1

Lying witnesses are neither executed, given lashes, or required to make financial restitution unless both of them were fit to serve as witnesses and they were both disqualified through hazamah after the judgment was rendered.

If, however, only one of them was disqualified through hazamah, they were both disqualified through hazamah before the judgment was rendered, or after the judgment was rendered, one of them was disqualified because of family connections or because he was unfit to serve as a witness, the witnesses are not punished, even though they are disqualified through hazamah and no longer acceptable to deliver testimony in all matters of Scriptural Law.

א

אין עדים זוממין נהרגין ולא לוקין ולא משלמין עד שיהיו שניהם ראויין לעדות ויזומו שניהם אחר שנגמר הדין אבל אם הוזם אחד מהן בלבד או שהוזמו שניהם קודם גמר דין או אחר גמר דין ונמצא אחד מהן קרוב או פסול אין נענשין אף על פי שהוזמו ונפסלו לכל עדות שבתורה:

2

Although according to Talmudic logic one might differ, if the person against whom they testified was executed and then they were disqualified through hazamah, they are not executed. This is derived from Deuteronomy 19:19: which speaks of: 'what they conspired to do.' Implied is that it was not already done. This rule is part of the Oral Tradition.

If, however, the person against whom they testified was lashed, they are lashed. Similarly, if money was expropriated from one person and given to another, it is returned to its owner and the witnesses are required to pay the penalty.

ב

נהרג זה שהעידו עליו ואחר כך הוזמו אינן נהרגין מן הדין שנאמר כאשר זמם לעשות ועדיין לא עשה ודבר זה מפי הקבלה אבל אם לקה זה שהעידו עליו לוקין וכן אם יצא הממון מיד זה ליד זה בעדותן חוזר לבעליו ומשלמין לו:

3

The following laws apply if there were three or even 100 witnesses. If the witnesses deliver testimony in court one after the other, each one testifying immediately after his colleague and several of them were disqualified through hazamah, they do not receive punishment until all of them are disqualified through hazamah.

If, however, the interval between testimonies was greater than the time it takes a student to greet a teacher, the testimonies are divided and the two who were disqualified through hazamah are punished. The two who testified after there was such an interlude between their testimony and that of the first pair are not punished. This applies even though the entire testimony is disqualified because all of the witnesses are considered as one group and when the testimony of part of a group is disqualified, the entire testimony is disqualified.

ג

היו העדים שלשה אפילו מאה אם העידו בבית דין זה אחר זה והעיד כל אחד מהן אחר חבירו בתוך כדי דבור והוזמו מקצתן אין נענשין עד שיוזמו כולן אבל אם היה הפסק בין זה לזה יתר מכדי דבור שהוא כדי שאלת שלום תלמיד לרב הרי נחלקה העדות והשנים שהוזמו נענשין והשנים האחרים שהיה בין דבריהן ודברי הראשונים הפסק אין נענשין ואף על פי שבטלה העדות כולה מפני שהן כת אחת הואיל ונפסלה מקצתה נפסלה כולה:

4

When one witness delivers testimony, that testimony is investigated, and the second witness states: 'I also testify like him,' 'Yes, this is what happened,' or the like, they are both executed, lashed, or subjected to a financial penalty if they are both disqualified through hazamah. The rationale is that any witness who says 'Yes, this is what happened' after his colleague testified is considered as having testified and responded to cross-examination as his colleague did.

There is no concept of inadvertent transgression with regard to lying witnesses, because the transgression does not involve a deed. Therefore there is no need for a warning as we explained.

ד

העיד האחד ונחקרה עדותו ואמר השני אף אני כמוהו או שאמר הן כיוצא בזה והוזמו שניהן הרי שניהן נהרגין או לוקין או משלמין שכל עד שאמר אחר עדות חבירו הן הרי זה כמי שנחקר והעיד כמו שהעיד חבירו ואין לעדים זוממין שגגה לפי שאין בה מעשה לפיכך אין צריכים התראה כמו שבארנו:

5

Just as two witnesses can disqualify 100 witnesses through hazamah if the 100 testify at one time; so, too, they can disqualify them through hazamah if they testify as 50 groups, coming two by two.

