Siman 38

Two witnesses who testified against someone that he killed a person or that he owes so-and-so a maneh, and two others came and contradicted them, the words of both groups are nullified and he and they are exempt. But if others came and performed hazamah upon them, the Torah decreed that the latter are believed and the testimony of the first is void. Not only that, but they are liable for this liability that they sought to obligate the one against whom they testified, as it is written: "Then shall you do unto him as he had conspired to do unto his brother." If they came to obligate him in death, they are put to death; if they came to obligate him in malkut, they are lashed; and if they came to obligate him in money, they pay the money between the two of them. And it is impossible to say that each one should pay all the money, as in the case of death and malkut where each one suffers the entire punishment they sought to obligate him with, for regarding money it is impossible to say they should pay him more than he would have been liable according to their testimony; therefore, they pay between the two of them. And they are not lashed, for it is a principle in the Torah that one is not punished with two punishments for one transgression, as it is written: "And he shall strike him before him according to his wickedness," and the tradition came that for one wickedness you obligate him, and you do not obligate him for two wickednesses. Therefore, they pay and are not lashed for the prohibition of "You shall not bear false witness." And the Torah revealed regarding conspiring witnesses in a liability of money that they are for payment, as it is written: "Hand for hand," and we expound: a matter that is given from hand to hand. And our Sages, of blessed memory, said that in all matters we fulfill "as he conspired," except in four matters where they are punished with malkut and not with "as he conspired": When they testified about a kohen that he is a chalal, they do not become chalalim when they are subjected to hazamah; and when they testified about someone that he killed unintentionally and is liable for galut, and they were subjected to hazamah, they do not go into exile in his place to the cities of refuge; and when they testified about his ox that it killed a person and he is liable to pay kofer, they do not pay kofer when they are subjected to hazamah; and when they testified that he stole and has nothing with which to pay, such that he is sold for his theft, they are not sold when they are subjected to hazamah. And our Sages, of blessed memory, expounded all of them from verses at the beginning of Makkot: regarding chalalim it is not applicable that they should be so, for if so, their children whom they father would also remain chalalim, and it is written: "And you shall do unto him," and not unto his offspring. And regarding those liable for galut it is written: "He shall flee unto one of the cities etc.," and we expound: he, and not his conspirators. And kofer they cannot pay, for kofer is an atonement for the soul that was killed, and they are not subjects of atonement since their ox did not kill a person. And regarding being sold for theft it is written: "And he shall be sold for his theft," and we expound: and not for his conspiracy. See there.

And even though we do not adjudicate the law of edim zomemim in this time because it is a fine, and in this time we do not adjudicate laws of fines as has been written in siman 1, nevertheless there is a practical legal difference even in this time. For in a case of hazamah, if the litigant seized from the conspiring witnesses according to what they conspired against him, we do not extract it from him, as with all fines as has been written there; but in a case of hachashah, if he seized, we extract it from him [Sma]. And so too there is a practical difference when he already paid the litigant according to the first witnesses and it is impossible to reverse the judgment, such as if he is a man of violence or went to a distant land or has nothing with which to pay; in a case of hazamah the witnesses are obligated to pay, but in a case of hachashah they are not obligated, for perhaps you are the truth, but in a case of hazamah the Torah believed the latter witnesses [Shach].

Regarding the difference between hachchashah and hazamah, the Tur wrote that hachchashah is not against the person of the witnesses, but rather that they contradict them; for these say "so-and-so borrowed from so-and-so," and these say "he did not borrow, for we were with him the entire day and we saw that he did not borrow." And hazamah is against the person of the witnesses, for they say "at that time that you say he borrowed, you were with us." And because of this, the latter ones are believed, since they testify about the person of the witnesses, and it is as if they testified about them that they killed a person or that they desecrated Shabbat, and they are not believed about themselves to say "we did not do such and such." Thus far his words. And his intention is not that this is a sufficient reason for why the Torah gave credibility to the hazamah-witnesses, for behold, in the entire Shas we say that hazamah is a novelty: "What did you see to rely on these? Rely on those!" And it is a decree of the Torah. For in truth, this is not comparable to testifying that they killed a person or desecrated Shabbat, for in those cases, that which they testified about is a transgression; but regarding "you were with us," there is no transgression here at all, unless you combine it by saying that since "you were with us," perforce you did not see that this one borrowed from this one at that time, and the primary transgression is in that they contradict them regarding the loan, and we return to it being hachchashah. Rather, this is a decree of the Torah, that when they contradict the person of the witnesses, their law shall be like those testifying about their person that they killed or desecrated Shabbat. And the Tur is explaining the primary difference between hachchashah and hazamah, and the Torah believed them in such a case when they testify about the person of the witnesses just as they testify about their person that they desecrated Shabbat, but the reason is not sufficient; rather, it is a decree. [So it appears to me, and that which they questioned him is settled; and see in Lechem Mishneh, chapter 18 of Hilchot Edut].

The Rambam, of blessed memory, in chapter 18 of Edut, wrote: And what is the difference between contradiction and refutation? Contradiction is regarding the testimony itself—this group says this thing happened and this group says this thing did not happen, or it emerges from the implication of their words that it did not happen. And refutation is regarding the witnesses themselves, and these witnesses who refuted them do not know if the event occurred or did not occur. How so? Witnesses who came and said, "We saw this person who killed the soul" or "borrowed a maneh from so-and-so on such-and-such a day in such-and-such a place," and after they testified and were examined, two others came and said, "On this day and in this place we were with you and with these people all day, and the matter never happened; neither did this one kill this one, nor did this one lend to this one"—behold, this is contradiction. And similarly, if they said to them, "How do you testify thus? For this killer, or the one killed, or the borrower, or the lender, was with us on this day in another province"—behold, this is contradicted testimony, for this is like saying he did not kill him and he did not lend to him, since he was with us and this thing did not happen. And so too anything similar to these matters. But if they said to them, "As for us, we do not know if this one killed this one on this day in Jerusalem as you say or did not kill him, but we testify that you yourselves were with us on this day in Babylon"—behold, these are refuted, and they are executed or they pay, since the witnesses who refuted them did not pay attention to the substance of the testimony at all, whether it was true or false. And this, that the Torah believed the testimony of the latter ones over the testimony of the former ones, is a decree of the Scripture; even if the first witnesses were a hundred and two came and refuted them and said to them, "We testify that all of you hundred were with us on such-and-such a day in such-and-such a place," behold, these are punished based on their word, for two are like a hundred and a hundred are like two. And similarly, regarding two groups of witnesses who contradict one another, we do not follow the majority, but rather we dismiss both of them. Thus far the words of the Rambam, of blessed memory. And it appears ostensibly from his words that in a refutation of "you were with us," if they also contradict the act, it is not refutation. Therefore, there are those who wrote that the Tur disagrees on this, for according to the reasoning of the Tur, since they testify about the bodies of the witnesses, what does it matter to us if they also contradict the act [Tosafot Yom Tov, Makkot chapter 1]. And many wondered at this regarding the logic of the Rambam, for what ruin is it to the refutation if they also contradict the act [Lechem Mishneh ibid.]? And they raised a difficulty against him from that which we established: "So-and-so raped me"—he and another join together to execute him, as he wrote in chapter 12 of Edut and as was explained in siman 34. But this would be testimony that you cannot refute, for when they refute them, they will perforce also contradict the substance of the act, since the witness is a participant in this act, and any testimony that you cannot refute is not testimony in capital cases [Urim VeTummim in the name of Rav Chayim Yonah]. And there is a further difficulty from two who testified about one that he blinded the eye of his slave and knocked out his tooth, and two came and refuted them and reversed the matter—that he knocked out his tooth and blinded his eye—and there is a law of refutation in this, as the Rambam himself wrote in chapter 21 and as will be explained in section 19; yet behold, in this they also know of the substance of the act. And there is a further difficulty from that which we established: that if two testified that on the first of the week Reuven killed the soul, and two came and said, "On the first of the week you were with us, but on the second of the week he killed him," it is refutation; and the Rambam ruled so in chapter 19 and it will be explained in section 10; yet behold, they also know of the substance of the act. And there is a further difficulty: from where did this logic emerge for the Rambam?

