we're going to talk about. I don't think we'll get all the way till the end, but whatever we'll get. Here the Gemara is up to Bava Kamma, דף ד עמוד ב. The Gemara brings two ברייתות, two ברייתות in addition to the משנה. The Mishnah has said ארבעה אבות נזיקין. There are four kinds of נזיקין that a person is responsible to pay for. Then the Gemara brings a ברייתא of Rabbi Oshaya. He says there are 13, and he elaborates more on different kinds of payments that a person has to pay for certain, for certain certain kind of damages or losses that he caused to somebody else. Then comes Rabbi Chiya, and Rabbi Chiya says עשרים וארבעה אבות נזיקין. There are 24 אבות נזיקין. And he adds more, which is not noge'a to our discussion. One of the things that he adds is going to be the the whole point of the discussion. He adds one of the cases of a person who has to pay is עדים זוממין. That's what we're going to talk about. עדים זוממין, we all know what עדים זוממין are. עדים זוממין means that if two witnesses come and testify on a certain person that he did something, let's say they come and testify that Reuven, let's use an example, was מחלל שבת, I'm using this as an example, and after their testimony and they claim Reuven is חייב מיתה. Then come another group of עדים and say to the first group of עדים in front of בית דין, you claim you saw ראובן מחלל שבת in this and this city, on this and this day, this and this time, עמנו הייתם. You, two witnesses, were with us at that time someplace else. So the din is the Torah says ועשיתם לו כאשר זמם לעשות לאחיו. You do to the witnesses what they wanted, you do to the first group of witnesses what they wanted to have done to the guy. They wanted to have him killed, so you kill them. And the same thing is not only by this, in any עבירה, let's say they come and say this guy ate חזיר. And בית דין looked into it and they פסק'נד that this guy deserves malkot, for eating חזיר you get malkot. Then come another group of עדים and say that this guy, that how could you say you saw him this and this place, this this time, eat חזיר, עמנו הייתם, you were with us. ועשיתם לו כאשר זמם לעשות לאחיו, so the first group of עדים get malkot. The same thing is with money. If they come and say we saw Reuven borrow a hundred dollars from Shimon, and therefore Reuven owes Shimon a hundred dollars. Then come another group of עדים and say how could you, when did you see? You say you saw him this and this day, in this and this place, standing at this and this corner, borrowing money. That time, you were with us, so you couldn't see. So what's the din? So the first group of עדים has to pay the hundred dollars. That's the din. Therefore, Rabbi Chiya says, לאו קנס? This is knas. This is the knas. The knas is to them that they have to do, they have to pay the, or whatever the case was. So this is what the braita of Rabbi Chiya means that עדים זוממין are one of the אבות נזיקין, one of a kind of things that a person will have to pay for a damage that he did. So here you have the עדים זוממין causing a damage, and we're talking about the damage of money, because they made this guy pay a hundred dollars which he didn't really owe, so now they have to pay up, make up for the damage.

Comes Tosafos and asks a moradige kashya. If you're only familiar with the din of עדים זוממין, there is a klal by עדים זוממין: ועשיתם לו כאשר זמם לעשות לאחיו, ולא כאשר עשה. You only do to the עדים what they wanted to have done to that person if it wasn't done yet. Lemashal, if the first example I gave, they said that this guy was מחלל שבת and בית דין looked into it and they said, yes, he's חייב מיתה, and בית דין killed him, and then you mazim them, you don't kill them. It's only כאשר זמם לעשות לאחיו, as much when they, whatever they wanted to do, ולא כאשר עשה, if it's done, not. They don't have a punishment at all. We'll get a little bit to the details soon. The same thing with malkot. If they come and say that this guy did something to deserve malkot, and בית דין פסק'נד he has to get malkot, so if he did not get the malkot yet, and then you mazim them, yeah. There's coffee and water, yeah? No. A chazakah? I don't know. A gute mazal? Yeah. Vest haben brachot, amen. You have a watch? 