Thursday, January 31, 2008

kufra kaparah - eidim zomimim who testify someone is chayav misah b'ydei shamayim

Jumping back into things, I just want to mention an interesting Ramban that I saw when learning Makkos with my son, which is sort of apropos of parshas hashavua (but then again, so is most of choshem mishpat). Eidim zomimim who testify that Ploni’s muad ox killed someone and Ploni must pay kofer do not get punished in turn by having to pay kofer; instead they receive malkos. The gemara (2b) explains that kufra kaparah, the payment is exculpatory for the person whose ox murdered; since the eidim zomimim do not have an ox which killed anyone, the payment is not applicable to them.

This is not the only place that we find that money paid as a kaparah takes on a different character than other payment. Tosfos (Kesubos 30b d”h zar) writes that mechila by the recipient does not exempt an obligation to pay kaparah.

The Ramban adds an interesting lomdus to the gemara’s explanation which sounds almost like something an acharon would say. The Ramban writes that kofer is a substitute for the ox's owner receiving misah b’ydei shamayim. It makes no sense to say that eidim zomimim through false testimony attempted to cause someone to be chayav a misah b’ydei shamayimk’lapei shemaya, from Hashem’s perspective, the truth is always known, and no one can ever receive a misah b’ydei shamayim unjustly! (Compare with the Ramban’s explanation on chumash as to why if the nidon was killed, eidim zomimim are also exempt – Ramban explains that since Elokim nitzav b’adas K-el it is impossible for Beis Din to kill someone who does not deserve death.)

What makes the Ramban interesting is that he directs us to look at the mechayeiv, the root cause behind the payment, instead of just looking at the consequence (very R’ Shimon Shkop-ish). R’ Akiva Eiger points out based on the Ramban that the gemara’s chiddush is not just true of kofer, but would be true of any attempt of zomimim to be mechayeiv misah b’ydei shamayim.


  1. Is there really a din of velo ka'asher assa? As far as I know, it's just a result of ein onshin min hadin. And if so, the implication is that the kal vachomer is legitimate, and from the dinim of kal vachomer we ought to punish zomemim even ka'asher assa. According to the Ramban's logic, the kal vachomer is flawed.

    The Kanfei Yonah in Shoftim wants to make a machlokes rishonim on whether the ptur is just ein onshim or a real limud, but you can take it or leave it.

    Also, according to the Ramban, there should be no chiyuv kaparah for any rotzei'ach beshogeig, because, as it says in Mishpatim, "Ve'ha'elokim ina le'yado," which to me says that it was a set up.

  2. The last point is like the Ramban's kashe of why Pharoah was punished - wasn't that just a setup as well?

    Re: the kal v'chomer being flawed, if I understand you correctly, isn't that exactly the point of the KS"M in hil eidus ch 22 re: why the Rambam does not apply k'asher zamam v'lo ka'aseh asah to either mamon or malkos?

  3. Boy, I forgot that KM (20:2). I apologize to the Kanfei Yonah. It's really time to go back to school. Your BIL is right. You takkeh know something. (He was far more complimentary, by the way.)