In my humble opinion, it seems clear that the intent of the Rambam is like the words of the Tur, and he is only clarifying the difference between hachchashah and hazamah. For even though hazamah also perforce results in the outcome of their testimony being a matter of hachchashah—for if not so, what difference does it make whether the witnesses were with them, with the plotters, or not? And it is not similar to where they testified against them that they desecrated Shabbat, where there is a transgression in the essence of the testimony. But in "you were with us," there is no transgression here unless you join the fact that since "you were with us," perforce this which you testified, that this one borrowed from that one, is a lie, and it reverts to being hachchashah. Rather, it is a decree of the Torah that when they testify only regarding the essence of the witnesses, they are believed, just as if they testified that they desecrated Shabbat, as I wrote in section 3. According to this, the core of the matter depends on the intent of the latter witnesses: if their intent in this testimony is to contradict the essence of the act—such as when they mention in their testimony a contradiction of the essence of the act, or even if they do not mention it but from the implication of their words a contradiction of the essence of the act arises, such as when they testify regarding the borrower or the lender that he was with them, and perforce their intent is to contradict the essence of the act, for if not so, what difference is there whether he was with them or was not with them? Therefore, it is hachchashah. But in "you witnesses were with us," even though this too perforce results in contradicting the essence of the act—for if not so, what difference is there in this?—nevertheless, the Torah decreed so, as I wrote. And according to this, from where do we know if their intent was to contradict the essence of the act in coming with this testimony or not? There is a test for this. And behold, it goes without saying that when they actually know of the essence of the contradiction of the act and in their testimony they do not mention this at all, it is obvious that their primary intent is regarding the contradiction of the essence of the witnesses and not regarding the contradiction of the essence of the act, for if not so, they would have also mentioned the contradiction of the essence of the act since they know of it. And so too, even if they mention the essence of the act but they mention it as another testimony, like that of section 10, when they say "on the first of the week you were with us" and they add further that "on the second of the week he killed"—for if their primary intent was to contradict the essence of the act from the first day to the second day, they should have testified "he did not kill on the first day but on the second day," and why should they testify "you were with us"? Rather, certainly their primary intent is the hazamah. And so too in that of section 19, and all the more so in that of "so-and-so sodomized me," where perforce when they say "you were with us" they contradict the essence of the act, and they should have testified thus: "your testimony is a lie, for behold you were with us, and how did you say that he sodomized you?" Rather, since they know and do not mention it, it is obvious that their primary intent is for hazamah. But even if they do not know of the contradiction of the essence of the act—where it could be said that their primary intent in the hazamah is to contradict the essence of the act, for if not so, what difference is there whether they were with them or not, as I wrote—nevertheless, the Torah decreed that since they do not mention the essence of the contradiction of the act, it is hazamah. And this is what the Rambam, of blessed memory, wrote: hachchashah is in the testimony itself when they mention the contradiction explicitly, or even if they do not mention it explicitly but perforce their intent is for this, which comes from the implication of the words of their testimony, for if not so, there is no explanation for this—such as when they say "the borrower or the lender was with us," and what difference is it if not that their intent is to contradict the essence of the act? And hazamah is when their entire primary intent is regarding the witnesses themselves, even though the result of this is hachchashah, as I wrote, for what difference is there in this? Nevertheless, the Torah decreed so. And therefore, if they do not know at all if the thing happened or not, even though it is possible their intent is for this, nevertheless, since they do not mention this—and all the more so when they say explicitly "we do not know of this, if he killed or if he did not"—and this which he wrote, "but if they said to them: we do not know if this one killed this one, etc.," the intent of the Rambam is not that they must say this explicitly; rather, his intent is to know clearly that their intent in this testimony is not to contradict the essence of the act, and as he concludes, "since they did not pay attention to the essence of the testimony at all." And if so, when they did not mention it, behold they did not pay attention to it. Rather, because regarding hachchashah he said previously that they mentioned the contradiction explicitly, he says regarding hazamah the opposite, that they mentioned explicitly that they are not paying attention to the contradiction of the essence of the testimony; but the core of the matter depends on the revelation of the intent of their testimony. And if so, all the more so when they knew of the act and did not mention it, it is obvious that it is the essence of hazamah. And in all places in the Gemara regarding the law of hazamah, it is not mentioned anywhere that they must say explicitly "we do not know of the act," but rather that you automatically hear from it that since they do not mention this, automatically they did not concern themselves with it. And so too when they mention the essence of the act from the side, like in the case of the tooth and eye of a slave, and that he did not kill on the first day but on the second day, as we explained. And all these laws are explicitly explained from the Mishnah in Makkot [5a], as we learned: Witnesses do not become zomemim until they are made zomemim themselves. How so? They said: "We testify concerning such-and-such a person that he killed a soul." They said to them: "How do you testify, for behold this one who was killed, or this killer, was with us on that day in such-and-such a place?" These are not zomemim. But if they said to them: "How do you testify, for behold you were with us on that day in such-and-such a place?" behold these are zomemim, etc. And the inference of the first clause is difficult against the inference of the latter clause: for from the first clause it implies specifically when they mentioned the hachchashah alone it is not hazamah, but when they mentioned both of them, the hachchashah and the hazamah, it is hazamah; and in the latter clause it implies that specifically when they mentioned the hazamah alone it is hazamah, but when they mentioned both things it is not hazamah; and the Gemara makes such inferences in many places. And furthermore, why does it not teach in the first clause the primary hachchashah, that "he did not kill," and why does it need to depict it with "the killer or the one killed was with us"? However, according to what we explained, it is well, for there is no difference whether they mention one of them or both of them, for the core of the matter depends on what their primary intent was to testify. And therefore it teaches in the first clause as a greater novelty: even though they do not mention the primary hachchashah, but rather "the killer or the one killed was with us," and this comes from the implication of their words as the Rambam, of blessed memory, wrote—meaning, since perforce the primary result of their words is that their intent is to contradict the essence of the act, for if not so, there is no difference in which place the killer or the one killed was—therefore it is hachchashah and not hazamah. But if they said to them: "You were with us in such-and-such a place," even though here too the result of this is that the act is a lie, nevertheless, since they testify regarding the essence of the witnesses and do not testify regarding the contradiction of the essence of the act, the Torah decreed that this is hazamah. And when they testify regarding both things, it is hachchashah in most instances, unless they mention the hachchashah from the side, as has been explained.

