Question: Since the witnesses in the four cases listed in the Mishnah do not receive the punishment that they attempted to mete out to the defendant, why is this then not a case of 'Eidus she'I Atah Yachol Lehazimah' (witnesses who cannot become Zom'min), whose testimony is not acceptable (as we have learned in Pesachim).

Answer: The fact that the witnesses receive Malkos is sufficient to render it 'Eidus she'Atah Yachol Lehazimah', despite the fact that they do not receive the same punishment as the defendant.

Question: In that case, why does the Gemara in Sanhedrin rule, that in a case where witnesses testify against a Na'arah ha'Merasah (a betrothed girl), she is not put to death, because the witnesses, who can say that they only came to forbid her on the Chasan, are not put to death either ('Eidus she'I Atah Yachol Lehazimah'), seeing as there too, they are subject to Malkos?

Answer #1: The case there is different inasmuch as the Malkos that the witnesses are subject to cannot be considered "Ka'asher Zamam" vis-a-vis the Misah that their testimony would have brought on the girl (since the Pasuk says "a life for a life"), as opposed to the current case, where the Malkos that they receive fits with their testimony of 'ben Gerushah ... ', which is Chayvei La'avin.

Answer #2: Because, bearing in mind that we learn 'Eidus she'Atah Yachol Leha'azimah' from "Ka'asher Zamam", and "Ka'asher Zamam" is not written in connection with a Ben Gerushah in any possible way, as is evident in the Gemara, as opposed to 'Na'arah ha'Me'urasah, where the witnesses will be put to death, in the event that they warned the girl that she will.

Question: Why does the Tana present the case of 'Ish P'loni she'Hu ben Gerushah ... '. which is confined to Kohanim, rather than 'Ish P'loni she'Hu Mamzer, which extends to Yisre'elim as well?

Answer: Tosfos refers to the Gemara, which establishes the case with regard to Zomemei bas Kohen, as we shall see shortly (so the Tana deliberately presents a case to do with the Kehunah.

Question: Based on the Gemara in Bava Metzia, why is the defendant Chayav Galus? Why can he not claim that he killed the victim on purpose (like the case of 'Achalta Cheilev', who is Patur from bringing a Chatas for that reason)?

Answer: Because the Tana here is speaking where people saw the ax fly off the handle, which is a clear-cut case of Shogeg.

Question: The Mishnah in the third Perek exempts a Sonei (a hater) from going into Galus (because we suspect that he killed be'Meizid). Presuming that the Seifa (there) is speaking in the same case as the Reisha, on what grounds will we assume that?

Answer #1: Because a hater is dfferent, and even in such a case, when it comes to a hater, we suspect that he killed the victim on purpose.

Answer #2: We now retract from the original answer, and establish that the Tana is speaking in a regular case (where it is not at all evident that it was an accident (which explains a Sonei nicely).

Implied question: Then why in the Reisha, does the defendant go into Galus? ...

Answer: ... Because the Tana is speaking where he remained silent when the witnesses testified that he killed be'Shogeg.

Explanation: If the defendant would counter 'Lo Haragtiv' (that he did not kill the defendant), then we would interpret his words to mean 'Lo Haragti Shogeg, Ela Meizid' (in which case, he would be Patur from Galus). But since he was silent, we apply the principle 'Shesikah ke'Hoda'ah' (silence is construed as admission), and he is Chayav Galus.

Clarification: Rashi explains that the Zom'min can expect the same punishment that they tried to mete out to the defendant, and they have no way out. Whereas in Kesuvos, he explains that Beis-Din are obligated to punish the Zom'min on the same day (and not leave it overnight).

Question: Rashi is difficult in that both explanations are obvious.

Alternative Explanation: We therefore accept the explanation of the Ri, who explains that although, initially, we try to give the Zom'min the same punishment as they tried to mete out to the defendant, if this is not possible, then Beis-Din punish in any way that they can.

Proof: ... like the Beraisa, cited in Bava Metzi'a, which learns from the double expression "Hakeh Sakeh" (in connection with the residents of an Ir ha'Nidachas, who are initially killed by the sword).

Question #1: There is a Kashya on the Ri however, from the Gemara in Sanhedrin, which, based on the principle 'Sh'nei Kesuvim ha'Ba'in ke'Echad, Ein Melamdin', rules that a Rotze'ach (a murderer) and a Go'el ha'Dam (the next of kin who avenges the murder of his relative) are the only two cases who may be punished by other means, if necessary. In that case, how can we apply it with regard to Eidim Zom'min and Ir ha'Nidachas?

Question #2: Similarly, when the Tosefta in Sanhedrin, based on the Pasuk "u'Vi'arta ha'Ra mi'Kirbecha" rules that if one is unable to kill the Zom'min with the prescribed death, then one kills them in any way that one can, the question arises as to why we do not learn the opposite from Rotze'ach and Go'el ha'Dam?

