Makkot 3a — the Talmud in English

And the Gemara analyzed: this statement of Rav Naḥman—“Know it, for the money is in its owner’s possession, and they pay”—

what is it?

What is the meaning of his words?—

that they did not perform

the witnesses

an act

since the court had not yet removed money from the defendant on the basis of their testimony.

And if so, Rav Naḥman’s words are ממש

that which

Rabba

said!

And we explain: Indeed, this is so. Therefore

say

say:

And so said Rav Naḥman—

like Rabba.

Rav said: A conspiring witness—

pays according to his share.

And the Gemara asks:

what

what is the meaning of

“pays according to his share”?

If you say

if you wish to say that the witnesses divide the payment,

that this one

the first witness

pays half

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

and this one

the second witness, also

pays half—

this halakha

we already learned,

we repeat it [below, 5a]:

“They divide [the payment] into thirds with regard to money.”

That is, they divide the payment for the conspiracy among the witnesses: if there were three witnesses, each pays one third, and if there were four, each pays one quarter,

but

however,

they do not divide [the lashes] into thirds.

They do not divide among the witnesses the lashes that they conspired to impose upon the defendant; 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 conspiring,

only

one of them

of the two witnesses; and Rav says

that he pays

the one witness who was found conspiring

his half,

half of his payment.

And we challenge this explanation:

does he pay

at all the payment for his conspiracy when only he himself was found conspiring?

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

until both of them are found conspiring!

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

Rather,

Rava said,

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

saying: “I testified false testimony!”

And this is a case where he contradicted his testimony in the language of conspiracy, saying that he had not been in that place on that day; and Rav says: a witness who admitted that he had conspired to harm the defendant pays his share. For it is not necessary that both of them be found conspiring, except where they are shown to be conspiring by other witnesses.

And the Gemara wonders about Rava’s explanation:

“Is it within his power?”

Can such a thing really be within his power!?

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

But we have an established principle:

once he has spoken

the witness has given his testimony—

he can no longer speak and testify again!

For he cannot regret his testimony and now say that his testimony is not correct.

And although the witness is obligated to pay the defendant under “the law of indirect damages” for causing him a loss—for he cannot retract, and the testimony remains to obligate him monetarily—the Gemara’s question concerns the wording, since he obligated him only as a conspiring witness. And the Gemara argues that for this reason he should not be obligated, because since the witness cannot retract, it is already “as he did,” and under the law of conspiracy he should not become liable [Ritva].

Rather,

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

When he says

the witness:

“We testified”

I and my colleague testified false testimony,

“and we were found conspiring”

both of us

“in such-and-such a court.”

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

And we challenge:

according to whom,

if so, according to whose view are Rav’s words?—

Necessarily, they are

not according to Rabbi Akiva,

but according to the words of the Sages!

For if [they are] according to Rabbi Akiva, he said

Rabbi Akiva earlier:

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 conspiring, he is not obligated to pay according to his share.

Rather,

if we wish to establish Rav’s words so that they do not contradict Rabbi Akiva’s words, we must establish them

in

a case where the witness

says: “We testified, and we were found conspiring in such-and-such a court, and

already

we were obligated

to pay

money

to the defendant whom we conspired to obligate.”

And once the court obligated them, it is a monetary debt and not a fine; therefore, he becomes liable through his own admission. And Rav needed to teach us the novelty that here he becomes liable through his admission even though there is already a monetary debt upon them. For

it might enter your mind to say, since with regard to his colleague,

with regard to the second witness, he is not believed through his admission, and

he cannot obligate him

monetarily, therefore it might have been said that

he too is not liable,

since there is an obligation to pay only when the entire conspiracy is paid.

Therefore,

he teaches us

Rav that the witness who admitted that he was found conspiring and became obligated monetarily pays his share.

Mishna:

Witnesses

conspiring who said:

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

before us on such-and-such a day, in such-and-such a place.

“And he did not give her her ketuba.”

And her husband says: I did not divorce her, and I did not become obligated to pay her ketuba.

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

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

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

But surely,

perhaps the husband will die or divorce her

between today and tomorrow,

and on that possibility

in the end

the husband

will give her her ketuba.

And it follows that on this possibility they did not cause him a monetary loss through their testimony, and it is impossible to obligate them.

Rather,

the court estimates

the court:

How much a person would want to give

now

for this woman’s ketuba,

to purchase it cheaply, since by purchasing the ketuba he assumes the risk of losing his money—

for if

in the future

she becomes widowed

the woman from her husband

or is divorced

from him, then the purchaser will profit, for he will collect the full value of the ketuba in the woman’s place.

But

however, in the possibility

that she dies

the woman before her husband—

her husband will inherit her,

and then the purchaser will lose his money.

And the Mishna did not explain how this estimation is assessed, and with what monetary payments the conspiring witnesses are obligated on account of this estimation; and the amoraim disputed the matter.

Gemara:

We learned in the Mishna: One estimates how much a person would want to give for her ketuba.

And the Gemara is uncertain:

How is it assessed?

How is the loss of the ketuba that the conspiring witnesses must pay to the husband estimated?

The Gemara is uncertain:

How is it valued?

The Gemara’s uncertainty concerns the fact that a woman’s ketuba has monetary value [even before divorce or death], both for the husband and for the woman.

The husband can sell cheaply to another person the land that he designated for her ketuba, and 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. But, on the other hand, if the woman dies before the husband, the land will belong to him from the time the husband sold it to him. And the purchaser who buys the land from the husband gains two things: first, he buys the land cheaply; and second, he is entitled to consume the produce of the land from the time the husband sold it to him.