Edim zomemim do not require hatra'ah, for if we were to say they require hatra'ah, this would not be "as he conspired," since they desired to kill him without hatra'ah [Ketubot 33a]. And witnesses who were contradicted and ultimately became zomemim, these are executed or lashed or pay, and we do not say the testimony was already nullified through the contradiction, for contradiction is the beginning of hazamah, except that it is not yet completed. However, there is a practical difference between them, for hazamah is not established unless they are made zomemim in their presence, since to fulfill the hazamah against them, they are litigants before whom one must testify, as I wrote in siman 28. But contradiction, which is only to negate the act, they may contradict even not in their presence. And witnesses who were made zomemim not in their presence, there is no law of hazamah in this, only the law of contradiction. And if the witnesses who made them zomemim died before they could make them zomemim in their presence, there is no testimony here at all, for they contradicted one another. And we do not say that since it is impossible for there to be hazamah anymore, there is also no contradiction here, because they did not come to contradict them but to make them zomemim, and this is not hazamah, and we should uphold the testimony of the first ones; for it is impossible to say so, as it is obvious that it is no less than contradiction, and therefore we nullify the entire testimony. And this which we said, that in contradiction we nullify the entire testimony, even if the falsehood of the first ones was clarified—for example, they testified that Reuven killed Shimon and they were contradicted, and Shimon came before us alive—where it would be proper by law to lash them because of the prohibition of "do not bear false witness," nevertheless, since this prohibition was given as a warning for execution by beit din when they are made zomemim, and we have a tradition from the mouth of Moses our teacher from the mouth of the Almighty that any prohibition given as a warning for execution by beit din, one does not receive lashes for it. And even though the punishment of edim zomemim is written explicitly, "and you shall do to him etc.," nevertheless, He does not punish unless He warned, and its warning is from "do not bear false witness" [Makkot 4b], and it was given for execution by beit din and one does not receive lashes for it. And the Rambam, of blessed memory, wrote that nevertheless, beit din strikes them with makkat mardut according to what they see fit. However, when they testified only regarding a liability of malkot, they are lashed when they become zomemim because of this prohibition, since in this case it can never come to execution by beit din [Tosafot Shabbat 154a].

Our sages, of blessed memory, said that four of those liable for the death penalty require a public announcement: an inciter, a wayward and rebellious son, a rebellious elder, and conspiring witnesses, for regarding these it is written, "they shall hear and fear." And how is the announcement made? The Rambam, of blessed memory, wrote that they write and send to every single city: So-and-so and so-and-so testified such and such and were proven to be conspirators, and we executed them, or they were lashed before us, or we punished them with such and such dinars according to what they sought to make him liable for. And in the Tosefta, chapter 11 of Sanhedrin, it is taught that they must make known in which beit din it occurred and who the witnesses were through whom they were executed. And so the Rambam wrote regarding a wayward and rebellious son at the end of the Laws of Rebels [and it requires further study, for the Rambam there rules according to Rabbi Akiva in Sanhedrin chapter 11, that they guard him until the festival, and not like Rabbi Yehuda there; and in the Tosefta there it is explained that only according to Rabbi Yehuda is an announcement required, and perhaps in this Rabbi Akiva does not disagree, and this is why the Gemara there established it as a separate Baraita; and examine this closely].

That which the zomemim pay is a fine, as I wrote in siman 1; therefore, they do not pay based on their own admission, for one who admits to a fine is exempt. Therefore, if they said, "We testified in such-and-such a beit din and the beit din obligated us to give him such-and-such," behold these pay, for this is absolute monetary liability since the beit din already obligated them. But if they only said, "We testified in such-and-such a beit din and we were found to be zomemim," they are not obligated to pay. And so too, when they say, "The testimony that we gave was false testimony," they are not believed regarding the one who gained through their testimony, for once he has testified, he cannot retract and testify again. They are only believed regarding themselves to pay this person who lost through their testimony, for this is not a fine, as they were not made zomemim by other zomemim but rather by their own word, as I wrote in siman 30. Nevertheless, the claimant claims from the defendant and cannot say to him, "Claim from the witnesses"; rather, the defendant pays him and he shall claim from the witnesses [Sma]. And so too, a single witness who admitted that he testified falsely, or if they were made zomemim in beit din and were obligated to give money, he is obligated to give his portion. However, from the words of the Rambam, of blessed memory, at the end of chapter 18, it implies that when they say, "We gave false testimony," their law is like those who admitted they are zomemim and they do not pay based on their own word, and even to the one who lost they do not need to pay by the law of garmi, for they are not believed at all. This is the opinion of Rabbeinu Chananel brought by the Tur [as our teacher, the Rema, wrote in Darkei Moshe and the Bach, and the Shach and the Tumim struggled needlessly, and the plain meaning of the beginning of Makkot implies this, as it compares false testimony to hazamah, and so it appears from the Sifrei brought in Yalkut Shoftim, allusion 923].

