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Makos, 3

1) DIVIDING THE PAYMENT AMONG THE "EDIM ZOMEMIM"

QUESTION: The Gemara quotes the Mishnah later (5a) which states that we divide a monetary obligation among the Edim Zomemim, but we do not divide an obligation of Malkus among them. The word used by the Mishnah there is "Meshalshin." RASHI offers two explanations for this word. It means either that Beis Din serves as a middleman ("Shelish") to ensure that the three or four witnesses pay equally, or it means that they divide the payment among three ("Shalosh") when there are three witnesses, and the same applies when there are four witnesses -- we divide the payment among the four of them. (See RASHASH and TOSFOS YOM TOV for other explanations of "Meshalshin".) Rashi, in both explanations, says that this Halachah applies whether there are three or four witnesses.

Why does Rashi not say that the Halachah -- that we divide the payment among the witnesses -- applies to the more common case of *two* witnesses? (This indeed is the way RABEINU CHANANEL explains the Mishnah there.)

ANSWER: Rashi's source seems to be the wording of the Mishnah itself. The Mishnah there concludes that with regard to Malkus, when the Edim are found to be Zomemim, "every one of them receives forty Malkus." If the Mishnah is referring to a case of two Edim, it would say "both of them" and not "every one of them." This implies that the Mishnah is teaching that the witnesses split the monetary obligation, but not the Malkus, even when there are more than two Edim.

Why, though, does the Mishnah discuss a case where there are more than two Edim?

The answer to this question might depend on the different explanations in Rashi for the word "Meshalshin."

(a) According to Rashi's first explanation, the word "Shelish" is related to the word "*Hishlish* Es* Shtaro" (Bava Basra 168a), which means to "entrust to a third party." In the case of the Mishnah (5a), it means that the Edim will entrust to the court the money that they are paying, and the court will deliver it to the defendant.

The GEVURAS ARI (5a) asks why do the Edim need to entrust the money to the court in the first place?

The answer might be that even though the Gemara concludes that a single witness must pay his portion of the monetary obligation even when the accompanying witness is not paying, nevertheless -- when both witnesses are paying -- it is better for them to give the entire sum to the defendant at the same time. When there are two witnesses, this would require one of the witnesses to give his share of the payment to the second witness, and then the second witness will hand it over together with his own share to the defendant. However, when there are three or more witnesses, each witness will refuse to give his portion to another witness, claiming, "Why should I give it to you? Perhaps the third witness will refuse to give you his share!" In such a case, the solution is that each witness give his portion to the Beis Din. All of the witnesses will certainly trust the Beis Din, and the Beis Din will certainly ensure that all of the witnesses pay their share of the obligation. Accordingly, it is necessary to be "Mashlish" the money only when there are three or more witnesses. When there are only two witnesses, one will pay his share to the other, who will then pay the entire amount to the defendant. The Mishnah is teaching that even when there are three witnesses, the best method of payment is for each witness to give his portion to Beis Din, who will then ensure that the money is given to the defendant.

(b) The GEVURAS ARI explains why the Mishnah teaches its Chidush with regard to three witnesses, according to Rashi's second explanation for "Meshalshin." The Mishnah later (5b) teaches that even though two witnesses are enough to incriminate a person, nevertheless the third and fourth witnesses in a group of witnesses are also punished for presenting false testimony. We might have thought that even though the payment for Edim Zomemim is divided among the Edim, it would not be appropriate to *lessen* the obligation of the original two witnesses just because they brought with them other witnesses who also testified falsely. Therefore, when there are more than two witnesses, we might have thought that the third and fourth witnesses do not have to pay (or, alternatively, that each additional witness must pay half of the total obligation, just as the first two witnesses must each pay). For this reason it is necessary for the Mishnah to teach that we divide the payment equally even among three or four witnesses.

