meta: {"file": "/data/tomer/Sefaria-Export/txt_done/Mishnah/Commentary/Bartenura/Seder Nezikin/Bartenura on Mishnah Makkot/English/Sefaria Community Translation.txt"}
text: Bartenura on Mishnah Makkot
  ברטנורא על משנה מכות
  Sefaria Community Translation
  
  
  Bartenura on Mishnah Makkot
  
  
  
  
  
  
  
  Mishnah 1
  
  When do witnesses become <i>zomemin</i>. This is what it means to say, those witnesses that were found <i>zomemin</i> and we don't do to them the law of <i>hazama</i>, meaning that we don't fulfill in them "And do to them as they planned to do to their brother", how are they made <i>zomemin</i>.
  We testify about this man so-and-so. Kohen.
  That he is the son of a divorced woman. In front of us his mother was divorced before she gave birth and behold he is unfit for the Temple service.
  We don't say. If they were made <i>zomemin</i> and they are Kohanim we make them into the son of a divorced woman to fulfill "like they planned", as it is written (Deuteronomy 19:19) "Do to them as they planned", to them and not their children. If we made them unfit for the Temple service, and they are Kohanim, we make their children unfit forever. If you'll say let us invalidate them alone and not their children, we need to fulfill "as they planned", and this wouldn't be doing that, since they planned to invalidate the accused and his children.
  Rather they are lashed 40 times. As the verse states (Deuteronomy 25:1-2) "They vindicated the righteous one and convicted the wicked one then it will be if the wicked one deserves to be beaten", [Just] because they convicted the wicked one it will be that he deserves to be beaten? Rather, [it is referring to] witnesses that made wicked a righteous one and came another set of witnesses and they vindicated the original righteous one and changed these [first witnesses] into wicked ones, if that will be then beat the wicked one [with lashes].
  We don't say this one goes to exile. Since it is written regarding a murderer (Deuteronomy 19:5) "He shall flee", he [the murdeer] and not <i>zommemin</i>.
  That he divorced his wife. in front of us such and such a day, and this one [the accused] says "I did not divorce her and I am not obligated to pay her <i>ketubah</i>.
  Is it not that either today or tomorrow. Meaning what do they [the <i>zomemin</i>] pay to him [the accused]? If you say the entire <i>ketubah</i>, perhaps he will die or perhaps he will divorce her today or tomorrow and in the end pay her anyways, and then it comes out that they weren't making him lose anything.
  We assess how much a person would be willing to pay for this one's <i>ketubah</i>. due to an uncertainty. Since if she is widowed or divorced the one who purchased the <i>ketubah</i> will take [the whole value], and if she dies her husband inherits her and [the purchaser] loses the money he gave [for the <i>ketubah</i>], and this is what the [<i>zomemin</i>] witnesses stipulate to the husband.
  
  Mishnah 2
  
  For the title that brings upon him lashes. The verse that makes one liable for lashes is not the one that makes one liable to pay. Lashes [are learnt] from "Don't bear false witness". Paying [is learnt] from "And do to them as they planned".
  All who pay don't get lashed. Since it is written "According to his wickedness", you make him liable [for lashes] because of his one act wickedness, and you don't make him liable for two acts of wickedness. And from the fact that the Rabbis say he [the <i>zommemin</i>] pays and doesn't get lashed and they didn't say he gets lashed and doesn't pay, we learn from this that all instances of liability for both lashes and paying, we don't say he'll get lashed and not pay, rather he pays and doesn't get lashed. This is the halacha.
  
  Mishnah 3
  
  Because you shall not bear false witness. Since behold when it is impossible to [punish] the witnesses with "do to them as they planned", for example [they say] "We testify about a certain person [<i>kohen</i>] that he is the son of a divorced woman, the witnesses are lashed due to "you shall not bear false witness". Here [in this case], where there is warning against "you shall not bear false witness" and also "as they planned", they are lashed 80 [times]. The halacha is not like Rabbi Meir.
  They pay with money. The <i>zommemin</i> that are obligated in with [their attempt] to cause payment, pay the money according to the number of the witnesses. If it was three witnesses and they were made <i>zommemin</i>, each one pay a third of the [total] money that they wanted to cause him [the person they are testifying about] to lose. 
  Lashes are not divided. It's not that each of the witnesses are lashed a portion of the [total number of] lashes, rather each one is lashed 40 [times]. This is because we need "do to them as they planned", and each one sought to have the accused lashed a full amount. [However] money is combined [after being divided], when each of the witnesses gives their portion, behold he [the accused] receives what they sought to make him lose, however lashes are not combined.
  