What is implied? A group of witnesses testified that Reuven killed Shimon in Jerusalem. Two witnesses came and disqualified that group through hazamah. Another group came and delivered that same testimony, that Reuven killed Shimon in Jerusalem and these same two witnesses arose and disqualified that group through hazamah. This happened a third time and a fourth time. Even if it happens 100 times, all the other witnesses are executed on the basis of the testimony of these two.

ה

כשם שהשנים מזימין את המאה אם העידו המאה בבת אחת כך הן מזימין אותן אפילו היו חמשים כת ובאו שנים אחר שנים כיצד כת שהעידה על ראובן שהרג את שמעון בירושלים ובאו שני עדים והזימוה ובאת כת שניה והעידה אותה עדות עצמה שראובן הרג שמעון בירושלים ועמדו אותן השנים והזימוה גם זו הכת השניה וכן השלישית וכן הרביעית אפילו מאה כולן הן נהרגין על פי אלו השנים:

6

When one group of witnesses testify that Reuven killed Shimon in Jerusalem and a second group come and disqualify the first group through hazamah, the lying witnesses should be executed and Reuven's life saved. If a third group come and disqualify the second group through hazamah, the second group and Reuven should be executed and the lives of the first group saved.

If a fourth group come and disqualify the third group through hazamah, the third and the first groups should be executed and the lives of Reuven and the second group saved. Similarly, even if there are 100 groups, each one disqualifying the testimony of the previous through hazamah, one group's testimony is accepted and the other group's testimony is disqualified.

ו

כת שהעידה על ראובן שהרג את שמעון בירושלים ובאה כת שניה והזימה את הכת ראשונה יהרגו העדים הזוממין וינצל ראובן באה כת שלישית והזימה את הכת השניה תהרג הכת השניה וראובן ותנצל הכת ראשונה באה כת רביעית והזימה את הכת שלישית תהרג הכת השלישית והראשונה וינצל ראובן והכת השניה וכן אפילו הן מאה כת זו מזימה את זו כת נכנסת וכת יוצאת:

7

When witnesses testify that a person who is trefe murdered a person and then the witnesses are disqualified through hazamah, the witnesses are not executed. The rationale is that even if they had killed him with their hands, they would not be executed, because he is trefe.

Similarly, if witnesses who were trefe testified concerning a matter punishable by execution by the court and were disqualified through hazamah, they are not executed. The rationale is that if their testimony was disqualified through hazamah, and the testimony of the witnesses who testified against them was disqualified through hazamah, those witnesses would not be executed, for they disqualified only a person who was trefe.

ז

עדים שהעידו על איש טרפה שהרג והוזמו אין נהרגין שאפילו הרגוהו בידיהן אין נהרגין לפי שהוא טרפה וכן העדים שהיו טרפה והעידו בדבר שחייבין עליו מיתת בית דין והוזמו אין נהרגין שאם יוזמו זוממיהן אין זוממיהן נהרגין שלא הזימו אלא טרפה:

8

The following rule applies when witnesses testify against another person and have him convicted in a matter that does not involve lashes, capital punishment, or a financial obligation and then the witnesses are disqualified through hazamah. They are given lashes even though they did not conspire to have the defendant lashed or to obligate him financially.

What is implied? Witnesses testified that a priest was a challal, e.g., they testified that his mother was divorced or released through chalitzah in their presence in this-and-this place on this-and-this date. If the witnesses are disqualified through hazamah, they are punished by lashing.

Similarly, if they testified that a person inadvertently killed a colleague and they are disqualified through hazamah, they are punished by lashing; they are not exiled. And if they testify that a person's ox killed another person and they were disqualified through hazamah, they receive lashes and are not required to pay an atonement fine. If they testify that a person was sold as a Hebrew servant and they were disqualified through hazamah, they receive lashes. These four rulings are part of the Oral Tradition.

