Chalutzah, we do not say that the witnesses become Chalalim. Rather, each receives 40 lashes.
Question: What is the source of this?
Answer #1 (R. Yehoshua ben Levi): "Va'Asisem Lo Ka'asher Zamam" - to him, and not to his descendants. (If the witness would become a Chalal, this would disqualify also his descendants.)
Question: We should say that he becomes a Chalal, but his children are Kesherim!
Answer: This is not "Ka'asher Zamam" (he plotted to disqualify Ploni and Ploni's descendants).
Answer #2 (Bar Pada): A Kal va'Chomer teaches this. A Kohen who is Mechalel (he has Bi'ah with a Gerushah, which makes her a Chalalah) does not become a Chalal. One (i.e. an Ed Zomem) who tried to be Mechalel but failed, and all the more so he does not become a Chalal!
Rejection (Ravina): If so, always (Rashi; Tosfos - often) we cannot kill Edim Zomemim!
Version #1 - Rashi: Edim Zomemim who stoned Ploni (through their testimony) are not stoned (they are exempt). All the more so, Edim Zomemim who tried to stone but failed (they were Huzmu before Ploni was executed) should not be stoned!
Version #2 - Tosfos: A murderer who stoned is not stoned (he is beheaded, which is more lenient). All the more so, Edim Zomemim who tried to stone but failed. should not be stoned!
We must rely on Answer #1.
(Mishnah): If two witnesses testify that Ploni must be exiled...
Question: What is the source of this?
Answer #1 (Reish Lakish): "Hu (one who killed b'Shogeg) Yanus", but not Edim Zomemim.
Answer #2 (R. Yochanan): A Kal va'Chomer teaches this. A murderer, who did an action, is not exiled if he was Mezid (even if he is not killed). Edim Zomemim did not do an action. All the more so they are not exiled even though they were Mezidim!
Objection: There, the Kal va'Chomer does not apply due to the severity of the Aveirah!
Because a murderer did an action, he is not exiled if he was Mezid, for he is not worthy of Kaparah (atonement). Edim Zomemim did not do an action, so even though they were Mezidim they should be exiled, in order to get Kaparah!
We must rely on Reish Lakish's answer.
EDIM ZOMEMIM ARE LASHED
Question (Ula): Where does the Torah hint about Zomemim witnesses?
Objection: The Torah explicitly discusses them - "Ka'asher Zamam"!
Correction: Rather, where does the Torah hint that Zomemim witnesses are lashed (when we cannot punish them like they plotted, e.g. if they testified that Ploni is a Chalal)?
Answer: "V'Hitzdiku Es ha'Tzadik v'Hirshi'u Es h'aRasha...";
Question: Acquitting the innocent is not a condition for (lashing the Rasha, the continuation of the verse) "v'Hayah Im Bin Hakos ha'Rasha"!
Answer: Rather, the case is that (Zomemim) witnesses caused a Tzadik to be convicted, and other witnesses (Mezimim) showed that he was truly a Tzadik and that the first witnesses were Resha'im. "V'Hayah Im Bin Hakos ha'Rasha" teaches that he is lashed.
Question: We should say that he is lashed due to "Lo Sa'aneh" (do not testify falsely)?
Answer: That is a Lav without an action. One is not lashed for such a Lav.
SPECIAL LAWS OF EDIM ZOMEMIM
(Beraisa): These four laws apply to an Ed Zomem:
He cannot become a Ben Gerushah or Ben Chalutzah;
He cannot be exiled;
He does not pay Kofer (ransom, e.g. he testified that Ploni is Chayav Kofer because his Mu'ad animal killed someone);
He is not sold to be a slave.
R. Akiva adds, he need not pay based on his own admission.
Above, we gave the source for the first two laws;
The Tana exempts from Kofer. He holds that Kofer is a Kaparah (for one who did not guard his animal. This does not apply to Edim Zomemim, for their animal did not kill);
Question: Which Tana holds that Kofer is a Kaparah?
Answer #1 (Rav Chisda): It is R. Yishmael, son of R. Yochanan ben Brokah.
(Beraisa): "V'Nosan Pidyon Nafsho" (the animal's owner pays redemption of his soul)", i.e. the value of the victim;
R. Yishmael, son of R. Yochanan ben Brokah says, he pays his own value.
Suggestion: Chachamim (the first Tana) hold that Kofer is money (compensation for the damage). R. Yishmael holds that it is Kaparah (to atone for the owner's negligence).
Rejection (and Answer #2 - Rav Papa): All agree that Kofer is a Kaparah. They argue about whose value is paid.
Question: What is Chachamim's reason?
Answer: It says 'Hashasah' (assessing) regarding compensation for a miscarriage caused by striking a woman, and also regarding Kofer. Just like there we evaluate the victim's value, also here.
R. Yishmael disagrees, for it says "v'Nosan Pidyon Nafsho" (he redeems his own soul)!
Chachamim agree that he redeems his own soul, but to do so he pays the victim's value (we learn from 'Hashasah').
(Beraisa): Edim Zomemim are not sold to be slaves.
(Rav Hamnuna): This is only if (they testified that Ploni stole, and) Ploni has money (to pay for his theft, so he would not have been sold). If Ploni has no money, even if they have money, they are sold.
Objection: The Zomemim should be able to say 'if Ploni had money, he would not have been sold. Likewise, since we have money, we are not sold!'
Correction (Rav Hamnuna): Rather, if Ploni or the witnesses have money, the witnesses are not sold, but if neither of them have money, they are sold.
Rejection (Rava): "V'Nimkar bi'Gnevaso (he is sold for his theft)", but not for his false testimony.
(Beraisa - R. Akiva): He need not pay based on his own admission.
Question: What is R. Akiva's reason?
Answer: He holds that "Ka'asher Zamam" is a Kenas (fine). One does not pay Kenas based on his own admission.
Support #1 (Rabah): It must be a Kenas. They did not do an action, yet they are killed.
Support #2 (Rav Nachman): It must be a Kenas. The Nidon did not lose his money, yet they pay.