20? It's okay, no, no. So, if they had the guy, if the guy got malkot already, not. And the same thing with mamon. So, if they come and say that he owes him a hundred dollars and he paid the hundred dollars, then they don't have to pay. The only time they will have to pay is if the guy didn't pay. So Tosafos asks, so this whole Gemara doesn't, doesn't make sense. Mima nafshach, if the guy didn't pay yet, and that's why we make them pay, there's no hezek! It's not a mazik! Who lost money here? No one lost any money. They said that Reuven owes Shimon money, but never paid yet, so no one lost anything. That's when we make them pay. So when they have to pay, there is not a there's no hezek here. If there was a hezek, that means that Reuven paid, then they don't have to pay. It's the same thing? No, it's not the same thing. So so there's no case of them being in the category of being a mazik. Because if they what issue is putting them into the category of having to pay for a hezek that they caused, and we're saying that each and every one of those, it's not. Because a mima nafshach, if there was a hezek done, then then there's no payment, and if there wasn't a hezek, and that's when they pay, so there wasn't a hezek, so they're not mazik anything. So you you make them pay, but there's no hezek. Comes Tosafos, and Tosafos has two pesha'tim. Is that the kashya that Tosafos says? Yeah, Tosafos doesn't even ask it בפירוש, but that's obvious from Tosafos what Tosafos said that that's what's bothering Tosafos. And Tosafos has פירוש ראשון, so comes the Riba and says no, אפילו שילם על פי העדים, העדים חייבין. What we said before, this klal that if they did it already, the עדים don't you don't do it to the עדים, does not apply to money. It's only by misah and by malkos. By money, even if at first Reuven paid, you still make them pay, דלא שייך בממון כאשר זמם ולא כאשר עשה. By money, there is no such thing as saying it was done already and therefore you don't do it to them. דאפשר בחזרה, because you can take it back. Malkos you can't take back, misah you can't take back, but you can take back. What's done? You did it. So whatever happens, we still consider it ולא כאשר עשה, and you have to pay. Mimela we understand the Gemara that the case is taka, when when is it one of the אבות נזיקין? When the guy taka paid, and still they have to pay. The Ribam פארענטפערט, no? The Ribam gives a different reason: דלא צריך להאי טעמא, you don't even need this reason. He says דאפילו בממון מחייבינן ליה בקל וחומר. He says this whole klal of כאשר זמם, and that's the phrase we're going to be using the whole time, so you have to keep in mind what that phrase means. This whole klal of כאשר זמם ולא כאשר עשה that you only make him pay or you make it to them if they wanted to do it, but it wasn't done, bichlal doesn't apply to money. Lechatchilah doesn't apply. Not like the Riva says that be'emet it does apply, ela mai you could always take it back. It doesn't apply. He says why? Because we have a kal vachomer. מה דאך if they wanted to make the guy lose money, they have to pay, if they made the guy lose money, vadai they have to pay! Ai, you could say the same thing by mitah and malkot also: מה דאך if they almost killed the guy, you kill them, if they mamash killed him, vadai? He says, no, by mitah there's a klal: אין עונשין מן הדין. You cannot punish somebody based on a kal vachomer. And we have that's a klal. Lemashal, where do we find that klal in the Gemara? Just to use an example of the klal, the Gemara says like this: מעביר מזרעו למולך. It says if a person brings of his children of his children to the Molech. Molech was a certain avodah zarah that they used to have two fires and they used to have the child. If you do that to some of your children, you're חייב מיתה. So the Gemara asks, what about if you do that to all your children? So the Gemara says, all your children, it's a vadai? No, Torah says only some. Ai, it's a kal vachomer! אין עונשין מן הדין. You can't punish based on this. Another example: the Gemara says that you if you have you're not allowed to have relations, if you do, with your sister, בת אביך או בת אמך, if she's your sister from one father or from one mother. So the Gemara what happens if she's your sister from both? So the Gemara says there's another pasuk. From the other pasuk, we learn out if she's your sister from both you also חייב. Right? The Gemara, what do you need another pasuk for? Isn't it a kal vachomer? מה דאך if she's your half-sister, you get killed for having relations with her, if she's your full sister, אודאי! The Gemara