If two came and said, "In the east of the citadel, Reuven killed a person at such-and-such a time," and two came and said, "In the west of the citadel, you were with us at that same time," we see: if one standing in the west of the citadel is able to see what is done in its east, they are not zomemim; and if not, behold, these are zomemim. And we do not say, perhaps the eyesight of the first witnesses was great and they see further than other people. And likewise, if two testified and said, "At such-and-such a hour this person killed a person in Jerusalem," and two came and said that "six hours afterward you were with us in Lod," we see: if a person riding on a horse is able to arrive in six hours or more—according to the common error among people regarding hours, as has been written in siman 30—from Jerusalem to Lod, these are not zomemim; and if not, behold, they are zomemim. And we do not say, perhaps a swift horse that runs faster than other horses happened to be available to them, for we only measure according to the way of the world. However, if they claim so, that their vision is greater than other people or that a swift horse happened to be available to them, their claim is a valid claim [Tosafot Yevamot 116a]. But the beit din does not claim on their behalf a matter that is not according to the way of the world.

Two who said, "On the first of the week, so-and-so killed a person," and two came and said, "On the first of the week you were with us," but "On the second of the week he killed," they are zomemim. Since regarding the day they testified, that so-and-so was not yet liable for death; and even if the latter ones said that on the eve of Shabbat he killed, and they advanced the time, yet if they said that his verdict was not yet finalized, they are also liable for death. For as long as his verdict is not finalized, he is like one who is innocent, and perhaps his verdict would not have been finalized for liability; therefore, we judge them with the law of zomemim. But if the latter ones said that on the eve of Shabbat he killed and his verdict was finalized for death, the first ones are exempt, for at the time they testified against him, his verdict was already finalized. [And when the latter ones delayed his killing, and the first ones are executed based on their words, if the verdict was finalized by the latter ones, they execute him as well.] And even if they say that his verdict was not finalized until the second day, nevertheless, since at the hour the first ones testified his verdict was already finalized according to the words of the latter ones, they are not liable for death. And such is the law regarding a kenas: if two testified against Reuven that on the first day he stole and slaughtered and sold, and two others came and said, "On the first day you were with us," and "On the second day he stole and slaughtered and sold," the witnesses pay fourfold and fivefold. And even if they advanced it, if his verdict was not yet finalized according to their words, the first ones are judged as zomemim, for he has the ability to confess and be exempt, as one who confesses to a kenas is exempt. Furthermore, as long as his verdict is not finalized, we view him as innocent, as I have written. But if the latter ones testified that until the testimony of the first ones his verdict was already finalized, even though they delayed his theft, the first ones are exempt. And all this is regarding death and kenas, but regarding money that is not a kenas, such as if two testified that on the first of the week he stole, and two came and testified, "On the first of the week you were with us," and "On the second of the week he stole," since regarding the liability of the principal his confession does not help and we do not require a finalized verdict, they are not judged as zomemim. For specifically regarding death and kenas, where we require derishah and hakirah, he is not subject to liability as long as his verdict is not finalized, but not regarding money [Tosafot Makkot 5a]. And there are those who say that just as one who confesses to a kenas is exempt from payment, so too regarding capital cases, if one killed a person and came and confessed, he is exempt from death [Rashi ibid.], and even if he says his verdict was finalized in such-and-such a beit din [Tosafot Zevachim 71a]. And there are those who disagree with this [Tosafot Makkot ibid.]. And even according to the first opinion, this is only where he confessed that his verdict was finalized; but without this, you do not find it, for if witnesses did not come, it is obvious that he is not executed based on himself, and if witnesses came afterward, his confession does not help. And even though we hold that one who confesses to a kenas and afterward witnesses come is exempt, this is only when he obligated himself based on his confession for something, such as for money where he obligated himself for the principal, and not when he exempted himself from everything, as I have written in siman 348, section 9; see there.

Edim zomemim are not executed, nor lashed, nor do they pay, until both of them are fit for testimony and both are proven zomemim after the verdict has been finalized. However, if only one of them was proven a zomem, or if they were proven zomemim before the finalization of the verdict, or even if they were proven zomemim after the finalization of the verdict but one of them was found to be a relative or disqualified, they are not punished. The Rambam, of blessed memory, wrote that they are disqualified for all testimony in the Torah, for he holds that even though two sets of witnesses who contradict one another are each fit for testimony, as was written in siman 31, and the hazamah here was not established, nevertheless the status of hazamah applies to this regarding their disqualification, even though we do not adjudicate the law of hazamah regarding them. And there is no difference between two witnesses or three, and even up to one hundred. And this is specifically when each one testified within the time of a speech-interval of his fellow, but if they testified after a speech-interval, which is the time it takes for a student to greet his teacher, their testimony is divided and they are like two sets of witnesses and are not connected to one another. And some say that for all matters their testimony is divided, and some say that this is only regarding hazamah, but not regarding one of them being found to be a relative or disqualified, for even after a speech-interval the entire testimony is void. And the reason is that for hazamah, their disqualification is from the time of the reception of their testimony in beit din, and since they did not testify at the same time, their testimony is divided; but regarding a relative or disqualified person, where their disqualification is from the seeing of the testimony and all of them truly join their testimony, it is so even after a speech-interval [in Tosafot Makkot 6a]. And the opinion of the Rambam, of blessed memory, in chapter 20, law 3, is like the latter opinion, and according to this opinion the entire testimony is void even though regarding hazamah we only punish those who were proven zomemim, as the Rambam wrote there. And some say that we sustain the testimony through those who were not proven zomemim [the Ra'avad there].

The Rambam, of blessed memory, wrote: If one witness testified and his testimony was examined, and the second said, "I also am like him," or if he said, "Yes," or the like, and both were proven to be zomemim, they are both executed, or lashed, or they pay. For every witness who says "Yes" after the testimony of his fellow, it is as if he was examined and testified just as his fellow testified. And there is no unintentional act regarding edim zomemim, because it does not involve an action; therefore, they do not require hatra'ah, as we have explained. Thus far his words. And this has no explanation—how could "unintentional" apply to this, and how is it possible to punish for an unintentional act? And they have already wondered about him. And it appears to me that this is the explanation: that it is impossible for there to be an unintentional act at all regarding witnesses who were proven to be zomemim. For it is understandable that regarding a matter involving a sinful action, it is possible that he transgressed unintentionally; but regarding this testimony, there is no action at all, for they fabricated from their hearts to say a lie, that they saw so-and-so do such a thing, when they did not see it at all. For since the Torah believed the latter witnesses who said to them, "You were with us," perforce they fabricated from their hearts to speak a lie. And even if they say that they thought it was permitted to testify falsely, and one who says "it is permitted" is considered under duress, behold, there is no creature in the world who would think so—that it is permitted to testify a lie against his fellow. Therefore, they do not require hatra'ah, for hatra'ah was only given to distinguish between unintentional and intentional, for even regarding a Torah scholar there is reason to fear perhaps he was unintentional, as the Rambam wrote in chapter 12 of Sanhedrin, see there; and in this, there is no unintentional act. [And that which is in Ketubot 33a, which gives the reason "Is there anything etc.," the Rambam would explain that this is the meaning: since they fabricated from their hearts and it is not relevant that they were warned, how could we require hatra'ah for them? Behold, they are completely intentional.]

