The Kollel replies:
Hi Nati,
Your
excellent question is the basis for a topic well-spoken of in the
Yeshiva world. The question is: Is the Malkus given in this case due to
the Lav of Edim Zomemim, or does the verse of "v'Hitzdiku" teach that
even though the Lav of "Lo Ta'aneh" is a Lav she'Ein Bo Ma'aseh (which
is usualy exempt from Malkus), it is still punishable with Malkus? Some
say that these two opinions are the opinions in the two answers of
Tosfos. The answer you brought maintains that the Malkus comes as a
substitute punishment for the Hazamah, while the following answer
maintains that the Malkus is for the Lav of the Edus Sheker, regardless
of the special addition of Edim Zomemim. It is important to add that
these two opinions are not only a theoretical discussion. If we say that
the Malkus comes as a Hazamah punishment, all the special conditions of
Hazamah need to be verified before we can carry out the Malkus. For
example, the special Halachah of "Ka'asher Zamam v'Lo Ka'asher Asah"
would apply, and so would the Halachah that the punishment is given only
if both of the Edim are found to be Zomemim.
Many,
or even most, of the Rishonim seem to hold like the first opinion,
while others hold like the second. According to the first opinion, we
have to say ("b'Dochak") that the Gemara does not mean that the Malkus
is not under the Lav of Edim Zomemim, but just that it is not the
typical Hazamah punishment. Some bring a proof from the words of the
Gemara:
ויש עדים זוממין שאין עושים בהם דין הזמה כל עיקר
from which we can see that the Gemara is still calling them "Edim Zomemim" but they do not get the regular Din Hazamah.
The
bottom line is that your question is better than the answer, but it is
not based on a mistake, but rather on the right understanding in the
Tosfos, or at least the right one according to many comentators.
Kol Tuv,
Aharon Steiner
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