Makkot 3a (ג.) — the Talmud in English

The Gemara analyzes: Regarding Rav Naḥman’s statement, “Know that the money is in its owner’s possession, and they pay” —

what does this mean?

What is the meaning of his words? —

That they did not yet perform

the witnesses

an act,

because the court did not remove money from the defendant on the basis of their testimony.

And if so, Rav Naḥman’s words are actually

exactly what

he said,

Rabba!

And we explain: Indeed, that is so. Therefore,

say

the following:

And Rav Naḥman likewise said —

in accordance with Rabba.

Rav said: A conspiring witness

pays according to his share.

The Gemara analyzes:

What

is the meaning of

“pays according to his share”?

If you say

that the witnesses divide the payment,

this one,

the first witness,

pays half

of the sum that they sought to cause the defendant to lose,

and this one,

the second witness, also

pays half —

this halakha

we already learned,

as we will learn below (5a):

The monetary payment is divided among them.

That is, the payment for their conspiracy is divided among the witnesses: If there were three witnesses, each pays one-third, and if there were four, each pays one-quarter.

But

however,

the lashes are not divided among them.

The lashes that they conspired to impose upon the defendant are not divided among the witnesses; rather, each one receives all the lashes that they conspired to impose [and the reason is explained there in the Gemara].

Rather,

necessarily, Rav’s intention when he says that a conspiring witness pays according to his share is

in a case where only one of them was found to be conspiring,

only

one of them,

of the two witnesses, and Rav says

that he pays,

the one witness who was found to be conspiring,

his half,

half of his payment.

We challenge this interpretation:

Does he pay

any payment for his conspiracy when only he was found to be conspiring?

But it was taught in a baraita: A conspiring witness does not pay money —

until both of them are found to be conspiring!

And how, then, did Rav say that he pays according to his share?

Rather,

Rava said:

Rav did not state his ruling with regard to a witness who was ultimately found to be conspiring, but with regard to a witness who himself retracts his testimony,

saying: “I testified falsely!”

This is referring to a case in which he contradicted his testimony in the language of hazama, stating that he had not been in that place on that day, and Rav says that a witness who admitted that he had conspired to harm the defendant pays his share. For it is not necessary that both witnesses be found to be conspiring except when they are discredited by other witnesses.

The Gemara challenges Rava’s interpretation:

Is that within his power?

Can he really do such a thing!?

Can a witness who testified retract his testimony and thereby exempt the defendant from payment?

But we have established:

Once he has testified,

the witness has given his testimony,

he may no longer testify differently!

He cannot regret his testimony and now say that his testimony was not true.

Although the witness is liable to pay the defendant under the law of dina de-garmei for causing him a loss—for he cannot retract his testimony, and the testimony remains in force and obligates him to pay—the Gemara’s question concerns the wording: Why did Rav obligate him only as a conspiring witness? The Gemara argues that he should not be liable on this basis, because since the witness cannot retract his testimony, it is already considered “as he did,” and he should not become liable under the law of conspiracy [Ritva]. Rather,

the Gemara establishes Rav’s statement that a conspiring witness pays according to his share in a different manner:

When he says,

the witness:

“We testified

I and my colleague

falsely,

and both of us were found to be conspiring

in the court of so-and-so.”

in

The second witness does not admit this. Therefore, only the witness who admitted pays according to his share.

And we challenge this:

In accordance with whom,

if so, are Rav’s words? —

Necessarily, they are

not in accordance with Rabbi Akiva,

but in accordance with the opinion of the Sages!

For if they are in accordance with Rabbi Akiva, he said

Rabbi Akiva above:

Even

a conspiring witness

does not pay on the basis of his own admission!

And according to him, when the witness admits that he was found to be conspiring, he is not liable to pay according to his share.

Rather,

if we wish to establish Rav’s statement so that it does not contradict Rabbi Akiva’s words, we must establish it

in

a case where the witness

says: “We testified, and we were found to be conspiring in the court of so-and-so, and

we were already

held liable

to pay

money

to the defendant whom we conspired to cause to be held liable.”

to the defendant whom we had plotted to make liable.

Once the court held them liable, it became a monetary debt rather than a fine, and therefore he becomes liable on the basis of his own admission.

Rav had to teach us that here he becomes liable through his admission even though a monetary debt already rests upon them.

For it might have entered your mind to say:

Since, with regard to his colleague,

he is not believed through his admission, and

he cannot impose liability upon him,

a monetary obligation, therefore it might have been thought that

he too is not liable,

because there is no obligation to pay unless the entire amount of the conspiracy is paid.