says, no, אין עונשין מן הדין. So the same thing here. The Torah says כאשר זמם that what they wanted to have done. So the Torah only speaks of what they wanted. איי, it's a kal vachomer! מה דאך if they just wanted you do to them, certainly if they did it? אין עונשין מן הדין. But that klal, he says, אין עונשין מן הדין only goes on מיתה and מלקות, but not on ממון. By ממון we hold עונשין מן הדין. Which actually this is a מחלוקת. Tosafot in ע״ב עמוד א׳ brought a מחלוקת between our Gemara and the Mekhilta. Okay. So therefore he says that by the case of money, we don't use the כלל בכלל of כאשר זמם ולא כאשר עשה. While according to the Riba we do use the כלל, אלא מאי he says technically it will never work because you could always return it. But בעצם the klal is there. So we have a מחלוקת here whether we say בנוגע to ממון, כאשר זמם ולא כאשר עשה. There is even a third שיטה. The third שיטה is a שיטה of Rabbeinu Yonatan. If you look here, we look in the number one was the Tosafot, of course. Number two is the Shita Mekubetzet brings Rabbeinu Yonatan, just the first line. When it says עדים זוממין have to pay, he says, דוקא כשהוזמו ועדיין לא שילם מי שהעידו עליו. When do the עדים pay? If the guy who they were speaking about didn't pay yet. שאם שילם, if he paid, לא יתחייבו. They דוקא wouldn't pay. גזירת הכתוב הוא, שכתוב לעשות, ולא שכבר עשה. Only if they wanted to do. So, he goes a step further that the fact is, דוקא, that you only make them pay when the guy didn't pay yet. See, the Riba and the Ri both argued. They say even if he paid, they can pay, but for two different reasons. One says the reason is because you can always return it, so it's never done. The other one is that l'chatchilah, the whole klal doesn't apply here. So, therefore, even if they paid already, if the guy paid, you make them pay. And Rabbeinu Yonatan says no, that this is dafka only if they didn't pay. Yeah, but why does it not shayach by money? What is his reason? They always have to pay. Who? According to who? According to the one that The The Ri? Yeah. Because of kal vachomer. מה ד if they made and wanted to make him pay if the עדים have to pay, if they actually end up paying, al achat kamah vekamah. I make a kal vachomer by מיתה also? אין עונשין מן הדין. By מיתה, we say a klal you can't make a kal vachomer, but by ממון, yes. So, we see here clearly that there are different שיטות whether we apply to ממון the klal of כאשר זמם ולא כאשר עשה. Rabbeinu Yonatan says clearly we apply. He said you only make the עדים pay if the guy didn't pay, but if the guy paid, you don't. According to the Riba, you also could apply it, ela mai, there's another reason, אפשר בחזרה. According to the Ri, he says no, it doesn't apply here. We make a kal vachomer. Let's understand, what is this difference according to the Ri between money and other things? According to the Ri? Because אין עונשין מן הדין. ממון, no, עונשין מן הדין. ממון יש עונשין. That's what he holds. He holds יש עונשין ממון מן הדין. לגבי ממון, אין עונשין מן הדין. See the Tosafot here: דיש לפרוך דהאי טעמא, דגבי ממון מחייב בקל וחומר, because ממון יש עונשין מן הדין. אי, it says מכות, הורג אינו נהרג, משום דהתם אין עונשין מן הדין. But the other thing, דוקא שיש מן הדין What about Rabbeinu Yonatan? He says it applies there too. It applies all over. Rabbeinu Yonatan? Yeah, Rabbeinu Yonatan says it applies in all cases. It applies even by ממון. We apply this klal of כאשר זמם ולא כאשר עשה. If it was done, you don't apply. While according to the Ri, by mamon, we don't apply it. So, we're just going to try to give a sevara to explain what are the two sides of whether we say by ממון, כאשר זמם ולא כאשר עשה. Be'emet, let's go a step further. And this is the Rambam. And actually happens to be a famous Rambam. And this is number four. The Rambam quotes this din of כאשר זמם ולא כאשר עשה. And how does he say? Look at the halacha here. It's פרק כ׳, הלכה ב׳. נהרג זה שהעידו עליו, if the one that they testified about actually got killed, they killed him already, בית דין, ואחר כך הוזמו, then you הוזם them, אין נהרגין. You don't kill them. מן הדין, even though there's a kal vachomer, you don't kill them. Why? שנאמר, it says, כאשר זמם לעשות, ועדיין לא עשה. It's only when do you do it to them, if they just wanted to have it done to the guy, but not if it was done already. ודבר זה מפי הקבלה, that's from we have a kabbalah. Then the Rambam says a חידוש נפלא! A חידוש נפלא!

