The first chapter of Makkot deals with law of eidim zommemin – false witnesses. The general law is that if the accused is found guilty and the witnesses are then found to be false (1:8), then they received the punishment that they intended for the accused to receive. The Mishnah (1:4) teaches that witnesses are defined as zommemin if others testify that that those witnesses were with them in a different location at the time they claim to have witnessed the event.
The Mishnah (1:6) however explains that if the falsely accused was executed, the eidim zommemin do not receive the reciprocal punishment. The Mishnah explains that this is because the Torah teaches: “You shall do to him as he conspired to do to his fellow” and his fellow is still alive. The Ritvaexplains that the Mishnah is not learning from the word “fellow” since this term can equally apply for the living and dead. Rather it learns from that fact that it says “zamam” (conspired) and not “asah” (performed). When it comes to capital cases we do not apply a kal ve’chomer which would have allowed us to extrapolate to a case where they not only conspired but succeeded.
There is a discussion whether the reciprocal punishment is delivered after the accused is found guilty and the judgement delivered in monetary cases or cases involving lashes. The Tosfot Yom Tov cites a Mishnah in Bava Batra (3:4) where it implies that in monetary cases, even after the payments have been made, the reciprocal punishment would apply. Furthermore, he cites the Rambam that maintains that this would be the law in cases involving lashes as well. Why?
The Kesef Mishnah answers first, that according to the Rambam, the reason why the above law only applies to capital cases is because the sin of the eidim zommemin is too great. We forget, but receiving punishments in this world to achieve atonement is better then receiving it in the next and those eidim zommemin in a capital case are not given that opportunity. The Kesef Mishnah’s second answer is that had the falsely accused not been liable to death, then Hashem would not have allowed the eidim zommemin to have succeed. Consequently they killed a dead man. The Ramban on the Torah provides a similar answer, although the Tosfot Yom Tov notes that Ramban may have held that the logic applies equally cased involving lashes or money. While there appears to be a source for applying a late reciprocal punishment in monetary cases, the Tosfot Yom Tov is not satisfied that there is no source for a late reciprocal punishment of lashes yet the Rambam maintains it applies.
The Minchat Chinnuch suggest that the reason that the eidim zommemin received lashes in such cases is not because of “ka’asher zamam”, but because of “ve’hitzdiku et ha’tzaddik…” Recall from the first Mishnah that in the event that a reciprocal punishment cannot be delivered, the latter passuk is the source that the eidim zommemin receive lashes. The Minchat Chinnuch admits that this does not appear to be rationale of the Rambam. Firstly according to this understanding then the eidim zommeminthat succeeded in capital cases would nevertheless receive lashes – the Rambam does not mention this. Secondly, eidim zommemin that succeed in a case of multiple lashes would only receive one set – the Rambam however rules that the reciprocal punishment is delivered. Nevertheless, the Minchat Chinnuch feels “that [it] is the truth”.
R’ Chaim however explains differently. In monetary case the reciprocal punishment is delivered even if the eidim zommemin succeed since money can be returned. Consequently we never get to a point of “what they wanted to do and not what they did”. How can we explain a case involving lashes? There is a special law regarding Malkut (lashes) as a punishment. It must be performed in front of Beit Din and by Beit Din; otherwise it is simply chavala (trauma). Once these witnesses are found to be false, we find that the lashes were not malkut but an unwarranted beating. Consequently the witnesses did not success in having the falsely accused suffer malkut – it was not “ka’asher asah” – and they may receive reciprocal punishment. (See R’ Chaim inside for more detail.)
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