Rava said: [If someone says] So-and-so cohabited with my wife [in a consensual relation, so that both are guilty of a capital crime], he [the husband] and another can jointly be witnesses to make the man liable for the death penalty, but not the woman [since the husband is related to the wife, and thus cannot serve as a witness against her].
What does this teach us? That we can split the testimony [i.e., that we can accept the husband's testimony against the co-respondent, but not against his wife? But that is precisely [what Rava taught in the previous text dealing with testimony about sodomy, so why do we need separate rulings for the cases of sodomy and marital infidelity?]
We might have assumed that a man is related to himself [and thus cannot testify against himself in the case of sodomy], but not with regard to his wife [in the case of marital infidelity]. So we are taught (that he cannot testify against his wife).
[A husband could not in any event testify against his wife. But perhaps once we accept his testimony against the co-respondent, we might accept his testimony against the wife too. Rava's ruling is that we do not do this.]
[In the text below, an arusah is a woman who is halakhically "engaged" to a man. The engaged couple cannot have marital relations, but if the arusah engages in sexual relations with anyone else, she and her partner are both subject to the death penalty.]
And Rava said: If witnesses testify that a man cohabited with an [unidentified] arusah, and they [the witnesses] are discredited by hazamah [i.e., other witnesses testify that the first witnesses were somewhere else at the time in question], they [the discredited witnesses] are executed, but do not pay.
[They are executed because of the biblical principle that discredited witnesses are subject to the punishment they had intended to have imposed on their innocent victim. Since cohabitation with an arusah is a capital crime, the witnesses are liable to the death penalty. But they are not required to pay for the loss in value of the arusah's ketubah, since she was never identified.]
[But if the testimony was about cohabitation with] the daughter of So-and-so [i.e., the witnesses identified the arusah], they [the discredited witnesses] are executed, and they have to pay [the value of the ketubah that the arusah would have lost].
[But what of the principle that if there are two punishments, only the most severe is administered? Why is there both the death penalty and payment?] Money for one and life for the other. [The payment for the arusah's ketubah goes to her father, so he is the one who gets the payment by the discredited witnesses. But it is the arusah herself and the co-respondent who would have been subject to the death penalty. Since the two punishments involve different people, both punishments can be imposed.]
[Rava had ruled about the punishment for discredited witnesses (whose testimony was discredited by others who had seen them at a different place when the alleged offense had taken place) in the case of cohabitation with an arusah (halakhically "engaged" woman) that was a capital crime.]
And Rava said: [If witnesses testify] that so-and-so engaged in bestiality with an [unspecified] ox, and they [the witnesses] are discredited, they are killed [since that is the punishment that their false testimony would have imposed on the innocent party], but they do not have to pay [since the ox was not specified, so the value of the ox was never at risk -- otherwise, the ox who participated in the bestiality would also be put to death]. But if the ox was identified, and they [the witnesses] were discredited, they are killed and they pay. [What of the general principle that only the more severe punishment is carried out? Should the discredited witnesses thus not be financially liable?] Money to one, and a life to the other. [There were two potential innocent victims -- one would face the death penalty, the other the loss of the ox. Since there were two potential victims, both penalties apply.]
But why this additional ruling? [Isn't the principle here exactly like that of Rava's previous ruling in the case of the arusah?]
Because he wanted to ask an additional question. For Rava asked: What is the law if someone testifies that so-and-so sodomized my ox? [Rashi: There is, of course, another witness; at least two witnesses are required in such cases. The two witnesses can clearly incriminate the person who committed bestiality. But can the owner of the ox also "incriminate" the ox?} Do we say that a person is related to himself [and thus cannot testify against himself, but is not "related" to his property [so that he _could_ testify against his own ox]? Or perhaps a person _is_ "related" to his property [and thus could not testify against his own ox.]
After he [Rava] asked this, he answered it. A person is related to himself, but is _not_ "related" to his property [i.e., the person could testify against his own ox.]
[Our mishna:] (Cases in which the punishment is) lashes are (judged) by (a court of) three, etc..
From where is this derived? Rav Huna said: Scripture states (Deut 25:1): "[If there be a controversy and they come unto judgment, and the judges] judge them [by justifying the righteous and condemning the wicked]. [The use of the plural implies at least] two. And there is no court with an even number of judges (to ensure a majority vote), so we add one more, making three judges.