ח

עדים שהעידו על אחד והרשיעוהו רשע שאין בו לא מלקות ולא מיתה ולא חיוב ממון ואח"כ הוזמו הרי אלו לוקין אע"פשלא זממו להלקות זה ולא לחייבו ממון כיצד העידו על כהן שהוא חלל כגון שהעידו בפנינו נתגרשה אמו או נחלצה במקום פלוני ביום פלוני והוזמו הרי הן לוקין וכן אם העידו על אדם שהרג בשגגה והוזמו לוקין ואינן גולין העידו על שורו של זה שהרג הנפש והוזמו הרי הן לוקין ואין משלמין את הכופר העידו עליו שנמכר בעבד עברי והוזמו לוקין וארבעה דברים אלו מפי הקבלה הן:

9

With regard to the above matters, our Sages received the following tradition: When two people cause a righteous person to be condemned and a wicked person to be vindicated through their testimony and two others come and disqualify their testimony through hazamah vindicating the righteous person and condemning the wicked, the first pair of witnesses receive lashes even though their condemnation of the righteous person would not have had him subjected to lashes.

If, however, witnesses testify that a person partook of milk and meat or wore shaatnez, they are punished by lashes, as implied by Deuteronomy 19:19: 'You shall requite him as he conspired.'

ט

כך קבלו חכמים ששנים שהרשיעו את הצדיק והצדיקו את הרשע בעדותן ובאו עדים אחרים והזימום והצדיקו את הצדיק והרשיעו את הרשע הרי עדים הראשונים לוקים אף על פי שלא הרשיעו הצדיק להלקותו אבל אם העידו עליו שאכל בשר בחלב או שלבש שעטנז הרי אלו לוקין משום שנאמר ועשיתם לו כאשר זמם:

10

When two witnesses testify that Reuven committed adultery with the daughter of a priest, Reuven was sentenced to death by strangulation and the daughter of the priest was sentenced to be burnt to death, and afterwards the witnesses were disqualified through hazamah, they should be executed by strangulation and not burnt to death. This is part of the Oral Tradition.

י

שנים שהעידו על ראובן שנאף עם בת כהן ונגמר דין ראובן ליחנק ודין הנואפת לשריפה ואחר כך נמצאו זוממין הרי אלו נחנקין ולא נשרפין ודבר זה מפי הקבלה:

Notes:

1. If one of them is unacceptable as a witness, their testimony is no loner effective. Hence they are not punished (Kessef Mishneh).

2. The second pair of witnesses states that one, but not the other of the first pair were with them in a different place at the time they claim that the event transpired.

3. For the punishment was prescribed only for a pair of witnesses (Rashi, Makkot 5b).

4. As described in Chapter 13.

5. As described in Chapters 10-12.

6. As stated in Chapter 10, Halachah 4. They are, however, acceptable in matters where leniency is granted with regard to the acceptance of testimony, e.g., testimony concerning the death of a woman's husband.

7. Our translation is based on the gloss of the Kessef Mishneh who states that the fundamental principle the Rambam is trying to convey with this phrase is that capital punishment is not given unless it is explicitly stated in the Torah. A logical proof is not sufficient.

What is the logic here? If a person who conspires to have a person executed should be executed, should not one who actually caused him to be executed.

8. From the Rambam's Commentary to the Mishnah and from the gloss of the Radbaz, it appears that although they are not executed, they should be punished by the court.

9. I.e., what they conspired.

10. I.e., the Torah prescribes punishment only in such a situation.

11. The Ra'avad and the Kessef Mishneh question the Rambam's source for this distinction. The Kessef Mishneh explains that it is possible to say that since judgment is ultimately in God's hands, had the executed party not been guilty, God would not have allowed him to be executed. Hence the lying witnesses need not be punished. Alternatively, he can be explained that the punishments inflicted by the courts are not goals in their own right, but means to bring a person to atonement. It is not fitting to give lying witnesses who had a person executed the opportunity to achieve such atonement. Since lashes is not as severe a punishment, neither of these explanations apply.