Two witnesses have the power to contradict even a hundred witnesses, and even if there were fifty groups and they rendered them all zomemim, it is a decree of the Torah that they are all rendered zomemim. We do not say there was a conspiracy among them to contradict anyone who would testify on this matter and to say to all of them, "You were with us." Just as we adjudicate against the first witnesses the law of hazamah, so too we adjudicate against the witnesses who rendered them zomemim. If two other witnesses came and rendered the witnesses who rendered them zomemim as zomemim, the first group is saved, and we execute the one they testified against and the witnesses who rendered them zomemim. And if against the witnesses who rendered the witnesses zomemim other witnesses came and rendered them zomemim, we execute the third group and the first, and this one they testified against is saved from death, and likewise the second group. In this manner, even a hundred groups enter, group after group, a group leaves and a group enters, and this is from the decree of the Torah.

Our sages, of blessed memory, received person from person until Moses our teacher, peace be upon him, from the mouth of the Almighty, that we do not adjudicate the law of conspiring witnesses unless the judgment was finalized by the first witnesses and they have not yet killed the one against whom they testified. However, if they have already killed him, we do not adjudicate the law of conspirators regarding them. And this is what is written: "And you shall do to him as he conspired to do to his brother," and not as he has already done. There are those who gave a reason for this: that after the beit din performed an act based on their testimony, and "God stands in the congregation of God," certainly the truth is with the first ones and a mishap would not have emerged from the hand of the beit din. The opinion of the Rambam, of blessed memory, is that specifically regarding death we say this, but when they testified regarding a liability of lashes or money, and they lashed the man against whom they testified or took money from him, we fulfill the law of conspiracy even after the act. And behold, regarding money, many of the Rishonim agreed with his reasoning because money is capable of being returned and "finalization of the act" is not relevant to it. But regarding lashes they disagree with him. According to the reason that was explained, one must distinguish between death and lashes, for specifically a mishap of death is impossible to emerge from a beit din, but not one of lashes [Kesef Mishneh]. However, besides this being a weak reason, it is hidden from where the Rambam derived this reasoning to distinguish between death and lashes. It appears to me regarding his reasoning, of blessed memory, that we have already explained that the negative prohibition of conspiring witnesses is from "You shall not bear [false witness]," and it has already been explained that there are four things for which the witnesses are lashed even though they did not seek to obligate him in lashes: in testimony regarding a kohen that he is a chalal, and a ransom payment, and exile, and sale for theft. And even though there is no "as he conspired" in this, our teachers learned all these from the verse "And they shall justify the righteous and condemn the wicked... and it shall be if the wicked one is liable to be beaten" [beginning of Makkot]. Therefore, when they testified regarding those liable for lashes and they lashed him, granted that we cannot obligate them in lashes from "as he conspired," for "as he conspired" excludes "as he has done" as we have written, nevertheless we obligate them because of the negative prohibition of "You shall not bear." For even though it is a negative prohibition that does not involve an act, nevertheless since the verse "And they shall justify" revealed that lashes are relevant to it, we must strike them because of the negative prohibition of "You shall not bear" even though it does not involve an act. Our teachers, the authors of the Tosafot, wrote this reasoning [ibid. 4b, s.v. "VeRabbanan"]. Furthermore, through them an act was indeed performed, for they lashed him.

When they testified against two people regarding a liability for the death penalty, where the death of this one is not like the death of that one, and they were proven to be zomemim—for example, where they testified against Reuven that he committed adultery with a married woman who is the daughter of a kohen, whose judgment is by strangulation and her judgment is by burning—and they were proven to be zomemim, we judge them with strangulation and not with burning. And this matter is also from the Oral Tradition, as it is written: "as he conspired to do to his brother," and we expound: "to his brother," and not to his sister.

Witnesses who testified regarding a treifah man that he killed and were found to be zomemin are not executed, for even if they had killed him with their own hands they would not be executed, since they only killed a treifah. Similarly, witnesses who are treifah who testified, one does not execute based on their word, because it is a testimony that you are unable to subject to hazamah, for those who would render them zomemin would not be executed when they render them zomemin as well, because the zomemin did not seek to kill anything but a treifah. And any testimony that you are unable to subject to hazamah is not testimony in capital cases, as the Rambam wrote in chapter 2 of Laws of a Murderer. And if it happened that witnesses who are treifah testified about someone that he is liable for death by a beit din, and the beit din accepted their testimony because they did not know that they were treifot, and afterwards they were found to be zomemin and it became known that they were treifot, they are not executed; for if their zomemin were to be rendered zomemin, their zomemin would not be executed as I have written, and therefore one does not accept their testimony even regarding the witnesses, for it is a testimony that you are unable to subject to hazamah. And whether in monetary testimony one requires testimony that can be subjected to hazamah, we explained in siman 425. And witnesses who are treifah are not disqualified for monetary matters, and possibly also not for malkot, and it requires further study.

They testified against Reuven that he borrowed a maneh from Shimon on the condition to pay him within thirty days, and Reuven claims that he borrowed for five years and thirty days, and they were found to be zomemim: we estimate how much a person is willing to give to have a maneh in his possession for five years, and they pay this to Reuven, for they sought to cause him to lose this profit. And so too in any similar case. And even if a shemittah passes within this time, we do not say that they should pay him the entire maneh because according to his words the shevi'it would release it; for we maintain that one who lends to his fellow for a time until after shevi'it, the shevi'it does not release it, as I wrote in siman 67. And so too if they testified regarding the ox of this man that it gored, and they were found to be zomemim, they pay chatzi nezek according to what they sought to cause him to lose; and a shor tam only pays chatzi nezek. And if the ox is not worth the chatzi nezek, they only pay the value of the ox alone, for the tam only pays from its body, and they did not seek to cause him to lose more than his ox. But if they testified that it ate fruit or broke vessels in the course of its walking, for this is shen and regel, and they were found to be zomemim, they pay nezek shalem. And so too in any similar case.