3b

QUESTIONS: Shmuel says that if a person lends money on the condition that Shevi'is should not be Meshamet (remit) the loan, his condition is not binding, because his condition contradicts a Torah law. The Gemara points out that this contradicts what Shmuel says with regard to Ona'ah (overcharging). Shmuel rules that if a person sells an item to a buyer with the condition that the buyer will not have a claim of Ona'ah against him, the condition is binding and the buyer has no claim of Ona'ah. This implies that a condition that a person makes which contravenes with a law in the Torah is nevertheless valid. The Gemara answers by quoting Rav Anan's qualification of Shmuel's second statement. Rav Anan explains that the condition is valid only when the seller says that he is selling the item "on condition that you have no claim of Ona'ah against me for this sale." If, however, the seller says that he is selling the item "on condition that there is no Ona'ah on this sale" ("Al Menas she'Ein Bo Ona'ah"), then the condition is not binding and the buyer may claim Ona'ah if he is overcharged. The same applies to Shmuel's statement regarding Shevi'is. When one lends money on condition that Shevi'is will not be Meshamet the loan ("Al Menas she'Lo Teshamteni Shevi'is"), the condition is not valid, because the subject of his condition was Shevi'is; when, however, he says that he is lending money "on condition that *you* will not be Meshamet the loan during Shevi'is" ("Al Menas she'Lo Teshamteni b'Shevi'is"), then the subject of the condition is the borrower, and not the Shemitah year, and the condition is valid.

Why is the condition not binding in the case of Ona'ah when the seller says, "Al Menas she'Ein Bo Ona'ah?" RASHI explains that "she'Ein Bo Ona'ah" does not mean that "I want you to forego any claim to Ona'ah." Rather, it means that "I am selling you this item on condition that I am not overcharging you." Consequently, if the seller does overcharge the buyer for the item, then the sale will not be valid, because the condition that he is not overcharging was not fulfilled (and the sale turns out to be a "Mekach Ta'us").

There are a number of difficulties with this explanation of Rashi.

(a) The case regarding Shevi'is, in which Shmuel rules that the condition is not valid, is a case in which the lender says, "I am lending you money on condition that Shevi'is will not be Meshamet the loan." As Rashi explains, the condition is not valid because the lender is trying to make the Torah not apply its law of Shemitah (as opposed to making the borrower agree to return the money). Although the borrower may agree to the condition of the lender, the Torah is not bound by the lender's condition, and thus Shevi'is will certainly take effect. Therefore, when a person says, "I am lending money to you on condition that the Shemitah of the Torah will not take effect," it is the same as saying, "I am lending to you on condition that something impossible will occur," and in such a case we rule (Bava Metzia 94a) that the condition is disregarded and the act (the loan) is upheld.

The reason why the condition regarding Shevi'is is not valid is entirely different than the reason for why the condition regarding Ona'ah is not valid, according to Rashi. In the case of Shevi'is, the condition is not binding because it is an invalid condition that cannot take effect, and thus it is disregarded. In the case of Ona'ah, the condition indeed *is* binding (i.e. the sale takes effect if there is no overcharge), and thus if the buyer finds that he was overcharged, he can claim compensation because of the condition that was made (i.e. the sale does *not* take effect if he was overcharged). The reason why the seller is not protected by his condition (such that the sale should be valid even if there is an overcharge) is because his condition was meant to protect the *buyer* and not the seller.

Why does Rashi explain that the case of "Al Menas she'Ein Bo Ona'ah" is a completely different case than the case of Shevi'is? Rashi should have explained that "Al Menas she'Ein Bo Ona'ah" is *exactly* like the condition regarding Shevi'is. Rashi should have explained that "Al Menas she'Ein Bo Ona'ah" means "on condition that the Torah will not apply the laws of Ona'ah" to an overcharged sell, and -- since the seller cannot tell the Torah what to do -- he is stating an impossibility and the condition is not valid. This in fact is the way that TOSFOS (DH Al) and most of the Rishonim here explain the Gemara.

(b) According to Rashi, what new idea is Rav Anan trying to teach regarding Shmuel's ruling? Rav Anan addresses only the law of Ona'ah and not Shevi'is. He says that Shmuel will agree that the sale is not valid when the seller overcharges in a case in which the seller stipulates that the item is being sold "on condition that I am not overcharging you." It is obvious that the sale will not be valid if the seller overcharges in such a case, because that itself was his stipulation -- the sale should not be valid if he overcharges the buyer. What is Rav Anan teaching by clarifying this point, if it is obvious? (RITVA)

(c) In the case of Shevi'is, when the lender stipulates that he does not want the laws of Shevi'is to take effect on the loan, the condition is not valid because he has no control over what the Torah does, as we mentioned above. According to Rashi, this reasoning is not at all related to the reasoning of Rav Anan, who states that in the case of Ona'ah the sale is not valid when the seller says "Al Menas she'Ein Bo Ona'ah" ("on condition that I did not overcharge you"). Why, then, does the Gemara cite Rav Anan's statement in the first place? The Gemara should say simply that the condition of "Al Menas she'Lo Teshamteni Shevi'is" is not a valid condition! Introducing that statement with Rav Anan's Halachah does not add at all to the Gemara's point. (TOSFOS and RISHONIM)