Answer: The unique Din by a Rotze'ach and a Go'el ha'Dam applies to death-sentences other than 'the four Misos Beis-Din' (stoning, burning, killing by the sword and asphyxiation), but not to interchanging one of the four with the other, which is what we are currently discussing.

Clarification: We preclude 'Bo'alah' from the D'rashah "Hi", 've'Lo Bo'alah'; and 'Zomemei bas Kohen' from that of "le'Achiv", 've'Lo la'Achoso'.

Question: Why do we need "le'Achiv", to preclude Zomemei bas Kohen from being sentenced to death? Why can we not learn it from the D'rashah in Sanhedrin "es Avihah Hi Mechaleles", from which we Darshen "Hi", ve'Lo Bo'alah, "Hi", 've'Lo Zomemehah'?

Answer: If not for "le'Achiv", we would have precluded the Bo'el from S'reifah from "Hi", but not the Zom'min, who after all, came to have her burned. And it is only because the Torah wrote "le'Achiv", that we also preclude them from "Hi".

Question: Why do we need the D'rashah of "le'Achiv" 've'Lo la'Achoso'. Why can we not learn it from the word "Hi" (in the Pasuk "es Avihah Hi Mechaleles") - like we learn in Sanhedrin "Hi", 've'Lo Bo'alah', "Hi ve'Lo Zomemehah'?

Answer: If not for "Hi" we would have confined the preclusion of Zom'min from "le'Achiv" to there where the witnesses also come to sentence the Bo'el, but where they do not (if he is a Katan between nine and thirteen, or where they do not recognize him) then they are not precluded, and will receive the same punishment as the woman. Comes "Hi" and teaches us that they are precluded under all circumstances.

The Ri's Doubt: Initially, the Ri was in two minds about the latter ruling, but he ultimately resolved his doubt from the Gemara in Sanhedrin (46a), which discusses 'one death that is akin to two deaths', such as a. a bas Kohen and her Bo'el, and b. a bas Kohen and her Zomemei Zom'min.

Question: Why does the Gemara need to come on to Zomemei Zom'min (to find a case of two deaths), seeing as there are already two deaths on account of the woman and the Bo'el?

Answer: The Gemara must therefore be speaking about a Bo'el who is not included in the testimony (as we explained), yet the Zomemei Zom'min receive Chenek, because that is what they wanted the Zom'min to receive (even though the Bo'el is not Chayav Misah.

Explanation: Rashi explains the Gemara's Kashya as 'Why does it ask 'Ha Keitzad?', seeing as the Mishnah later will explain it?

Alternative explanation: ... and even if you will explain the Lashon of the Mishnah 'Keitzad ha'Eidim Na'asim Zom'min') as a Lashon of Hazamah, it is nevertheless evident from the Mishnah later, that the Tana is referring to the Din of Hazamah, and not just how they become Zom'min. In that case, the second Kashya is merely coming to reinforce the first one.

Question: Where the witnesses testify that someone is a Mitzri Sheini, why do we not disqualify them, seeing as they are not coming to disqualify the man's children?

Answer: In any event, we cannot disqualify them, seeing as they are also coming to disqualify his wife, and we have learned "va'Asisem Lo Ka'asher Zamam" - "Lo", 've'Lo le'Ishto'.

Explanation: Rashi explains that if, where the Beis-Din have already carried out the death sentence on the accused, the Eidim Zom'min are not killed, how much more so there where they have not!

Question #1: The Gemara ought rather to have said 'Hargu, ve'Ein Neheragin' (like it will do later in the Perek)?

Question #2: Moreover, what is the Kashya, seeing as in the latter case, the Torah explicitly indicates (in the very same Pasuk, when it writes "Ka'asher Zamam" ['ve'Lo Ka'asher Asah']) that as long as the accused has not been put to death, the Eidim Zom'min are. Whereas there is no Pasuk to teach us the same thing regarding bar Pada's case (of 'ha'Ba Lechalel'), in which case his 'Kal va'Chomer' ought to still stand?

Question #3: Furthermore, the Gemara ought to have answered that, whereas to Darshen the 'Kal-va'Chomer' in the latter case would negate the entire Din of Eidim Zom'min, there is no reason not to Darshen it in bar Pada's case, seeing as the Din of Eidim Zom'min will remain intact with regard to all other cases.

Rabeinu Tam's explanation: The 'Kal-va'Chomer' is from a case where Reuven stones Shimon to death, yet he himself is (sentenced to death by the sword, but) not stoned, how much more so will he not be stoned for merely intending to stone him.

Conclusion: According to this explanation, the Kashya does not negate the Din of 'Ka'asher Zamam" altogether, seeing as we can establish the Pasuk by one of the deaths of Beis-Din other than Sekilah (see Maharsha & Aruch la'Ner), and still we do not Darshen this 'Kal-va'Chomer', as we learned earlier.