לזכות ידיד נפשי האהוב ר' שמחה דן גיסינג'ר שליט"א לברכה והצלחה בכל מעשי ידיו יחד עם כל בני ביתו!!
We already saw in a recent post that Rashi holds [as explained by Tosfos עבודה זרה ע"א: ד"ה בן נח] that there is קים ליה בדרבה מיניה for בני נח. We can explain that he holds like the Nemukei Yosef we mentioned previously that executing בני נח also has the status of formal דיני נפשות [just that there is a leniency that he may be killed with one witness and one judge] and according to this קלב"מ applies to a בן נח as well as it does to all דיני נפשות.
However, it would appear that a בן נח doesn't have the same דין as a Jew. With respect to the דין that we require kosher witnesses when the ox of an עכו"ם gores the ox of a Jew, Rebbe Akiva Eiger [בתוס' למשניות ב"ק פ"א מ"ג] writes in the name of the Maharshal in the Yam Shel Shlomo:
"היינו אף דבדיניהם דנין ע"פ עדות עכו"ם, מ"מ כשבאין לפנינו לדון אין דנין אלא בעדות כשרים".
"Even though according to their laws they judge based on the testimony of an עכו"ם, nevertheless when they come for judgment before us, we only judge with the testimony of kosher witnesses".
We see from this a חידוש: This דין that we require kosher witnesses is also a halacha pertaining to the COURTS, because this דין of על פי שנים עדים [requiring two kosher witnesses] includes two elements - A] The litigant requires two kosher witnesses for his case. However that only applies to a Jew but a בן נח doesn't require to witnesses because of the קל וחומר of the N"Y: If for their bodies [i.e. capital punishment] one witness suffices, the most certainly for their money. B] The courts have to judge based on kosher witnesses. Regarding this element it doesn't matter who the litigant is. Because this is a דין that devolves on the בית דין that they must judge based on two witnesses. Therefore, when the ox of an עכו"ם gores the ox of a Jew, they have to judge with two kosher witnesses.
With this line of thought we can explain the approach of Rashi regarding קלב"מ - He definitely holds that that this פרשה was stated regarding Jews alone and not Gentles. But this is only with respect to the litigants, that they have an exemption from paying monetary obligations when there is a death penalty. This exemption applies only to Jews and not Gentiles. But then we have a pasuk "לא יהיה אסון" - if there is no "tragedy" i.e. killing, then there is a monetary obligation. And Chazal expound that if there IS an אסון and someone dies then he need not pay, which includes another חידוש with respect to the courts, that they don't give a double punishment. In that case there is no distinction who the litigant is but rather it is a דין that applies to the courts that they only mete out one punishment and not two. Because of this, Rashi holds that the דין of קלב"מ applies to an עכו"ם, that stems from the fact that בית דין doesn't require a monetary obligation where the litigant is killed.
To be continued בל"נ....