Witnesses testified against Reuven that he divorced his wife and is obligated to give her her ketubah, and they were proven to be zomemim. They intended to cause him a loss such that he would pay her her ketubah now, but it is impossible to obligate them for the entire ketubah, for it is possible that in truth he would have needed to pay her today or tomorrow when he dies or divorces her. However, it is possible that he would never have needed to pay, such as if she dies first and he inherits from her. For this reason, the sages said that we appraise how much the woman is able to receive now if she were to sell her ketubah to another person upon the doubt: that if she dies first the buyer will lose, and if he dies or divorces her the buyer will collect the entire ketubah. This sum is deducted for the zomemim and they pay the remainder. The reason is because they did not intend to cause him a loss of this sum at all, for even now after the hazamah, he or another would pay her this sum. Furthermore, we only appraise her ketubah, but her nikhsei melog and nikhsei tzon barzel they do not need to pay him, even though they also intended to cause him a loss of this—for if she dies first the husband inherits everything—nonetheless they can say, "We did not know that she had tzon barzel and melog, and it was not our intention to cause him a loss except for the ketubah," which all women have [according to the explanation of Rashi and Tosafot, Makkot 3a]. Therefore, if they knew she had tzon barzel and melog, we appraise them as well, and they pay him the excess over what she is able to receive now when she sells, in the manner that has been explained [as above]. Similarly, we do not obligate them to pay the woman her sustenance which they intended to cause her to lose by their testimony that he divorced her, for she would profit from her handiwork which would not belong to the husband after the divorce [Tosafot ibid.]. The words of the Rambam, of blessed memory, on this matter are puzzling, as he wrote in chapter 21: We estimate how much a person would want to give for the ketubah of this woman if she were to sell it as a tovat hana'ah, and they pay the value of this tovat hana'ah. We evaluate based on the woman and her ketubah: if she was sick or old, or if there was peace between her and her husband, the value of the ketubah when sold is not like its value if the woman were healthy and young; and if there is a quarrel between them, for this one is closer to divorce and further from death. Likewise, the tovat hana'ah of a large ketubah is not proportional to the tovat hana'ah of a small ketubah, for if her ketubah was a thousand zuz, it might be sold as a tovat hana'ah for a hundred, but if it was a hundred, it is not sold for ten but for less. These matters are according to what the judges estimate. Thus far his words. And they wondered about him: why should they pay him only this small amount that she is able to receive? Behold, they did not come to obligate him for this, and on the contrary, they intended to cause him a loss of all the remainder [Lechem Mishneh]. It appears to me that he holds that for a matter that is based on a doubt, we do not obligate the witnesses at all; rather, we obligate them for this ketubah document found in the woman's hand, for which he does not need to pay anything now, and they obligated him to pay this document. It turns out that they intended to obligate him for the value of this document, so we appraise how much this document is worth for sale, and like this they pay. In the Yerushalmi it is explicitly implied like the words of the Rambam, see there [and also from the wording of the Rosh it is somewhat implied so, and the Tur follows the approach of Rashi and Tosafot, and what our teacher the Beit Yosef wrote that they are like the words of the Rosh refers to the end of his words, so it appears in my humble opinion, and examine it].

A master who knocked out the tooth of his slave or his eye, he goes out to freedom. And if he knocked out his tooth and his eye, he pays him the value of his eye, for with his tooth he went out to freedom, and for the eye he must pay. And if he first knocked out his eye and afterwards his tooth, he pays him the value of his tooth. And it is known that the value of an eye is much more than the value of a tooth. Therefore, if two witnesses testified against someone that he knocked out the tooth of his slave or his eye and they were found to be zomemim, they must pay the value of the slave that they sought to cause him to lose, and we assess for how much this slave would have been sold. And if they testified that he knocked out his tooth and afterwards his eye and they were discredited, they pay the value of the slave they sought to cause him to lose and also the value of the eye they sought to cause him to lose. And likewise, when they testified regarding his eye and his tooth and they were discredited, they pay the value of the slave and the value of the tooth to the master. And if the discrediting was that they said to them, "you were with us," and the event was the opposite—whether others testified this or whether the discrediting witnesses themselves testified that it was the opposite, and nevertheless it was in a manner that the discrediting stands as I wrote in section 5—if they testified that he knocked out his tooth and afterwards his eye and they were discredited that it was the opposite, his eye and afterwards his tooth, they pay to the master the amount that the value of an eye exceeds the value of a tooth. And if they testified that he blinded his eye and afterwards knocked out his tooth and they were discredited that it was his tooth and his eye, they pay to the slave the amount that the value of an eye exceeds the value of a tooth, and so too anything similar to this. And it appears to me that this is specifically when they testified that he already received a get shichrur after the knocking out of his tooth, for if not so, the Rambam ruled in chapter 4 of Chovel that it is a legal doubt whether he pays to the slave, and as we explained in siman 420, see there [and the difficulty of the Ra'avad is answered, and the words of our teacher, the Beit Yosef, are puzzling as the Lechem Mishneh wrote].

If there were two sets of edim zomemim who contradict one another, for example, one set says "you were with us in such-and-such a place" and another set also says to the first witnesses "you were with us in such-and-such a place" which was not the place mentioned by the previous set, it is explained in the Yerushalmi, the first chapter of Makkot, halakha 3, that the one whom the first witnesses testified against is not executed, since the witnesses were refuted (zomemim). Furthermore, the witnesses themselves are not executed, since a contradiction was found in their refutation. And even though two sets of witnesses who contradict one another remove their testimony as if it does not exist, as I wrote in siman 31, and if so, when their testimony is removed we should uphold the testimony of the first ones and execute the one whom they testified against—one cannot say this. For in any place where we remove the testimony, we do not perform an action at all, and we do not extract money based on this contradicted testimony. If so, here too it is the same, that we do not perform any action based on this testimony. And how is it possible to perform an action based on the nullification of the testimony of the refuters, and uphold the testimony of the first ones and execute the one whom they testified against? Is it not a matter of doubt?

The Rambam, of blessed memory, wrote: Witnesses of kinui and stirah who were proven to be zomemim receive malkot. If one witness came and testified that she committed adultery after kinui and stirah, and that witness was found to be a zomem, he pays her ketubah. If there were two who were the witnesses of the kinui, the stirah, and the tumah, and they were found to be zomemim, they pay the equivalent of the ketubah and do not receive malkot. And why are they not executed, given that they testified regarding tumah? Because they did not provide her with a warning. Thus far his words. The explanation of his words is that witnesses of kinui and stirah, even though they cause a loss of money—as they obligate her to drink the bitter waters, and if she does not wish to drink, she loses her ketubah, as is explained in Sotah—nevertheless, we do not obligate them in payment, for a factor that causes a loss of money is not treated like money itself regarding testimony, as is explained in Shevuot [32a] regarding one who adjures witnesses to testify, and as the Rambam wrote in chapter 10 of Shevuot. Therefore, they receive malkot. And witnesses of kinui alone are nothing, and the law of hazamah does not apply to them at all, for kinui without stirah is nothing. However, regarding a witness of tumah, even though the law of hazamah does not apply to a single witness until both are proven zomemim, nevertheless, regarding a witness of tumah after kinui and stirah, whom the Torah believed—if he testified to her tumah and sought to make her lose her ketubah and was proven a zomem, he pays her ketubah as he had conspired. And if there were two witnesses of tumah, they pay between the two of them. And even though two who testified regarding a married woman and were found to be zomemim are liable for the death penalty, that is when they testified that they warned her, for otherwise there is nothing to their testimony. But regarding tumah after kinui and stirah, their testimony is accepted even without warning, for they disqualify her from drinking the waters and cause her to lose her ketubah; therefore, they also pay.