Therefore,

Rav teaches us

that the witness who admitted that he was found to be conspiring and that he had become liable for a monetary payment pays his share.

Mishna:

Conspiring witnesses who said:

“We testify concerning so-and-so that he divorced his wife

in our presence on such-and-such a day, in such-and-such a place,

and did not give her payment of her marriage contract.”

It must be determined how the conspiring witnesses will pay for their conspiracy to obligate him to pay the ketuba.

And her husband says: “I did not divorce her, and I did not become obligated to pay her marriage contract.”

And other witnesses came and discredited the first witnesses as conspiring witnesses, saying to them: “On that day you were with us in another place.”

It must be considered how the conspiring witnesses will pay for their conspiracy to cause him to pay the marriage contract.

For it is impossible to say that they should pay the husband the full value of the marriage contract. For —

Does he not perhaps

die or divorce her

either today or tomorrow? And in that event,

ultimately

the husband

will give her the marriage contract.

It follows that in that event they did not cause him any monetary loss through their testimony, and it is impossible to hold them liable.

Rather,

the court appraises:

How much a person would be willing to give

now

for this woman’s marriage contract,

in order to purchase it at a reduced price, since by purchasing the marriage contract he assumes the risk of losing his money —

For if

in the future

she is widowed

by her husband

or divorced

from him, then the purchaser will profit, as he will collect the full value of the marriage contract in place of the woman.

But

in the event

that she dies

before her husband,

her husband will inherit her,

and then the purchaser will lose his money.

The Mishna does not explain how this appraisal is calculated or with what monetary payments the conspiring witnesses are held liable on the basis of this appraisal, and the amoraim disagree about the matter.

Gemara:

We learned in the Mishna: The court appraises how much a person would be willing to give for her marriage contract.

The Gemara is uncertain:

How is it appraised?

How do they assess the loss of the marriage contract that the conspiring witnesses must pay to the husband?

The Gemara’s uncertainty is based on the fact that a woman’s marriage contract has monetary value [even before divorce or death], both for the husband and for the woman.

The husband

can sell to another person, at a reduced price, the land that he designated for her marriage contract. The purchaser assumes the risk that if the husband dies or divorces his wife, the woman will receive the land and he will lose his money. On the other hand, if the woman dies before the husband, the land will belong to him from the moment the husband sold it to him.

The purchaser who buys the land from the husband gains two things: First, he buys the land cheaply. Second, he is entitled to consume the produce of the land from the time the husband sells it to him.

The woman

can sell her marriage contract at a reduced price, on the condition that if her husband divorces her or dies during her lifetime, the purchasers will acquire her marriage contract.

The husband himself can likewise purchase his wife’s marriage contract from her.

It is customary for purchasers who acquire marriage-contract rights cheaply to pay the husband for the land designated for the marriage contract a higher payment than they pay the woman when they acquire her rights in the marriage contract.

For it is preferable for them to purchase from the husband the land designated for her marriage contract rather than to purchase her marriage contract from the woman, for two reasons:

A. One who purchases from the husband immediately gains the right to consume the produce of the land designated for her marriage contract, since in the meantime the right to consume the produce belongs to the husband, and he can sell it to another person.

But one who purchases the marriage-contract rights from the woman has no right whatsoever to consume the produce.

B. One who purchases from the husband immediately becomes the possessor of the land, and if he ultimately acquires it [if the woman dies during the husband’s lifetime or he divorces her], he will not need to take it from her heirs, since he already possesses it. But if he purchases from the woman, then even if the husband dies during her lifetime or divorces her, the purchaser will have to come and take the land from the husband or his heirs.

Therefore, for example, if when the purchaser comes to buy the marriage contract from the woman he pays her forty percent of its value, then he pays the husband fifty percent of the value of the land designated for the marriage contract.

The husband likewise has two options:

The first is

to sell

the land designated for her marriage contract to other people and

receive

for it a reduced price [as stated, fifty percent of the value of the land].

The second is

to purchase

his wife’s marriage contract for himself and

pay

her for it a reduced price [as stated, forty percent of the value of the marriage contract].

In light of this, there are several possibilities for how to assess the loss in the value of the marriage contract that the conspiring witnesses sought to cause the husband.

The first is to assess the loss of the husband’s right to sell now the land designated for her marriage contract and its produce. Accordingly, they would have to pay him fifty percent of the value of the marriage contract, since he had the right to obtain this amount, and they sought to cause him to lose it.