12. I.e., the plaintiff is required to return it.

13. For financial penalties are established based on Talmudic logic (Kessef Mishneh).

14. As the Rambam continues to explain, the Hebrew term translated as 'immediately after,' toch kidei dibur, has a specific meaning: The time it takes a student to greet a teacher, saying: Shalom alecha rabbi (Hilchot Sh'vuot 2:17).

15. The Ra'avad questions: Since these witnesses were not disqualified through hazamah, why would one think that they should be punished? The Radbaz answers that the very fact that they appeared together with lying witnesses implicates them.

The Lechem Mishneh explains that the Rambam's intent is that even if the second pair of witnesses were also disqualified through hazamah, they are not punished. The rationale is that since their testimony was separated from that of the first pair and by the time they testified the defendant could have been executed because of the testimony of the first pair, their testimony is of no consequence. Hence they are not punished.

16. Thus even if there is no difficulty at all with the testimony of the last pair of witnesses, the defendant is not punished. 17. Because they saw the event together and appeared together in court.

18. The rationale for this distinction can be explained as follows: With regard to the disqualification of witnesses, everything is dependent on the testimony of the witnesses in court. Hence if their testimony is separated, they are not considered as a single group. Their classification as a single group, by contrast, depends on their coming to court together. Since they came together with the intent to testify, they are considered as a single group (Radbaz, Kessef Mishneh).

The Ra'avad (and Rashi, in his commentary to Makkot 6a) do not accept the Rambam's approach and maintain that even though the first pair of witnesses should be executed, if the testimony of the second pair is validated, the defendant should also be executed.

19. I.e., he is cross-examined by the court, as explained in Chapter 2.

20. I.e., despite the fact that he did not actually testify, it is considered as if he did as the Rambam proceeds to explain. See also Hilchot Avodat Kochavim 2:8 which states that making such statements is equivalent to actually testifying in court.

21. I.e., they receive punishment even if they committed the transgression without knowing that it was forbidden.

22. The Radbaz explains that Numbers 15:29, the source for the laws of inadvertent transgression mentions 'one who acts inadvertently' (see Hilchot Shegagot 1:2). In this context (in contrast to blasphemy), speaking is not considered as an act. Hence they are not held liable.

Nevertheless, the Radbaz and the Kessef Mishneh offer a different rationale why these witnesses are punished without a warning: They desired to have the defendant punished although he did not receive a warning. Therefore, they should be punished without a warning.

23. See Chapter 18, Halachah 4.

24. For the entire purpose of a warning is to distinguish between a transgression committed willfully and one committed inadvertently (Hilchot Sanhedrin 12:2).

25. See Chapter 18, Halachah 3.

26. We do not say that they are lying and have resolved to testify against anyone who delivers testimony in this matter (Rashi, Makkot 5a).

27. Because the testimony of the second group exonerates him from the onus of the testimony of the first group.

28. The second group should be executed as lying witnesses who sought to have the first group executed. Reuven should be executed, because once the testimony of the second group has been disqualified, the testimony of the first group is then reinstated.

29. Because the disqualification of the second group exonerates them.

30. I.e., he has a physical ailment that will cause him to die within 12 months.

31. Seemingly, through their testimony, they are trying to have the defendant executed. Nevertheless, despite the fact they testify that the person who is trefe committed a murder, he is not executed. The rationale is that testimony must be able to be disqualified through hazamah. Since it is impossible to punish the witnesses 'as they conspired to do to their brother,' for they conspired to have a sick person executed and they are healthy, the concept of hazamah is not relevant, as stated in Hilchot Rotzeach 2:9.

32. And a person who kills a colleague who is trefe is not liable for execution. For it is as if he killed a dead person (Sanhedrin 78a; Hilchot Rotzeach 2:8).

33. Here also, it would appear that the intent is that since they are seeking to have the person executed, one might think that they should be executed. In fact, however, their testimony is not effective in having the defendant sentenced to death. Since they are trefe, there is no possibility of requiting them 'as they conspired to do to their brother.' For they conspired to have a healthy person executed and they are sick.