Two who testified against one that he stole and slaughtered or sold, and they were found to be zomemim, they pay fourfold and fivefold just as they sought to obligate him. If two testified that he stole and two others testified that he slaughtered or sold, and they were found to be zomemim: the first set pays the double payment, and the latter set pays twofold and threefold to complete the fourfold and fivefold payment. And if only the latter set was found to be zomemim, the thief pays the double payment based on the first witnesses, and the latter set pays the thief twofold and threefold according to what they sought to obligate him beyond the first set. And if one of the latter set was found to be a zomem, the second testimony is void because there is no status of zomemim except with two, and the first testimony stands and the thief pays the double payment. And if one of the first set was found to be a zomem, the thief is exempt and they are all exempt and the entire testimony is void, for the testimony of the latter set without the first is nothing; for if there is no theft, there is no slaughter and no sale, as he slaughtered and sold his own. And all the more so if the first two were found to be zomemim or were contradicted, the testimony of the latter set is void, and even if the latter set were found to be zomemim afterward, because the entire testimony was already void [Rashi and Kesef Mishneh; and regarding what the Lechem Mishneh wrote from Tosafot Bava Kamma 73a, s.v. "ve-huzmu," I am astonished, for that is regarding one set and not regarding two sets, see there and examine carefully].

Two who testified that he consumed the produce of this field for three years, which are the years of chazaka, and they were proven to be zomemim, they pay the owner of the field the value of the field. And if two witnesses testified that he consumed it the first year, and two regarding the second year, and two regarding the third year, they join together for the testimony of chazaka. And even three brothers and one individual with each of the brothers join together, for they are three testimonies as I wrote in siman 145. And nevertheless, if they were proven zomemim, they all pay; for even though for chazaka they are three testimonies, nevertheless for hazama they are considered as one testimony. And this is specifically when the possessor brought all the witnesses, for if not so, the first two sets could say that the intent of their testimony was to obligate the possessor and that he should return the produce to the protestor, since they only testified regarding two years. But when the possessor brought them, presumably he brought them for his own benefit [Tosafot Bava Batra 56b, s.v. meshalshin]. And regarding the law of three sets of witnesses for a muad ox who were proven zomemim, it was explained with the help of Heaven in siman 389, section 14; see there.

The law of a ben sorer u-moreh is that witnesses must testify that he stole from his father and ate in the manner of a glutton and a drunkard; the first time they lash him, and the second time, when witnesses testify that he did so, they put him to death, as the Rambam, of blessed memory, wrote in chapter 7 of Hilkhot Mamrim. There is no difference whether the latter witnesses were the same ones who testified the first time or other witnesses. Therefore, if witnesses testified the first time and afterwards others testified the second time and both groups were proven to be zomemim, the first group is lashed and not executed, for they only came to have him lashed; even though it is possible they knew that after them another group would come and testify to have him executed, nevertheless they can say, "We came to have him lashed." The second group is executed just as they sought to have him executed. Even if within the second group itself there were two groups—two said, "In our presence he stole," and two said, "In our presence he ate"—and they were proven zomemim, all four witnesses are executed because it is one testimony, for both groups came to have him executed. One should not say: How do these join with those? Is it not a "half-matter," for theft without eating carries no liability, and we hold that we require a "complete matter," as is written in siman 30? For it can be said that since the testimony of theft also serves to obligate him to return the stolen object, it is not called a "half-matter" [Lechem Mishneh].

One who steals a person and sells him is liable for the death penalty, as it is written: "If a man be found stealing a person from his brothers... and sells him... then that thief shall die." And "You shall not steal" in the Ten Commandments is the prohibition against stealing persons, as has been explained in siman 358, section 11. For stealing without selling, one is not lashed for it; even though he violates a negative commandment, nevertheless one is not lashed because it is a negative commandment given as a warning for a death penalty by beit din when he sells him, and one is not lashed for such a negative commandment. Two sets of witnesses, one saying that he stole and one saying that he sold, join together. Therefore, just as if one set testified to the stealing and the selling they are executed when proven to be zomemim, since they sought to make him liable, so too with two sets: whether the witnesses of the stealing were proven zomemim or the witnesses of the selling were proven zomemim, whichever set was proven zomemim is executed. Even if the witnesses of the stealing were proven zomemim, for the stealing is the beginning of the selling, and they are unable to say that they did not come to have him executed but rather to have him lashed, since one is not lashed for it [Sanhedrin 86b]. And it is not to be said that if so, how do we join their testimony, as it would be "half a matter"? For it can be said that since their testimony of stealing is effective to disqualify him from testimony, this is not "half a matter," as has been explained in the previous section [ibid.]. And one should not raise a difficulty according to this: how are the witnesses of the stealing executed? Could they not say, "We came to disqualify him from testimony"? For it can be said that we are witnesses that witnesses do not come for this purpose, but rather to punish him with money, lashes, or death; for if it were to disqualify him from testimony, they should have testified thus: "So-and-so is disqualified from testimony because he stole a person." And some say that in truth, if he was not disqualified from testimony beforehand, they can say so and are not executed [Tosafot ibid., and according to the Rambam who left it unexplained, it must be as has been explained]. If there were only witnesses of selling and not witnesses of stealing, and they were proven zomemim, they are exempt, for even they could not have had him executed with this testimony, as he could say, "I sold my slave." And if we ask them, "If so, for what benefit did you testify?" they can say, "We came to uphold the transaction" [Tosafot ibid.]. And if it is difficult, for they certainly warned him, as otherwise the beit din would not have accepted their testimony, and if so, how can they say that they did not come to have him executed? For it can be said, for example, that others warned him and not the witnesses, as warning does not specifically require the mouth of the witnesses [ibid.], as has been explained in siman 30, section 25. Furthermore, even if the witnesses of the stealing also came after the witnesses of the selling were proven zomemim, and we saw that they gestured to one another such that the matter was recognizable that these knew of those and came to have him executed, nevertheless a gesture is nothing in testimony of capital cases [ibid.], even though in monetary matters it is effective, as has been explained in siman 389, section 14.

