Mi Yodeya is a question and answer site for those who base their lives on Jewish law and tradition and anyone interested in learning more. It's 100% free, no registration required.

Sign up
Here's how it works:
  1. Anybody can ask a question
  2. Anybody can answer
  3. The best answers are voted up and rise to the top

There is a rule that Ka'asher Zamam vilo Ka'asher Asa: the second set of witnesses have to appear in court "before the punishment" in order that the first witnesses get the punishment Ka'asher Zamam. And it has to be after the court set out his punishment.

Example: Two witnesses come to court and say that Rueven killed Shimon, so the court checks out whether they are true. Let's say they look like valid witnesses and the court says Rueven is subject to death by sword. Then the second pair of witnesses who make the first aydim zomim have to come between now and the actual chopping off of the head of Rueven: two witnesses come to court and say "You were with us etc" making the first set aydim zomim.

So my question is: if this happens but instead of death the punishment is that the defendant becomes a challal (the first witnesses instead said that Rueven (who is a cohen) is a ben grusha, son of a divorcee) so there is no time between when court says he is a challal and actually becoming a challal. What then?

share|improve this question

The Limmud for "before the punishment" is from Kaasher Zamam, not Kaasher Asu (what they planned to do, not what they succeeded in doing).

With a Challal, when the Eidim are made Zomminim, the whole Challal is undone and it is as if it never happened. So in the end they were only planning, they didn't succeed, so they are still under to the din of Kaasher Zamam.

The Riva in Tosfos takes this further (Bava Kama 4b ועדים זוממין) and says that this applies to any monetary payment as well. Since it is possible to return it, it is not something that they succeeded in doing. (The Ri gives a different reason, and thus would have to answer this question like Tosfos in Makkos 2a מעידין אנו באיש פלוני שהוא בן גרושה that the entire verse is not applicable. They don't get "what they intended" - they get lashes instead - so there is no limitation of "what they intended and not what they succeeded in doing" as well).

The Rambam (Eidus 20:2) goes even further and says the only time we apply Kaasher Zamam VeLo Kaasher Asu is with regards to the death penalty. In all other cases (including lashes) the Eidim get punished whether or not they succeeded in their plan.

A lot of ink has been spilled to justify the underlying reasoning of this statement in the Rambam.

share|improve this answer
    
This is interesting. It seems you are saying that anything undo-able cannot fall under the exemption of Kaasher Asu. A good test case would seem to be monetary payments. – Double AA Jul 3 '14 at 17:29
    
@DoubleAA, I don't think monetary payments is the same thing. When the Eidim become Zommin, the money doesn't reappear in the Baal Din's pocket. – Yishai Jul 3 '14 at 17:32
    
Physically, not, but kinyan-wise maybe yes. It was a matana betaut. – Double AA Jul 3 '14 at 17:35
    
@DoubleAA, maybe, and some Rishonim do say that. See the Kesef Mishna on the Rambam I quoted. I'm just saying it isn't necessarily that way, as I don't think it is universally held that money is different. – Yishai Jul 3 '14 at 18:22
1  
I'm only arguing according to your proposed answer that undo-able-ness is relevant. – Double AA Jul 3 '14 at 18:49

I could read your question in one of two ways - how do we punish the Eidim Zomimin, or why do we punish them as we do, since it's already Ka'asher Asah - and so I'm going to try to answer both in one shot.

Mishnah in Makkos 2a (translation that follows is my own free translation; the brackets are my own addition to help understand the Mishnah):

"How are witnesses turned into Zommemin [yet don't receive the punishment they tried conveying onto the defendant - Gemara]? [For instance, if the witnesses said,] 'We testify that Ploni is the son of a divorcee or Chalutzah,' we don't say that [the witnesses] should become children of divorcees or Chalutzos instead of him [since they're also Kohanim - Rashi], but rather, we give them Makkos. [Another case: if the witnesses said,] 'We testify that Ploni killed b'shogeig,' we don't say that [the witnesses] should be exiled [to the Ir Miklat] instead of him, but rather, we give them Makkos."

Perhaps one could infer from here that there's a difference between a punishment imposed on a person and a status change imposed on a person. What both of these cases have in common is that the status of the person changes, from a Kohen to a Challal in the first case and from a free man to a ben Golah in the second case. Thus, one can't give them the punishment they wanted to impose on the other person, because there is no punishment. Thus, there's no issue of Ka'asher Asah, because they never caused anyone to be punished!

Ay, you'll ask me, why isn't Ir Miklat considered a punishment? According to the Rambam (Moreh Nevuchim 3:40), there's no issue, as the entire inyan of Ir Miklat is for the benefit of the family of the deceased and not to punish the murderer. But even according to the Sefer HaChinuch (410), who says that it's to show the murderer that he must be more careful with how his actions impact other people emotionally, you could still argue that it's not a punishment, per se, so much as a lesson prompted by something that he did.

If you think that it's a little far-fetched to say that there's a difference between punishment and change in status, I'll bring you a proof from the rule of kim lei k'dirabah minei. As we know (IIRC it comes up in Makkos 4a-b), if a person is obligated in multiple punishments, he is only given the worst one. Thus, if a person kills intentionally, chas v'shalom, and, while he's at it, damages the victim's clothing, he is patur for paying for the clothing, since he's chayiv misah.

Now, what about the Oneis, Mefateh, and Motzi Sheim Ra? All of them are chayiv to pay a k'nas, to pay the boshes and p'gam payments (at least by the first two), and to marry and never divorce the victim. Now, I understand that payments can be merged into one "punishment" for the sake of kim lei k'dirabah minei. But why does he have to pay at all, since he's forced to marry her? Perhaps it's the same concept: only the payments are considered punishments; the requirement to marry her is a change in his status from "single" to "married."

share|improve this answer

Your Answer

 
discard

By posting your answer, you agree to the privacy policy and terms of service.

Not the answer you're looking for? Browse other questions tagged or ask your own question.