  Mishnah 4
  
  Until they themselves are <i>zommemized</i>. That you <i>zommemize</i> them regarding their own [testimony] matters, and not the matters regarding the murderer and the murdered one, as it will go to explain. We derive this from the verse as it is written (Deuteronomy 19:18) "And behold the witness is a false witness", [this teaches us that they are not <i>zommemized</i>] until you falsify their status as witnesses.
  
  Mishnah 5
  
  Even if there were a hundred. pairs that testified one after the other with one testimony and one pair <i>zommemizes</i> all of them, all of them are killed.
  This is a conspiracy. This [word <i>istetit</i>] means that this group has strayed and are on the wrong path, as they schemed between themselves to <i>zommemize</i> all the witnesses that come to testify in this case. Another explanation of "this is an <i>istetit</i>", is these witnesses are shooters of <i>istis</i>, that it colors all that touch it.
  Only the first group is killed. Since Rabbi Yehudah holds that after the first group is <i>zommemized</i>, the testimony of a second group that comes is no longer accepted, and if [a second group does in fact] testify and is <i>zommemized</i>, they are not killed, since we don't apply [the verse] "do to them", since we would not kill based off their [the second group's] testimony. The halacha is not like Rabbi Yehudah.
  
  Mishnah 6
  
  Until the judgement is finished. [The judgement] of the accused. Since he will be killed by their testimony, and afterwards they are <i>zommemized</i>.
  
  Mishnah 7
  
  Where do we know that this is the case for even a hundred. That two can <i>zommemize</i> one hundred that testify together.
  Just as two aren't killed until you <i>zommemize</i> the both of them. As it is written (Deuteronomy 19:18) "And behold, the witness is a false witness", and the master said, any place it says "witness" behold here it refers to two, unless the verse specifies it's one.
  Until all three are <i>zommemized</i>. This [refers to the case] where they each testified within a few seconds of the previous speaker finishing. However, if two testified and at a later time others testified, behold they are [considered] two groups in all aspects.
  Rabbi Akiva says: The third witness in the group only makes the case stricter. So you don't say, since without the third [witness] the testimony would have stood, don't apply to him the rule of <i>hazama</i>, the verse teaches you that even he is judged.
  All the more so. Since [G-d's] attribute of good is greater than [his] attribute of punishment.
  
  Mishnah 8
  
  What case are we talking about? Capital cases. Since it is written (Numbers 35:25) "And the congregration shall save him.", and we return him to his vindicated status....
  Whether monetary cases. The testimony is also nullified.
  At a time that they warned him. We're dealing with capital cases. This is to say, when do we say [the testimony] is nullified? When the close relative or invalid [witness] joins in at the beginning, becoming one of the warners against the transgressor. However, if they didn't warn them and they didn't intend to become a witness in the event, the testimony of the others is not nullified just because they saw it. The halacha is like Rebbi.
  
  Mishnah 9
  
  And one warns in the middle. The warner joins with the group of witnesses, he sees them and they see him at the time of warning. Therefore, if the two groups that are in the two windows see him, they all join together and their testimony becomes one.
  He and them are killed. He is killed since there is one group that wasn't <i>zommemized</i>, and those that were <i>zommemized</i> are killed.
  That the Sanhedrin shouldn't hear through a interpreter. The judges need to understand the language, and not need to place an interpreter between them. And thus this is the halacha.
  
  Mishnah 10
  
  Sanhendrin. that have <i>simcha</i> in the land of Israel. They have permission to judge cases of fines and capital cases, whether in the land or outside, as long as the Grand Court is in the Chamber of Hewn Stone. As it is written (Deuteronomy 17:12) "in not listening to the priest...or the judge", as long as there is a priest offering sacrifices on the altar, there is a judge that rules capital cases. When there is no priest, there is no judge.
  The Sanhedrin that kills once in seven. Once in seven years.
  is called destructive. They need to be deliberate in judgment, and judge capital cases to vindication.
  No one would ever be killed. They would interrogate the witnesses about things that they would be unable to respond. Regarding a murder, [they'll be asked] "What did you see, was he a <i>treifah</i> or healthy?". And they'll say he was healthy, perhaps the place he was stabbed already had a [deathly] puncture. Regarding sexual immorality, [they'll be asked] "Did you see the makeup applicator inserted into the tube?".
  They're even increasing murder. Due to this we aren't destroying wicked people and are increasing the spilling of blood.