The woman

can sell her ketuba cheaply, on the possibility that if her husband divorces her or dies during her lifetime, the purchasers will acquire her ketuba.

Likewise, the husband himself can purchase his wife’s ketuba from her.

Purchasers who customarily acquire ketuba rights cheaply pay the husband for the land designated for the ketuba an amount higher than the payment they make to the woman when they come to acquire her rights in the ketuba.

For it is preferable for them to buy from the husband the land designated for her ketuba than to buy from the woman her ketuba, for two reasons:

A. One who buys from the husband immediately gains the right to consume the produce of the land designated for her ketuba, for meanwhile the right to consume the produce belongs to the husband; he can sell it to another person.

But one who purchases the ketuba rights from the woman has no right whatsoever to consume the produce. B. One who buys from the husband immediately becomes in possession of the land; and on the possibility that he will acquire 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 is already in possession of it. But if he buys from the woman, then even if the husband dies during her lifetime or divorces her, the purchaser will need to come and take the land from the husband or his heirs. Therefore, for example, if when the purchaser comes to buy the ketuba from the woman he pays her forty percent of her ketuba, then to the husband he pays fifty percent of the value of the land designated for the ketuba. Likewise, the husband has two possibilities:

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

a. A purchaser from the husband immediately acquires 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.

The first:

to sell

the land designated for her ketuba to other people, and

to receive

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

And the second:

to purchase

his wife’s ketuba for himself, and

to pay

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

In light of this, there are several possibilities for how to assess the loss in the value of the ketuba 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 ketuba and its produce. Accordingly, they must pay him fifty percent of the value of the ketuba, since he had the right to receive this amount, and they came to make him lose it.

The second is to assess the price at which people are willing to buy the ketuba from the woman. For the husband himself is also willing to buy the ketuba from her at this price, which is, as stated, forty percent; and the conspiring witnesses did not come to make him lose this price, since he himself was willing to pay it. Therefore, these forty percent must be deducted from the value of the ketuba, and it follows that they must pay the husband sixty percent.

A third possibility is to assess, in addition to what was stated, also the husband’s right to consume the produce of the melog property from the woman’s assets [since the husband has the right to consume all the produce of the woman’s assets, including those that she did not bring to him as her dowry, called “melog assets”], for the conspiring witnesses also conspired to make him lose from now on the consumption of the produce of the melog assets.

Rav Ḥisda said:

He assesses

with regard to the husband.

The assessment of the damage follows the first possibility: one assesses the money that the husband could have obtained now if he had sold the land designated for her ketuba, for that money was in his possession, and they came to make him lose it when they obligated him to pay her the ketuba now. According to the example above, they came to make him lose fifty percent of her ketuba, and that is what they will pay him.

Rav Ḥisda said:

The valuation is made

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 it cannot be said that they should pay the full ketuba, for the sum that they sought to cause him to lose [after deducting the forty percent that the husband himself was prepared to pay her] was, namely, sixty percent. For it is possible that today or tomorrow he will die or divorce her, and lose the entire value of the ketuba, and it will turn out that they caused him no loss.

And it is impossible to say that certainly her husband would have purchased her ketuba from her for forty percent of its value, and then the entire ketuba would have been in his possession, and it would turn out that they caused him to lose sixty percent. Since it is not certain that he would have been able to purchase the ketuba from her, for it is possible that the woman would refuse to sell him her ketuba, so that she would not be easy in his eyes to divorce.

But

Rav Natan bar Oshaya said:

They assess

with regard to the woman.

Since they came to cause the husband to lose the full value of the ketuba, they must pay him the whole of it. 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 become exempt from paying it when the time came, this value is therefore deducted from the assessment of the damage, for in the husband’s own eyes as well it is not considered a loss, and they pay him sixty percent.

But it was not clarified in the words of the disputants what is done with the third possibility, namely, the assessment of the loss from consuming the produce of the woman’s melog property.

Rav Pappa said:

A. The dispute should be decided in accordance with Rav Natan bar Oshaya, who said that they assess

with regard to the woman.

B.

And

the payments are 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 had been liable for a ketuba, except for the sum that the husband would have wanted to pay her in order to become exempt from her ketuba—that is, they pay the husband sixty percent. But they do not pay him

the value of consuming the produce of her melog property. For although they also caused him to lose those through their testimony that she was divorced, the witnesses can say that they did not know that the woman had brought melog property with her.

Mishna:

Conspiring witnesses who said:

“We testify concerning so-and-so that he is liable to his fellow for one thousand zuz”,

which he borrowed from him,

“on the condition that he give them to him”,

to repay his debt to the lender,

“from now until thirty days.”

And he,

the borrower,

says:

The time of repayment is not in thirty days, but rather

“from now until ten years.”

And it turns out that they plotted 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 had not arrived until after ten years, and not now, after one month.

Therefore, when they come to punish them,

they assess how much a person would want to give so that one thousand zuz would be in his possession

as a loan,

whether he gives them

which he must repay

from now until thirty days,

or

whether he gives them from now until ten years.

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

Gemara:

Rav Yehuda said in the name of Shmuel: If one lends money to his fellow for ten years,

the lender will not be able to collect his debt at the time of repayment, because during the term

the Sabbatical year cancels it.

For it is written [Deuteronomy 15:2]: “Release every creditor’s claim; he shall not press his fellow or his brother, because the release for the Lord has been proclaimed.”