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Makkos Chapter 1, Mishnah 3: Malkos, Kashas Zamam, and Combining Punishments

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Before us is Mishnah 3 in the first chapter of Maseches Makkos. In the previous Mishnah we examined the dispute between Rabbi Meir and the Chachamim: when a conspiring witness (eid zomem) receives 'ka'asher zamam' - that is, the very punishment he sought to bring upon his fellow - does he also receive lashes for having violated the prohibition of "lo sa'aneh ve'rei'acha eid shaker," or does he not? That same dispute appears again in our Mishnah.

The words of the Mishnah and their explanation:

  • "Me'idin anu be'ish peloni she'hu chayav malkos arba'im" - the witnesses testified about a certain man that he is liable to receive forty lashes.

  • "Ve'nimtze'u zomemin" - it became clear that they were false witnesses.

  • "Lokin shemonim" - eighty lashes, meaning in practice two sets of thirty-nine.

  • "Mishum 'lo sa'aneh ve'rei'acha eid shaker'" - this set of lashes comes for the violation itself of the prohibition against giving false testimony.

  • "U'mishum 'va'asisem lo ka'asher zamam'" - and this set of lashes comes because they receive exactly what they sought to do to their fellow.

  • "Divrei Rabbi Meir" - this is the view of Rabbi Meir, consistent with his position in the previous Mishnah: the witnesses are punished for both matters together - for 'ka'asher zamam,' whose punishment in this case is lashes, and for the violation of the prohibition.

"Va'chachamim omrim: ein lokin ela arba'im" - in the opinion of the Chachamim the witnesses receive only forty lashes, by virtue of the law of conspiring witnesses, and there are no separate lashes for the prohibition of "lo sa'aneh."

"Meshalshin be'mamon ve'ein meshalshin be'makkos":

The Mishnah continues and establishes a further rule: with a monetary punishment several witnesses can be combined and the obligation divided among them, whereas with a punishment of lashes there is no dividing. "Keitzad?" - how does this principle express itself?

"He'idu she'hu chayav la'chaveiro masayim zuz ve'nimtze'u zomemin - meshalshin beineihen" - if two witnesses testified about a certain man that he owes his fellow two hundred zuz and they were found to be conspiring witnesses, the obligation is divided between them. The term "meshalshin" fits three witnesses who divide the sum into thirds; in our case, where there are only two witnesses, the obligation is divided in two.

The essential principle is that money combines into a complete whole. If two witnesses testified that a certain man owes one hundred, and each of them pays fifty, the intended victim receives the full hundred. Even though each of the witnesses sought to cause him a loss of a full hundred, it is enough that he receives a hundred from the two of them together in order to fulfill 'ka'asher zamam' in them.

"Aval im he'idu she'hu chayav malkos arba'im ve'nimtze'u zomemin - kol echad ve'echad lokeh arba'im" - witnesses who testified about a certain man that he deserves lashes and were found to be conspiring witnesses, each one of them receives the full forty. We do not say that the two of them should divide the punishment, because lashes do not combine into a complete whole: half of forty from this one and half of forty from that one do not bring upon the intended victim what they sought to do to him.

In summary: in this Mishnah we learned the dispute between Rabbi Meir and the Chachamim regarding witnesses who testified to a liability of lashes and were found to be conspiring witnesses - according to Rabbi Meir they receive eighty lashes, for "lo sa'aneh" and for "ka'asher zamam," while according to the Chachamim they receive only forty. We also learned the rule of "meshalshin be'mamon ve'ein meshalshin be'makkos": money combines among the witnesses into a complete sum, and therefore it is divided among them, whereas lashes do not combine, and therefore each and every one receives forty.