Makkos - Daf 5
- הזמה requires testifying "עמנו עייתם"
The Mishnah states: אין העדים נעשים זוממין עד שיזימו את עצמן – witnesses are not made zomemin unless [other עדים] discredit [the עדים] themselves. The Mishnah illustrates, that if עדים testify that Ploni killed someone, and others testify that Ploni, or his supposed victim, was with them that day elsewhere, the first עדים are not zomemin (rather, the testimonies are contradictory). However, if the second pair says: היאך אתם מעידין – “How can you testify about the murder, שהרי אתם הייתם עמנו אותו היום במקום פלוני – since you were with us that day in this-and-this place,” then the first witnesses are zomemin, and killed. Rav Adda sources this law in the passuk: והנה עד שקר העד שקר ענה –behold, the witness is a false witness, he has testified falsely, teaching: עד שתשקר גופה של עדות – until the witnesses themselves are falsified. A Baraisa darshens this from another passuk. Rava says the עדים are killed even if the second pair testifies the murder did occur, even earlier, as long as the murderer was not convicted in Beis Din before the false testimony.
- עדים זוממין are only killed if their victim was convicted, and not if he was executed
The next Mishnah states: אין העדים זוממין נהרגין עד שיגמר הדין – zomemin witnesses are not killed for false testimony unless the verdict was reached condemning their victim to death. The צדוקים say: עד שיהרג – the עדים are not killed unless [their victim] was actually executed by Beis Din, because the passuk says "נפש בנפש" – a life for a life, but the Sages told them that the passuk says “you shall do to him as he planned to do'לאחיו' – against his brother,” והרי אחיו קיים – indicating his brother is still alive. Rather, "נפש בנפש" teaches that zomemin are not killed for merely testifying, but for successfully causing a guilty verdict. In a Baraisa, Beribi’s father asked him, is it not a kal vachomer that עדים should also be executed for causing the victim’s death? He responded: לימדתנו רבינו שאין עונשין מן הדין – You have taught us, our teacher, that we do not punish based on the logic [of a kal vachomer]. This is derived from the Torah writing the kares penalty for relations with a full sister after having written it for a half-sister. The Gemara similarly derives שאין מזהירין מן הדין – that we cannot establish a prohibition based on the logic [of a kal vachomer].
- The Torah compares two עדים to three עדים
The next Mishnah quotes the passuk which says someone is executed"על פי שנים עדים או שלשה עדים" – by the word of two witnesses or three witnesses. The superfluous mention of three witnesses is להקיש שלשה לשנים – to compare three witnesses and two, teaching several laws: (1) Just as three עדים can discredit two through hazamah, אף השנים יזומו את השלשה – so too, two can discredit three through hazamah (despite being fewer witnesses), or even a hundred. (2) Rebbe Shimon says that just as two witnesses are not executed unless they are both proven zomemin, אף שלשה אינן נהרגין עד שיהיו שלשתן זוממין – so too, three witnesses are not executed unless all three are proven zomemin. (3) Rebbe Akiva says the hekesh teaches a stringency, to punish the third (unnecessary) witness along with the others. If Hashem punishes someone who merely joined with transgressors like the transgressors themselves, על אחת כמה וכמה ישלם שכר לנטפל לעושי מצוה כעושי מצוה – how much more so will He reward those who join with performers of a mitzvah like the performers of the mitzvah themselves! (4) Just as with two witnesses, נמצא אחד מהן קרוב או פסול – if one of them was found to be a relative or a disqualified witness, the testimony is invalid, the same applies to multiple עדים.