אבל אם לקה זה שהעידו עליו, לוקין. The Rambam says if the guy that they wanted to get malkot got malkot, you still give them. וכן אם יצא הממון מיד זה ליד זה בעדותן, חוזר לבעליו ומשלמין לו. See, for mamon. Oh! So the Rambam holds, not only like we said before, like the Rambam like the Ri, only mamon, that by mamon, we don't say this כלל, כאשר זמם ולא כאשר עשה, the Rambam said we don't say it by malkot either, only by mitah. So the guy that they they they make pay He gets his money back and So he gets double, yeah? He gets the money back and they pay. Comes if you see on the side here, Hasagot HaRaavad. Right on the side, in the same See, can you read it? The little words here. נהרג, he quotes the רמב״ם, נהרג זה שהעידו עליו. So he says, אמר אברהם, like the Raavad always does. שיבוש זה! It's a mistake! Told the Rambam, you were mistaking! And the mefarshim say what does he mean? He tells the Rambam, where in the world did you get this new din that you made up? We look in the Gemara, we see there's a כלל that if you did it or if it was done already, you don't do it to the עדים. Where did you come up with this new idea that this is only by מיתה and not by מלקות and not by ממון? A a naye maaseh, a a naye zach! He doesn't even know the details! שיבוש זה! So the mefarshim on the Rambam machen a zach with it. a whole bothered: Where does the Rambam get his din, and what's the logic, and why, why? Comes to ממון, they all say: mamon ken men doch pashnen. Why? Like Tosafot in אפשר בחזרה, cuz by ממון you could you could look at it and say never פשט it was done. Vadai it was done, the guy paid already, give back the money, so it wasn't paid, so it's never considered done. But when it comes to מלקות, whatever, you can't take it back, so מלקות is מלקות. And we have a לימוד: כאשר זמם ולא כאשר עשה. We learn out the Gemara's the פסוק is כאשר זמם לעשות, like you wanted to do, not if you did it. And this is a case where they have done already. So what's the Rambam's מלקות?

Comes the Radbaz, and the Radbaz says, you know what? The real reason why the Gemara says if בית דין killed the guy already you don't kill the עדים, why the Rambam, the Gemara? Huh? Why the Rambam says. Yeah, the Rambam only says this. So the Radbaz wants to explain what the Rambam's שיטה is. And he says that the Gemara says that this din is based, how he said, because the pasuk, no the whole base of the Gemara says הרגו אין נהרגין, that if they killed him already don't get killed. So he says the reason for it is not because כאשר זמם ולא כאשר עשה, cuz the emet is if you look at the Gemara, nowhere in the Gemara does it say that that lashon of the limud. That לשון כאשר זמם the pasuk like you wanted, and we דרש'ן ולא כאשר עשה. Rashi says it. Rashi מכות דף ה. The Gemara doesn't say it. So he wants to say there's a different limud. The limud is ועשיתם לו כאשר זמם לעשות לאחיו. You do to them what they wanted to have done to the brother. And therefore, if the brother was killed, you can't do to them what they wanted to do to the brother, there's no brother anymore! That does that's not That's the logic. never sense logic. That's not logic. A second, let me finish. And therefore they say, if this is the reason behind it, that's only if the guy got killed. Then it has to be אחיו קיים, he has to be alive, and he's not. But by malkot he's still alive. So that's how the Rambam learns. The Rambam learns that the yesod of this limud is based on this Midrash. It says ועשיתם לו כאשר זמם לעשות לאחיו, you should do to them what they wanted to do to the brother, so it has to be when do you do to them? When you could say brother, here he is! But if he died, not. But malkot, not. They say that he was מחלל שבת, then they're going to kill him. Good, but it's true, but now that you found that they're wrong, so the brother is still alive, cuz you didn't kill him, so you could fulfill do to them what they wanted to have done to the brother. But if the brother was killed already, you can't do that. If that's the moked, if that's the reason for the din, then it doesn't apply to malkot. The Radbaz himself says ודבר זה צריך תלמוד. He said, but why not? They got the malkot, too. The brother got the malkot, so it's done. Why should that not No, not because he got it, because he has to be alive. In order to punish them, you could only punish them if the one they spoke about is alive, has to be there, a brother has to be here. So