ANSWERS:

(a) Regarding our first question, Rashi found it necessary to explain the case of "she'Ein Bo Ona'ah" differently than the case of "she'Lo Teshamteni Shevi'is" for the following reason. When the buyer acknowledges that he is being overcharged and agrees to the sale despite the overcharge, the law of Ona'ah does not apply to the sale in the first place. Ona'ah means that it is not permitted to cheat a buyer by overcharging him when he is not prepared to overpay. When the buyer is prepared to pay what he knows is an exorbitant price, the Torah does not apply the laws of Ona'ah to the sale.

With regard to Shevi'is, this is not true. When the borrower agrees that he does not want Shevi'is to be Meshamet the loan, his consent will not change the Halachic status of the loan; Shevi'is will still take effect. However, the borrower will still be required to repay the loan in order to keep his word (but not because Shevi'is was not Meshamet the loan); he made a promise to return the money, and he must keep his promise.

It is because of this that Rashi does not explain the case of "she'Ein Bo Ona'ah" in the same way that he explains the case of "she'Lo Teshamteni Shevi'is." Rashi holds that when a person sells an object on condition that there is no Ona'ah, it is identical to having the buyer agree to forego his right to claim Ona'ah. Once he foregoes his right, the laws of Ona'ah no longer apply to the sale. For this reason, it makes no difference whether the seller phrases the condition as, "I want *you* to forego the laws of Ona'ah," or "I want the laws of Ona'ah not to apply to the sale." He is asking the buyer to agree to whatever is necessary so that the laws of Ona'ah will not apply.

Therefore, it must be that the condition of "she'Ein Bo Ona'ah" is not valid for a different reason. It is not valid because the seller did not say that "I want this to be sold on condition that there are no laws of Ona'ah." Rather, he said, "I want this to be sold on condition that the sale does not involve an overcharge." Since the sale indeed turned out to involve an overcharge, the sale is not valid.

With regard to Shevi'is, on the other hand, when the lender says that "this money is being loaned on condition that Shevi'is is not Meshamet," he cannot mean merely that he wants the borrower to repay the loan, because even if the borrower does agree to repay the loan, his consent will not prevent Shevi'is from being Meshamet it. (M. Kornfeld)

(b) We asked what is Rav Anan teaching -- it should be obvious that the sale will be invalid when the seller stipulates that he is not overcharging when he actually is overcharging. The answer to this question is that when a seller stipulates a condition, we can assume that the condition is being made to benefit himself, and not to benefit the buyer (see Bava Metzia 66a). We might think, therefore, that even when a person says "Al Menas she'Ein Bo Ona'ah" -- "on condition that there is no Ona'ah," he really intends to say that he is selling it on condition that the *laws* of Ona'ah do not apply to the sale (which is the way that Tosfos and other Rishonim interpret these words). As we mentioned above, if the seller would say that, then the condition would be a valid condition and the sale would be valid despite the Ona'ah. Rav Anan is teaching that this is not true; the sale would not be valid. Rav Anan teaches that we do not read anything into the words of the seller, but rather we take them literally. If he says that the sale is on condition that there is no overcharge, then we take it at face value, and, in the event that there is an overcharge, the sale is not valid.

(c) We asked further why the Gemara records Rav Anan's statement as an introduction to the statement of "Al Menas she'Lo Teshamteni Shevi'is." According to what we wrote above, the answer is clear. If we would reinterpret the statement of the seller to his benefit and explain that he means to stipulate that the laws of Ona'ah should not apply, then we would similarly reinterpret the lender's words when he lends money on condition that Shevi'is should not be Meshamet. We would say that he probably does not mean to say that Shevi'is should not be Meshamet, since he cannot tell the Torah what to do, but rather he means to say that he wants the borrower to agree to repay the loan despite the fact that Shevi'is is Meshamet the loan, and his condition *will* be valid. However, now that Rav Anan teaches that we do not read anything into the words of the seller but we take them literally, we must also take the words of the lender literally and understand him to be saying that he does not want Shevi'is to be Meshamet the loan, and thus the condition is not valid since he is stipulating an impossibility.