Talmud - Makkot 2b מכות ב׳ ב׳

If one who stones another, i.e., who testified that another is liable to be executed via the death penalty of stoning and was rendered a conspiring witness after that person was executed, is not stoned, as the halakha is that conspiring witnesses receive the punishment that they conspired to have inflicted and not the punishment that they actually had inflicted, then with regard to a conspiring witness who came to stone another and was unsuccessful and did not stone him, as he was rendered a conspiring witness before that person was executed, isn’t it logical that he should not be stoned? The Gemara concludes: Rather, it is clear as we answered initially: “And you shall do to him as he conspired”; this should be done to him, but not to his offspring.

§ The mishna teaches that in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be punished with exile, one does not say that these witnesses shall be exiled in his stead; rather, they receive forty lashes. The Gemara asks: From where is this matter derived? Reish Lakish says: It is derived from a verse, as the verse states with regard to an unwitting killer: “And he shall flee to one of the cities” (Deuteronomy 19:5), and the Gemara infers: He shall flee, but conspiring witnesses shall not.

Rabbi Yoḥanan says: It is derived through an a fortiori inference: If the killer, who performed an action that, had he done so intentionally, he would not be exiled for it even if he were not sentenced to death, e.g., because there was no forewarning, then in the case of the conspiring witnesses, who did not perform an action, as their conspiracy was exposed and their testimony rejected, even if they testified intentionally, isn’t it logical that they should not be exiled?

The Gemara challenges: But that distinction provides support to the contrary. Could this not be derived through logical inference? With regard to one who performed an action, i.e., killed a person, if he did so intentionally, let him not be exiled so that he will not have atonement for his action, and he will instead receive harsh punishment at the hand of Heaven. With regard to the conspiring witnesses, who did not perform an action, even if they testified intentionally, let them also be exiled so that they will have atonement for their misdeed. The Gemara concludes: Rather, it is clear in accordance with the explanation of Reish Lakish: “And he shall flee to one of the cities”; he, but not conspiring witnesses.

§ Ulla says: From where is an allusion in the Torah to conspiring witnesses derived? The Gemara asks: Is an allusion to conspiring witnesses required? But isn’t it written explicitly: “And you shall do to him as he conspired” (Deuteronomy 19:19)? Rather, Ulla’s question is: From where is an allusion in the Torah to the halakha that conspiring witnesses are flogged in certain cases derived? It is derived from that which is written: “If there is a quarrel between people and they come to judgment, and the judges judge them, and they vindicated the righteous and condemned the wicked, and it shall be if the wicked is deserving of lashes” (Deuteronomy 25:1–2). Ostensibly, this verse is difficult: Is it due to the fact that “they vindicated the righteous” that they “condemned the wicked, and it shall be if the wicked is deserving of lashes”? In most disputes, the fact that one party is vindicated does not necessarily lead to lashes for the other party.

Rather, the verse is addressing the case of witnesses who, through their testimony, condemned the righteous, and other witnesses came and vindicated the original righteous person and rendered these first set of witnesses wicked conspiring witnesses. In that case, the verse states: “And it shall be if the wicked is deserving of lashes,” indicating that lashes are an appropriate punishment for conspiring witnesses.

The Gemara asks: And why not derive the halakha that conspiring witnesses are liable to receive lashes from the prohibition: “You shall not bear false witness against your neighbor” (Exodus 20:13)? The Gemara answers: One is not flogged for violating that prohibition, due to the fact that it is a prohibition that does not involve an action, as one violates it through speech, not action, and the principle is: For every prohibition that does not involve an action, one is not flogged for its violation. Therefore, it was necessary to derive the halakha from the verse: “And they vindicated the righteous.”

§ The Sages taught in a baraita: Four matters were stated with regard to conspiring witnesses, i.e., there are four cases in which their punishment deviates from the norm. They are not rendered the son of a divorced woman or the son of a ḥalutza; they are not exiled to a city of refuge; they do not pay the ransom if they testified that the forewarned ox of someone killed another; and they are not sold as a Hebrew slave in a case where they testified that one stole property and he would be sold into slavery if he lacked the means to repay the owner. The Sages said in the name of Rabbi Akiva: They also do not pay based on their own admission. If they were rendered conspiring witnesses in one court, and before that court managed to collect the payment that they owed, they appeared in a different court and admitted that they had been rendered conspiring witnesses, they are exempt from payment.