if he got killed, then he's not alive, you can't do it. But if he didn't get killed, no matter what he got If he died for on the other reasons? Probably also wouldn't do it to them. According to this sevara, he probably wouldn't do to them either. Yeah, yeah, yeah. And he says ודבר זה צריך תלמוד, which means you need iyun, whether this sevara is a good sevara. Besides that, the Rambam doesn't say that! The Rambam gives the other pasuk. Look at the Rambam! The Rambam says why don't you kill them? שנאמר כאשר זמם לעשות ולא כאשר עשה! And it's all based on the fact that you did it already, not because the brother has to be alive! Comes the Kesef Mishneh on the Rambam and gives other sevarot. Kesef Mishneh says like this, two sevarot. One sevara he says, you know what? That if the person got killed already, the עדים did a very terrible thing, imagine, they got a guy, an innocent person killed. So he says, there's no purpose in killing them. What's the whole idea of doing to them what they wanted to have done? A kaparah. The Gemara says it's a kaparah for them. If they did the aveirah so terrible, killing them won't be a kaparah, so what's the purpose of killing them? Says the Rambam. ממילא malkot if they had the guy, m'meila if the guy wasn't killed yet, so then it's a attempted murder. So for that, killing them will be a kaparah. But if they had the guy killed already, won't work. So that only applies to מיתה. But malkot he says, the Rambam learns, even though they got the guy had malkot, but giving them malkot will be a kaparah. And the same thing with ממון. They really need a kaparah. Huh? They really need a kaparah. Yeah, דער אויבערשטער will take care of them already, he says. Killing them will be nothing, will be no, worthless. Aye, what will happen to them? He said the lashon, he said, דער אויבערשטער will already give them עונשים כראוי, who knows what דער אויבערשטער will do. But we can't kill them, because it won't work. Because of השחתה. השחתה, exactly! Really? To say it's it's a shame to kill them for what reason? Because I can, but that only applies only by מיתה. Malkot not. What was the Radbaz and what was the one you read now? This is the Kesef Mishneh. What what number...? They're both not printed here. Not the Radbaz and not the Kesef Mishneh.

Then the Kesef Mishneh gives another reason. He says like this: Since we know the כיוון דנגזר על הסקילה, or בית דין פסק'ן דער אייבערשטער is there. But do you really think דער אייבערשטער would allow a בית דין to kill a guy, an innocent person? Can't be! Therefore, he says, mistama the guy deserved to die anyway. Oh, so if they had the guy killed, why would you kill them when really he wasn't innocent? M'meila if you just wanted to kill him and that so then you could say he's innocent. And he says I'm... Because when the Gemara said they wanted to kill the other guy, yeah, קומט זיי, they wanted to kill. But if they killed the other guy, קומט זיי גארנישט because the other guy probably deserved it. And by malkot, he says, it's not so terrible, so maybe you make a mistake, so you do to them. It's a very, yeah, it's a very hard pshat, huh? It's a very hard pshat. is incredibly hard. I've never heard of making a din based on חסידישע סברות. This is not this this this is a sevara? רוחניות'דיקע ענינים? But we're talking about Where's the מקור of the Rambam? What's the sevara of the Rambam? You say it's based on this, he came up with a new din which doesn't say anywhere? Yeah. So mistama he deserved somehow, or some reason Der Eibershter wanted him to die. Maybe not deserved, maybe it's good for his neshama to die, you never know. Something it comes out that Der Eibershter let it happen. I used the words that he deserved it, maybe didn't deserve it, for other reasons, but it's something that Der Eibershter wanted that. Because if it's something that Der Eibershter didn't really want it to happen, would not have happened, to kill. So like I've said, so you can't you can't kill him. So if somebody goes steals into someone's house, so Der Eibershter shows us No, but not by it's only by killing, he says. It's a very hard שייכות. The Kesef Mishneh says this, but it's it's hard. There's a story about the young boy that got the פאטש for for not דאווענען מנחה. So how can I not דאווען מנחה? If they say that I didn't, it must be that... Yeah, but here it's different. It's a good story going up. Doesn't make sense.

