Tuesday, May 14, 2019

Kim Lei In The Punishment Of Eidim Zommemin - Part 4

What emerges from what we said is that the punishment of מלקות of עדים זוממין and doesn't require the normal conditions for punishments but rather it is "המשכת החיוב" -  the drawing of the obligation of the falsely accused on to the accuser. 

According to this it would appear that we can offer another explanation [different from what we said earlier in the name of the Shaar Hamelech] for Tosfos that we mentioned earlier who says that when עדים זוממין testified about someone they falsely accused of being מוציא שם רע on his wife and wanted to make him liable to מלקות and ממון, they too are liable to both מלקות and ממון since "רצו לחייבו שניהם" - they wanted to make him liable to both [even though normally the rule is אין לוקין ומשלמין - we don't give two punishments]. What they mean is that the very basis and foundation for the punishment of the עדים זוממין is what and how they wanted to make the accused liable, therefore we can't say אין לוקין ומשלמין. That rule applies to regular punishments where we are guided by the principle "משום רשעה אחת אתה מחייבו ואי אתה מחייבו משום שתי רשעויות" - for one act of evil we obligate him and not two, so only one punishment allowed. But when it comes to מוציא שם רע where the accused would have received two punishments, that liability is transferred to the עדים זוממין, who then automatically will receive the dual punishment.   

According to this explanation we can understand the Raavad who said that if someone steals and eats  חלב, he has to pay כפל, and we are no longer troubled by the question we asked, that it is עדות שאי אתה יכול להזימה [because they would have to receive a dual punishment, for the stealing and the eating and since we can't mete out two punishments this עדות is not "hazama-ble"] and thus invalid עדות. For according to our analysis, in a case where they plotted to obligate the accused in two punishments - they would also receive the duo. The punishment of the עדים זוממין is an anomalous case where we don't consider it like a classical scenario of "משום רשעה אחת אתה מחייבו ואי אתה מחייבו משום שתי רשעויות" because it is not about the "רשעה" - sin, but rather המשכת החיוב of the accused. Since he would get both - the עדים do too. Therefore, this עדות can be "hazama-sized" and is thus kosher!! 

[עפ"י תורת הגאון רבי חיים שמואלביץ זצ"ל]