But if so [if this is the exegesis we use], then "justifying" (in the plural form) implies two, and "condemning" [also plural] implies two, which makes a court of seven?
[The gemara answers:] This (these phrases)are needed for Ulla's teaching, for Ulla said: Where is there a (Scriptural hint]) that discredited witnesses (get the punishment that they had intended for their victim)?
[Before continuing with Ulla's statement, the gemara interjects a question.] A hint? It is explicitly written (Deut 19:19) "[Then ye shall do unto him] as he had proposed [to do unto his brother.] Instead, (Ulla's question is for a hint) that discredited witnesses get lashes. [Rashi: When reciprocity cannot be applied, the discredited witnesses get lashes. For example, if witnesses who are kohanim testify that another kohen is disqualified for service as a kohen for being the son of a divorcee, and are then discredited, they cannot be declared to be sons of divorcees themselves and disqualified, so they they get lashes instead.]
[The gemara now continues with Ulla's statement about the Scriptural hint for lashes when reciprocal punishment for discredited witnesses is impossible.]
[Ulla said:} For it is written: "justifying the righteous and condemning the wicked." Because they justified the righteous and convicted the wicked, does it follow [in the next verse, Deut 25:2] "if the wicked man deserve to be beaten?" Instead, if witnesses convict the righteous and other witnesses come to justify the righteous, and show that the first witnesses were evil, then "if the wicked man deserve to be beaten" [i.e., it is a hint that the discredited witnesses are the "wicked men" who deserve to receive lashes.]
[Since Ulla uses the phrase "justifying the righteous and condemning the wicked" for his exegesis, the phrase cannot also serve as exegesis for requiring seven judges.] [The gemara asks:] But let him [Ulla] derive (lashes for the discredited witnesses from (Ex 20:13) "Thou shalt not bear false witness."
[The gemara answers:] Because that prohibition [against bearing false witness] is a transgression that does not involve action, and transgressions that do not involve action do not incur lashes. [Therefore the specific exegesis supplied by Ulla was required in the case of discredited witnesses.]
[Until now, we have been discussing the opinion of the anonymous tanna of our mishna [the "tanna kama"] that three judges are required for cases in which the penalty would be judicial lashes. The gemara will now consider the opinion of R. Yishmael.]
[Our mishna:] In the name of R. Yishmael they said twenty- three [judges were required if the penalty was lashes].
What is R. Yishmael's rationale?
Abbaye said: Because of the [parallel term] "rasha" [wicked man] for those subject to the death penalty. Here [regarding lashes] it says (Deut 25:2) "if the `rasha' deserveds to be beaten," and there [regarding the death penalty] it says (Num 35.31) "a `rasha' that is guilty of death." Just as there [the death penalty] there is a court of twenty-three, so here [the case of lashes] there is a court of twenty-three.
Rava said: Lashes are in the place of the death penalty [i.e., a form of the death penalty, so that twenty-three judges are required in both instances].
Rav Acha b. Rava said to Rav Ashi: If so, why is an evaluation required? [Rashi cites the mishna in Makkot 22a: Before lashes are administered, the court determines how many lashes the person can endure. The standard is thirty-nine lashes, but if that would threaten the life of the violater, fewer lashes are administered.] He should get the lashes, and if he dies, he dies.
He [Rav Ashi] said: Scripture says (Deut 25:3) "thy brother should be dishonored before thine eyes." When you flog him, he must be alive [i.e., still "your brother"].
But what about the b'raita that if they evaluated him as able to endure twenty lashes, he only gets a number divisible by three -- in this case, eighteen? [Rashi: The lashes are divided, so that one third are directed to the front of the body, and two-thirds to the back. Thus, the lashes come in "sets" of three.] Let him get twenty-one lashes, and if he dies from the last lash, let him die, for when you flogged him he was alive [i.e., he died only after the last lash].
He [Rav Ashi] said: Scripture says (Deut 25:3) "thy brother should be dishonored before thine eyes." After the lashes are completed, he must still be "your brother" [i.e., alive], and [if he were to die] that would not be the case.
[We end on the fourth line of San 10b.]
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