The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Makkot 2a-b: Introducing Masechet Makkot
Masechet Makkot appears immediately after Masechet Sanhedrin, and effectively completes it. In contrast with the first tractates in Seder Nezikim whose focus is on civil law, both Sanhedrin and Makkot deal with issues of criminal law and the punishments meted out by the courts in response to individuals who transgress Torah law. While Masechet Sanhedrin dealt with severe crimes, including those where capital punishment was the appropriate sentence, Masechet Makkot (lashes) – as its name indicates – focuses on less severe crimes, whose punishments are less harsh.
The first Mishnah in Masechet Makkot deals with a situation of eidim zomemim – false witnesses whose testimony will condemn the accused to receive punishment, even though they could not have been at the scene of the incident, given that others testify that these witnesses were with them in another place at the time that the crime took place. According to the Torah (see Sefer Devarim 19:15-21), the punishment for eidim zomemim is that they will receive the punishment that would have been given to the defendant based on their testimony. Our Mishnah teaches that this is not always the punishment that is given. In cases where the false testimony accused the defendant of something that would change his personal status – e.g., having questionable parenthood – we would not change the personal status of the eidim zomemim, rather they would receive lashes as a punishment.
The Ritva asks why Masechet Makkot begins with an analysis of eidim zomemim rather than the laws of malkot (lashes) that appear to be the central concept of the tractate, which do not appear until the third perek. The obvious answer – that is hinted to in the Gemara – is that this Mishnah is the continuation of the Mishnayot in Masechet Sanhedrin where the various punishments of the Jewish courts are discussed, and the law of eidim zomemim is mentioned at the end of the tenth chapter (see Sanhedrin daf 84 where we learned that in many versions of the Talmud, that chapter was at the very end of Masechet Sanhedrin) .
Some even suggest that originally Masechet Makkot was part of Masechet Sanhedrin and that they were only separated at a later date.
Makkot 3a-b: Can a person make a condition that negates a Torah obligation?
Can a person make a condition that negates a Torah obligation?
Although in the Mishnah (Ketubot 84a) Rabbi Shimon ben Gamliel rejects such a possibility, some suggest that in situations that are purely monetary we may say tenai she-be-mammon kayyam – making a condition on a Torah law that has to do with money is acceptable.
One example that is brought by the Gemara is the case of ona’ah (unfair business practices). According to the Torah (See Vayikra 25:14, 17) business transactions must be fair and one side cannot take advantage of another. Thus, overcharging or underpaying is forbidden by the Torah, and the forbidden profits will need to be returned or the transaction voided. What would be the halacha if someone said to his friend “I am selling this to you on the condition that the rule forbidding ona’ah does not apply”? Here we find a disagreement between Shmuel who permits such a condition, permitting the sale and Rav who insists that ona’ah still applies.
The source for this discussion of ona’ah appears on today’s daf. In truth, it is not only a question of whether a person can make an agreement to dispense with the rules of the Torah with regard to money matters, but also a more basic question of how to define the law of ona’ah. Some argue that ona’ah has two sides to it. On the one hand there is a question of money, on the other hand there are elements of issur – of forbidden practices – involved, as well. It is therefore possible that even if a person can choose to forgo the Torah rules with regard to money, his agreement to forgo the rule of ona’ah will have no legitimacy because of the issur involved.
According to the Rambam (Hilkhot Mechira 13:3) and the Shulchan Aruch (Choshen Mishpat 227:21), even though a person cannot make a condition that ona’ah does not apply, if he clearly states the true value of the item at the time of sale and explains that the price that he is demanding is out of line with its cost in the marketplace, the buyer can choose to purchase the item without the rules of ona’ah applying.
Makkot 4a-b – Punishing false witnesses
As we have learned, Masechet Makkot opens with a discussion of eidim zomemim – false witnesses whose testimony will condemn the accused to receive punishment. Others come and testify that these witnesses were with them in another place at the time that the crime took place, proving that they could not have been at the scene of the incident. According to the Torah (see Sefer Devarim 19:15-21), the punishment for eidim zomemim is that they will receive the punishment that would have been given to the defendant based on their testimony.
Aside from the unique punishment that the false witnesses receive for being eidim zomemim, will they be punished separately for transgressing the prohibition of lo ta’aneh be-rei’achah ed shaker (Shemot 20:13) – the biblical prohibition against testifying falsely?
