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Edut She'ata Yachol le'Hazima

Makkot (1:1) | Yisrael Bankier | 17 hours ago

This week we started masechet Makkot. It opens by discussing eidim zomemin -- false witnesses. We learnt that for witnesses to be found false, other witnesses must testify that it was not possible for the original witnesses to provided testimony, since they were at a different location at the time. In that case the eidim zomemin receive the reciprocal punishment -- the punishment that they attempted to inflict on the falsely accused.

The first Mishnah however teaches that there are a few cases where a truly reciprocal punishment is not possible. In such cases, the Mishnah explains that in those case, the witnesses are punished with lashes instead.

Recall that last week we mentioned the requirement that for witnesses to provide testimony, it must be possible from them to be found as eidim zomemin and receive a reciprocal punishment -- edut she'ata yachol le'hazima. The Tosfot therefore ask that in the cases listed, how could we accept any testimony? Since, if found false, they would receive lashes instead of the punishment they attempted to inflict, they would not be receiving the reciprocal punishment. The Tosfot provides two answers.

The first answer is that since the eidim zomemin would receive a punishment, it is sufficient to be considered edut she'ata yachol le'hazima. More specifically, since lashes is the punishment that is delivered to eidim zomemin for these cases, the requirement is satisfied.

The Tosfot also explains that the requirement of edut she'ata yachol le'hazima stems from ka'asher zamam. We learnt that in these cases ka'asher zamam does not apply (and they are punished with lashes instead). That being the case, the second answer of the Tosfot is that the requirement of edut she'ata yachol le'hazima simply does not apply in these cases.

The Minchat Chinnuch (4:13) brings a practical different between these two different understandings when discussing the witnesses for kidush ha'chodesh. In that case also, it would be impossible to give eidim zomemin a reciprocal punishment -- they were attempting to make a different day rosh chodesh. The law that lashes are given when the reciprocal punishment cannot be administerd, is derived from the pasuk, that "we acquit the righteous (falsely accused) and incriminated the wicked...". Consequently, since this is not a case of a guilty or innocent party, they would not even receive lashes. That being the case, according to the first answer, testimony for kiddush ha'chodesh would not be edut she'ata yachol le'hazima. How then could we receive any testimony regarding kiddush ha'chodesh? Since that is not a possible conclusion, he understands that the pasuk is used to teach that lashes apply to eidim zomemin in general, including kidush ha'chodesh.

Instead, the Minchat Chinnuch brings a different practical difference. He explains that according to the first answer, where the punishment of lashes would qualify for edut she'ata yachol le'hazima, the witnesses would need full chakira prior to testifying. Recall that chakira refers to inquiring about the timing and location of the testimony that are necessary to potentially find these witnesses false. According to the second understand, that when kasher zamam does not apply neither does the requirement for edut she'ata yachol le'hazima, chakira is not necessary.

The Yalkut Biurim cites the Beit HaLevi (3:6) that argues with the Nodeh BeYehuda who makes a similar claim. The Beit HaLevi explains that (according to the second answer) while the exact reciprocal punishment is not a requirement for edut she'ata yachol le'hazima when ka'asher zamam does not apply, the ability to find them false by way of the chakirot is still possible and necessary. In other words, there are two elements at play, finding them false and administering the reciprocal punishment. The novelty of the second answer is only that the second element is not necessary for those cases where ka'asher zamam does not apply. Nevertheless, according to both understandings, the ability to find the witnesses false is essential and the chakirot are therefore necessary.

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