The second is to assess the price at which people are willing to purchase the marriage contract from the woman. The husband himself is also willing to purchase the marriage contract from her at that price, which, as stated, is forty percent, and the conspiring witnesses did not seek to cause him to lose this amount, since he himself was willing to pay it. Therefore, forty percent must be deducted from the value of the marriage contract, and it follows that they must pay the husband sixty percent.

A third possibility is to assess, in addition to the above, the husband’s right to consume the produce of the melog property of the woman [since the husband has the right to consume all the produce of the woman’s property, including property that she did not bring to him as part of her dowry, which is called “nikhsei melog”], because the conspiring witnesses also conspired to cause him to lose from now on the right to consume the produce of the melog property.

Rav Ḥisda said:

They appraise

with regard to the husband.

The assessment of the damage follows the first possibility: They appraise the money that the husband could have obtained now had he sold the land designated for her marriage contract, since that money was in his possession, and they sought to cause him to lose it by obligating him to pay her the marriage contract now. According to the example above, they sought to cause him to lose fifty percent of her marriage contract, and that is what they will pay him.

with regard to the husband.

The valuation of the damage follows the first possibility: the court estimates the money that the husband could have obtained now if he had sold the land designated for her marriage contract. That money was in his possession, and the witnesses sought to deprive him of it by making him pay her marriage contract immediately. According to the example above, they sought to deprive him of fifty percent of her marriage contract, and that is what they pay.

And one cannot say that they must pay the full amount of the ketuba, since the sum they intended to cause him to lose [less the forty percent that the husband himself was prepared to pay her] was sixty percent. For it is possible that he will die or divorce her today or tomorrow, thereby losing the entire value of the ketuba, in which case they would not have caused him any loss.

And it is impossible to say that the husband would certainly have purchased his wife's ketuba from her for forty percent of its value, in which case the entire ketuba would have been in his possession and they would have caused him to lose sixty percent. For it is not certain that he could have purchased the ketuba from her, since it is possible that the woman would refuse to sell her ketuba to him, so that she would not be easy in his eyes to divorce.

But

Rav Natan bar Oshaya said:

The assessment is made

with regard to the woman.

Since they intended to cause the husband to lose the full value of the ketuba, they must pay him its entire value. However, since the husband, for his part, was prepared to pay her forty percent of her ketuba now in order to purchase the ketuba from her and be exempt from paying it when the time came, this value is deducted from the assessment of the damage, since even in the husband's eyes it is not considered a loss. Thus, they pay him sixty percent.

Yet the statements of the disputants did not clarify what is done with the third possibility: assessing the loss resulting from the consumption of the produce of the woman's nichsei melog.

Rav Pappa said:

A. The dispute should be decided in accordance with the opinion of Rav Natan bar Oshaya, who said that the assessment is made

with regard to the woman.

B

And

the payment is only according to what they caused him to lose

through her ketuba.

That is, they pay everything that the husband would have had to pay if he were liable for the ketuba, except for the sum that the husband would have wanted to pay her in order to be freed from his ketuba obligation; that is, they pay the husband sixty percent. But they do not pay the value of the produce of her nichsei melog. For although they also caused him to lose those assets through their testimony that he divorced her, the witnesses can say that they did not know that the woman had brought nichsei melog with her.

the value of the produce of her property. Although they also caused him to lose that property through their testimony that she had been divorced, the witnesses can say that they did not know that the woman had brought property of this type with her.

Mishna:

Perjuring witnesses who said:

We testify concerning so-and-so that he owes his fellow one thousand zuz,

which he borrowed from him

on the condition that he give it to him

to repay his debt to the lender

from now until thirty days.

And he,

the borrower,

says:

The repayment date is not in thirty days, but

from now until ten years.

And it emerges that they intended to cause the borrower to lose the use of the money for ten years [less one month]. For in truth, the time for repayment of the debt would arrive only after ten years, and not now, after one month.

Therefore, when they come to punish them,

we assess how much a person would be willing to give in order to have one thousand zuz in his possession

as a loan

whether he gives them

with the requirement that he repay them

from now until thirty days,

or

whether he gives them from now until ten years.

And this is the sum they intended to cause him to lose, and they must pay it to him.

Gemara:

Rav Yehuda said that Shmuel said: One who lends money to his fellow for ten years,

the lender will not be able to collect his debt when the repayment date arrives, because during that period

the Sabbatical year cancels it.

As it is written [Deuteronomy 15:2]: “Every creditor shall remit his claim that he has against his fellow; he shall not press his fellow or his brother, because the remission of the Sabbatical year has been proclaimed.”