The Gemara elaborates: They are not rendered the son of a divorced woman or the son of a ḥalutza, as we stated and explained earlier. And they are not exiled to a city of refuge, as we stated and explained earlier. And they do not pay the ransom, as these Sages hold that the ransom paid by one whose ox killed another is atonement for him, as he is liable for the actions of his animal, and it is not payment of damages. And these conspiring witnesses are not subject to a need for atonement, as their ox did not kill anyone.

The Gemara asks: Who is the tanna who taught that the ransom is atonement? Rav Ḥisda says: It is Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, as it is taught in a baraita with regard to the verse concerning a case where the ox of one person gored another: “If ransom is imposed upon him, and he shall give the redemption of his soul” (Exodus 21:30); the term “his soul” means the value of the victim, i.e., the owner of the ox must pay the heirs of the deceased his value as it would be assessed were he sold as a slave in the market. Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: The term “his soul” means the value of the one liable for the damage. What, is it not that they disagree with regard to this principle: That one Sage, the Rabbis, holds that the ransom is monetary restitution for the damage that his ox caused the victim; and one Sage, Rabbi Yishmael, holds that the ransom is atonement, as he thereby redeems his own soul from death at the hand of Heaven?

Rav Pappa says: No, perhaps everyone agrees that the ransom is atonement, and here, it is with regard to this matter that they disagree: One Sage, the Rabbis, holds that we assess the payment in terms of the value of the victim; and one Sage, Rabbi Yishmael, holds that we assess the payment in terms of the value of the one liable for the damage.

The Gemara asks: What is the reason for the opinion of the Rabbis, who abandon the straightforward meaning of the verse? The Rabbis derive it in the following manner: Imposition is stated below with regard to one whose ox killed another: “If ransom is imposed upon him” (Exodus 21:30), and imposition is stated above, in the case of one who struck a pregnant woman, causing her to miscarry: “He shall be punished, as the husband of the woman imposes upon him” (Exodus 21:22). Just as there, with regard to the miscarriage, it is in terms of the value of the victim, the fetus, that we assess the payment, here too, in the case of the ransom, it is in terms of the value of the victim that we assess the payment.

And Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: “And he shall give the redemption of his soul” is written, indicating that the sum is based on the value of the one seeking atonement. And the Rabbis explain: Yes, the phrase “redemption of his soul” is written, and the payment functions to redeem his soul. Nevertheless, when we assess the sum of the redemption payment, it is in terms of the value of the victim that we assess the payment.

§ The baraita teaches: Conspiring witnesses are not sold as a Hebrew slave in a case where they testified that one stole property. Rav Hamnuna thought to say: This statement applies only in a case where the falsely accused has means of his own to repay the sum of the alleged theft, as since, had the testimony been true, he would not have been sold for his transgression, the witnesses too are not sold when they are rendered conspiring witnesses. But in a case where the falsely accused does not have means of his own, and would have been sold into slavery had their testimony been accepted, even if the witnesses have means of their own, they are sold, as they sought to have slavery inflicted upon him.

Rava said to him: And let the witnesses say to the person against whom they testified: If you had money, would you have been sold? We too will not be sold. Since they have the means, they can pay the sum that they owe and not be sold as slaves. Rather, the Gemara proposes an alternative formulation of the statement of Rav Hamnuna. Rav Hamnuna thought to say: This statement applies only in a case where either he, the falsely accused, or they, the witnesses, have the means to pay the sum; but in a case where neither he nor they have the means, the witnesses are sold. In that case, had their testimony stood, the alleged thief would have been sold into slavery, and they too lack the means to pay the sum that they are liable to pay as conspiring witnesses. Therefore, they are sold. Rava said to him: That is not so, as the Merciful One states: “And he shall be sold for his theft” (Exodus 21:30), from which it is inferred: For his theft, but not for his conspiring testimony.

§ It is taught in the baraita: The Sages said in the name of Rabbi Akiva: They also do not pay based on their own admission. The Gemara explains: What is the reason for the opinion of Rabbi Akiva? He holds that money paid by a convicted conspiring witnesses is a fine [kenasa], and the principle is: One does not pay a fine based on his own admission; one pays a fine only on the basis of testimony. Rabba says: Know that it is a fine, as these witnesses did not perform an action and caused no actual damage, and yet they are executed or pay depending on the nature of their testimony, indicating that it is a fine rather than a monetary restitution. Rav Naḥman says: Know that it is a fine rather than a monetary restitution for damages, as the money they sought to compel him to pay ultimately remains in the possession of the owner against whom they testified, and yet they pay him.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Makot 2b explores the punishment of conspiring witnesses in cases of exile and stoning, contrasting their liability with that of an actual killer.