The Rambam, of blessed memory, wrote at the end of chapter 21: One who defames his wife—where he brought witnesses that she committed adultery while she was betrothed, and her father brought witnesses and they proved them to be zomemim—behold, the husband's witnesses are executed. If the husband then returned and brought witnesses and proved the father's witnesses to be zomemim, behold, the father's witnesses are executed and they pay money to the husband. They are executed because the husband's witnesses had their verdict for execution finalized by their testimony, and they pay a fine because the owners' verdict to pay a fine was finalized by their testimony, and they are found to be liable for capital punishment to this one and for money to that one. Similarly, two who testified against this person that he had relations with a betrothed maiden and they were proven zomemim, they are executed and do not pay. If he had relations with the daughter of so-and-so and they were proven zomemim, they are executed and pay the fine to her father. If so-and-so buggered an ox and they were proven zomemim, they are stoned and do not pay. If it was the ox of so-and-so, they are stoned and pay the value of the ox to the owner of the ox. And so too with anything similar to this. Thus far his words. The Rambam holds that this principle we establish, that a person does not die and pay, applies when the death and the payment are for one [party]; but when the death is for this one and the payment is for another, behold, these are like two separate matters. And that which he ruled in chapter 8 of Chovel that a pursuer who broke vessels, whether belonging to the pursued or to any person, is exempt—even though there was death for the pursued and payment for any person—this is because the death is also for any person, for behold, it is a commandment upon every person to save the pursued with the life of the pursuer, as is written in siman 425 [Maran]. And that which is written in the Torah regarding one who strikes a woman and her children depart, "and there shall be no tragedy, he shall surely be punished," but if there will be a tragedy he shall not be punished, and even when the killing was unintentional he is exempt from payment, as the Rambam wrote in chapter 4 of Chovel—and behold, the death is for the sake of the woman and the payment is to the husband—it is different there, since the fetters are within her body, it is considered death and payment for one [Tosafot Ketubot 31a]. And that which he ruled in chapter 3 of Geneiva regarding one who threw an arrow on Shabbat and tore his fellow's garment, that he is exempt—even though there is death toward Heaven for the desecration of Shabbat and money toward a person—this is certainly considered like death and payment for one, since there are not two people here [ibid.], for every person is liened to Heaven. And that which he ruled in chapter 14 of Nizkei Mamon regarding a slave bound to a stack of grain and he set it on fire, that he is exempt for the stack of grain—and it implies in the Gemara that even if the slave belongs to one and the stack of grain to another he is exempt [Bava Kamma 22b]—this is also because since he is considered like a pursuer, his death is for every person as has been written. And there are some of our teachers who hold that in every case he is exempt, even with death for this one and payment for another; and only regarding edim zomemim, if the death and payment are for two, we do not adjudicate in this the law of "kim leh bidrabbah mineih" in order to fulfill the commandment of "as he conspired" for each one [Rabbeinu Tam in Tosafot ibid.]. And that which the Rambam wrote, that when the father brought witnesses and proved them zomemim, the husband's witnesses are executed—and why should they not pay the fine of one hundred sela to the father whom they sought to cause a loss by their testimony? For in truth, this is upon the husband to pay, and on the contrary, they caused by their testimony for him to pay, for without testimony and zomemim the husband does not pay one hundred sela, as the Rambam wrote in chapter 3 of Na'arah, that in the portion of defaming a wife there are witnesses and zomemim and zomemim of zomemim, see there [and so wrote Rashi Sanhedrin 9b]. And all this is specifically when the husband had relations with her, for without this there is no liability for a fine, as the Rambam wrote there, for the language of defaming a wife is thus: "If a man takes a wife and comes unto her... and brings an evil name upon her," etc. However, regarding that which the Rambam wrote, "he had relations with the daughter of so-and-so and they were proven zomemim, they are executed and pay the fine to her father," it is very difficult: what fine do they pay? If it is the one hundred sela of defaming a wife, behold, the husband is liable and not the witnesses, as has been explained [Lechem Mishneh]; and also this is only if the father brought witnesses to prove them zomemim. Furthermore, it does not deal with defaming a wife at all, but with witnesses who testified that she committed adultery. And if his intention is for the fifty sela of an anus or mefatteh, behold, this is only for an unattached maiden, or one who was betrothed and divorced, but not for a betrothed woman, for a betrothed woman is subject to stoning, and it is explicitly stated so in the Gemara [Ketubot 38b]. And it appears in my humble opinion that the Rambam, of blessed memory, holds that it is indeed true that the Torah exempted one who has relations with a betrothed woman from a fine—not that a liability is not cast upon him, for he is certainly liable by an a fortiori argument from an unattached maiden—but rather, it exempted him because a person does not die and pay. For since we establish that for one who was betrothed and divorced her fine belongs to herself, as the Rambam wrote there in chapter 2, and we derive "who was not betrothed" to her father, but one who was betrothed and divorced to herself, as is explained in the Gemara there, it is death and payment for one, and therefore he is exempt. And in the Gemara it says that he does not acquire the money with his blood, and there is a liability upon him, except that we do not have the power to obligate him to pay from his pocket when the object is not physically present [Sanhedrin 72a]. And the same applies in every place where there is a liability for death and we exempt him from money: a liability exists upon him, except that we do not have the power to obligate him. And therefore the Sages said [Bava Metzia 91a] that in every exemption that is due to "kim leh bidrabbah mineih," he is liable for payment if he wishes to fulfill his duty toward Heaven. And according to this, granted that we cannot obligate the perpetrator himself to put forth money from his pocket, nevertheless, the witnesses sought to obligate him also for money if he were to seek to fulfill his duty toward Heaven, and the liability would have fallen upon him, except that they would not have extracted it; and perhaps if she had seized [the property] the seizure would be effective. According to this, the witnesses who testified against him and were proven zomemim, it is incumbent upon them to pay also the fine that they sought to obligate him toward Heaven, besides the death [and so it appears from Rashi Ketubot ibid. s.v. "she is subject to stoning," and it is derived from "and there shall be no tragedy"]. And it deals with a case where he raped her according to the words of the witnesses, for in the case of a mefuttah there is no fine in such a case even if she was divorced, since her fine belongs to herself. And the version in the Rambam is "and they pay the fine to the accused," as the Kesef Mishneh wrote that there is this version in the books of the Rambam, and it means to the accused perpetrator whom they sought to obligate. And our teacher, the Kesef Mishneh, rejected this version, and it is a wonder, for on the contrary, how do they pay the father? Behold, they were proven zomemim, and it was the husband they sought to obligate. And know that all these laws are not practiced in this time, and we have no authority to judge any law of capital cases, and all capital cases are judged by the government of the Caesar. The laws of testimony are completed with the help of Heaven.