In the Mishnah on today’s daf we find a disagreement between Rabbi Meir and the Chachamim on this point. Rabbi Meir believes that these are two separate issues and that the eidim zomemim will pay – if their testimony would have made the accused pay – and receive lashes for their false testimony. Similarly, if the testimony of the eidim zomemim would have made the accused receive lashes as a punishment, then they will receive two sets of lashes – one set because they will get what they tried to force on the other and the other for the sin of false testimony. The Chachamim rule that in both situations the eidim zomemim will not receive two punishments.
The Gemara explains that according to the Chachamim, Torah law does not allow two punishments for the same act (see Masechet Ketubot daf 31, daf 32 and daf 33). This is based on the passage in Sefer Devarim (25:2) that is understood to require a single punishment, and no more than that. Tosafot point out that in truth, Rabbi Meir agrees to this; he limits it, however, to situations where the sinner is liable for a death penalty and lashes. In other situations, e.g. where the punishments would be payment and lashes, he rules that both punishments can be carried out.
Makkot 5a-b: Different types of false witnesses receive different punishments
The Mishnah on today’s daf offers a greater insight into the rules of eidim zomemim – false witnesses.
According to the Mishnah we need the second group of witnesses to deny the eidim zomemim themselves, and not simply negate their testimony. Thus, if the second group of witnesses come to court and insist that the testimony of the first witnesses cannot be true because the accused was with them at that time, or because they saw the incident and it happened differently than the way it was described by the first group of witnesses, then we discount the testimony. Such witnesses are called eidei hakchashah – witnesses who refute testimony – and recognizing that there are different versions of the story we discount them both. Neither the accused nor the witnesses will be punished.
In order for witnesses to be considered eidim zomemim who will receive the punishment that would have been given to the accused had he been convicted based on their testimony, the second group of witnesses must testify that they cannot be telling the truth because they were with them at the time of the alleged crime. This rule is not explained by the Mishnah or the Gemara; it is a gezeirat haKatuv – a biblical ordinance.
Another unique rule in the laws of eidim zomemim is that the punishment is only applied to the false witnesses if it has not been carried out on the accused. If, however, he was already killed or already received lashes based on their testimony, then they will not receive that punishment. According to the Gemara the source for this is the passage in Sefer Devarim (19:20) that requires the court to give the eidim zomemim the punishment that they wanted the accused to receive – not the punishment that he was actually given.
In his commentary on the Torah the Ramban explains this rule as stemming from the belief that God would not allow an innocent man to be punished in this way, so if he received the punishment it is an indication that he really did deserve the punishment. The Abarbanel suggests that this law protects the court, and keeps the people from saying that the court cannot make up its mind and puts innocent people to death.
Makkot 6a-b: Language clarity in the courtroom
In the multi-cultural world that we live in today, it is common practice for a judge to arrange to have a translator in the courtroom to clarify the words of a witness or of one of the litigants in a court case. It is somewhat surprising to learn in the Mishnah on today’s daf that translators were not allowed in the courtrooms of the Mishnah. While Rabbi Yossi learns from the biblical statement al pi shnayim eidim (Devarim 17:6) that the witnesses must warn the accused of the consequences of his actions, another approach to that pasuk is to learn that the judges must hear – and understand – the words of the witnesses, and they may not rely on the words of a translator.
It is not clear whether this ruling is meant to be an actual biblical law based on the pasuk in Sefer Devarim, or if the biblical passage is brought simply to offer support to a rabbinic dictum. Even without a clear biblical source there are a number of reasons to disallow translators:
Can we be certain that the translator is offering an accurate statement that fully reflects the intention of the witness?
Will the court be able to properly cross-examine the witness if they cannot understand what he says?
In general we do not allow hearsay evidence – ed mi-pi ed – (a witness who testifies based on what he heard from another witness rather than based on what he actually saw). Would the statement of the translator be considered ed mi-pi ed?
The Rambam (Mishnah Torah, Hilkhot Sanhedrin 21:8) rules that the court must be able to understand the litigants and the witnesses, although the judges can respond and offer their ruling by means of a translator, if necessary. The Sema adds that today it is commonplace for litigants to accept upon themselves the procedures of the courtroom, and if they do so they effectively accept the participation of a translator if the court feels that there is a need for one.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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