Accordingly, the Kessef Mishneh explains that we are speaking about a situation where the court did not recognize that the witnesses were trefe when it accepted their testimony.

34. Thus the punishment is not 'as they conspired to do to their brother.'

35. For the reasons mentioned by the Rambam in the following halachah.

36. I.e., the descendant of a priest who is not considered as a member of the priesthood, because he was conceived in relations forbidden to his father. See Hilchot Issurei Bi'ah 19:5.

37. Thus making his mother forbidden to his father.

Rabbi Akiva Eiger raises a question, noting that a woman who underwent chalitzah is only forbidden to a priest by Rabbinic decree. Hence the Ramban and others rule that lashes should not be given. Rabbi Akiva Eiger himself states that since the defendant is being disqualified according to Rabbinic decree through the testimony of the witnesses, and by giving that false testimony, they violate a Scriptural commandment, it is appropriate that they be punished by lashing.

38. We do not say that the witnesses should be considered as challalim themselves. This applies even if the witnesses are priests. Makkot 2b explains this based on Deuteronomy 19:19: 'And you shall requite him as he conspired to do to his brother.' The obligation is to requite him, not to requite his descendants and having him declared a challal would be a punishment against his descendants as well as him.

39. The lying witnesses are not exiled "as they conspired to do to" the defendant. The rationale is that Deuteronomy 19:5 says with regard to a person convicted of inadvertent murder: 'He shall flee to one of these cities.' Makkot, loc. cit., states: ...He,' and not those who conspire against him.'

40. For an atonement fine is not a monetary assessment, but rather a fine designated to bring atonement for the death of the victim. These witnesses do not need that type of atonement, for their ox did not cause death (Rashi, Makkot, loc. cit.; see also Hilchot Nizkei Mammon 10:4-5).

See also the Ketzot HaChoshen 38:2 which explains that even though the witness also caused the ox to be sentenced to death and no benefit to be derived from it. Nevertheless, the witnesses are lashed and not subjected to these penalties. See also the Ramban who differs and maintains that the witnesses are required to make financial restitution and are not lashed.

41. The Nimukei Mahari (based on Makkot, loc. cit.), explains that the intent is that the witnesses testify that the person stole and did not have the money to make restitution for the theft.

42. Although Makkot, loc. cit., outlines how each of these concepts is derived from the exegesis of a verse, since the concepts are not derived through the Thirteen Principles of Biblical Exegesis, the exegesis is considered as only an asmachta. The binding obligation to fulfill these directives stems from the fact that they were transmitted through the Oral Tradition (Radbaz).

43. The Rambam is borrowing the wording of Deuteronomy 25:1-2: 'And they shall validate the righteous and condemn the wicked. If the wicked man is deserving of being beaten...' which continues to speak of the punishment of lashing.

'Condemning the righteous' refers to a situation where lying witnesses caused judgment to be rendered against a righteous person.

44. In this situation, we follow the instructions of the continuation of the verse and punish the person by lashes. Delivering false testimony violates the prohibition 'Do not deliver false testimony against your colleague.' Nevertheless, one might think that since that prohibition does not involve a deed, it is not punishable by lashes. Hence the exegesis of the above verse is necessary. See Makkot 4b (Radbaz, Kessef Mishneh).

45. As in the four cases mentioned in the previous halachah.

46. I.e., since the lying witnesses delivered testimony concerning a transgression punishable by lashes, there is no need for a special teaching to instruct us to give them that punishment. They are requited in this manner, because this is what they 'conspired to do to their brother' (Kessef Mishneh).

47. See Hilchot Issurei Bi'ah 3:3 which states that the two parties to this transgression are given different punishments.

48. Sanhedrin 90a derives this from Deuteronomy 19:19 which speaks of requiting a lying witness, 'as he conspired to do to his brother,' his brother and not his sister. This, however, is an asmachta.

Rabbi Akiva Eiger questions what the ruling would be in a situation where the witnesses claim to have given a warning to the woman, but not to the man. He supposes that even in such a situation, they should be executed by strangulation, not burning.