Comes Rav Chaim Brisker in his חידושים on the Rambam and he has a different pshat. And he says like this, and this is where you have number five here: by malkus he says there's a special דין מלקות, that when you give malkus, there's a special way to give it, and it has to be a Beis Din, there's a special halacha of malkus. Not only when you give malkus, that's that's everything. When you give malkus, only when על פי תורה you have to give malkus. But the עצם מלקות itself has a חלות הלכה to a certain הלכה'דיק it's called malkus. See, it doesn't go to the פרטים, but by מיתה למשל, there's a din when you give מיתה, a Beis Din just doesn't kill. But when there's a פסק to kill, it's killing, that's all it is, it's pashut killing, like you kill a person. The re'aya, if a person is chayav a certain מיתה, and the דין is that if you can't kill him with that מיתה, בית דין could kill him with any other מיתה. There's no special type, even though lechatchilah it should be. So killing is killing. מלקות is הלכה. Now he says, listen to this to this tsugang, he says: the עדים came, and they said this person did an עבירה and he deserved מלקות. בית דין looked into it, and they said he deserved מלקות, based on this עבירה. If he would have gotten מלקות according, if they would be right, if they wouldn't be liars, they would be right, and this guy got מלקות, there's a הלכה of מלקות that they got, and that's what they wanted him to get. Now that הוזמו העדים, that means what the עדים said before were wrong. Mimela the fact that they hit the guy wasn't מלקות. מלקות is only when על פי הלכה there is מלקות. Now that we found out that על פי הלכה he didn't deserve מלקות, you know what it was? A far gute klep, ober s'iz nisht keyn מלקות. So mimela, even though he got the מלקות, it's still called כאשר זמם. It's only כאשר זמם. They wanted him to get מלקות, and he didn't get מלקות. We thought he got מלקות, but now we found out that he didn't get מלקות. So if he did, it hurt and he got klep and all of this, but he didn't get מלקות. So that's why it's always כאשר זמם ולא כאשר עשה. So he said, but by מיתה, מיתה they wanted to have the guy killed. B'foal, the בית דין killed him, the guy got killed as they wanted, because there is no הלכה in killing. Mimela, so we say כאשר זמם ולא כאשר עשה. Since the Torah says you only do to them if they wanted to do it, but it didn't happen, but if it did happen, you don't do it to them. By malkus, even if it got it done, now looking back, it never never happened what they wanted. So it's always כאשר זמם ולא כאשר עשה. What's that halacha? What? What's that halacha? Well, the Rambam פסקנ'ס what it is, starting in an hour. No, no, the halacha of malkus, what what kind of What is it? Oh, it has to be in front of this בית דין, it has to be a proper בית דין, a pesak, a proper גמר פסק דין, has to be with a certain strap, and it has to be all certain things which just is halacha of malkus. And even if you did it, but you did it when it wasn't deserved על פי הלכה, it doesn't have a חלות דין מלקות. They never wanted him to get malkus. Yes, they did. They wanted him to get something that just looked like malkus. No. When they came and said he did the aveirah, they meant What according to what they said, we don't know what they just wanted. They bichlal didn't care how he's going to get it. They wanted guy to get hurt, yeah. What does it matter what they wanted? Their wanted does doesn't mean what they had in their mind. What was it that they Had we done what he said, what would have been? What were their words going to cause? So if it's all if it's something that their words are going to cause and that was done, what they said I don't care what they had in their heart. What they said was done, then you don't do it to them. If what they said was not done What they said was he deserves malkus. He said the בית דין, he התרה there, על פי הלכה he deserves malkus. Now l'poel it never happened. Even if he got the malkus. Whose perspective is it, a chidush? Who says this in the Kovetz He'arot? Now But you should also have in a different kind of I say, but the din is that that's not lechatchila only. Look at today's Gemara, where it learns out from the פסוק הכה ישקנו that מניין שאפילו אם אי אפשר להורגו במיתה הראויה לו יהרגנו באיזה בכל מיתה? שנאמר הכה ישקנו, and we learn out. So according to him, it comes out like this: like by מיתה טאקע we say כאשר זמם ולא כאשר עשה, because if they had him killed the Torah says, if you did it already, don't do it to them; by malkus he says, even if they gave him malkus, it never was a דין מלקות, ממילא you do it to them; by mamon he says, why does the Rambam say that we even if the guy paid, you make them pay? Because אפשר בחזרה, like the Rivash says, because money is אפשר בחזרה, you give back. I would like to add that be'emet the sevara of Rav Chaim you could say by mamon also, even though he doesn't say it. How could you by mamon? Because by mamon, there's a, I want to say, a chakirah, it says in other sefarim, there are many ways a person could be chayav someone money: you could be chayav because you borrowed, you're chayav because you you it's a kenas, you can be chayav someone money you stole, you're chayav someone money because you're mazik, I mean you all kinds of ways you're chayav. Now, do we look at it from the outside, makes no difference how you're chayav, huh? You're chayav a hundred dollars, it's a hundred dollars, you're chayav a hundred dollars, it's all the same. Or we say, no, each time you're chayav for something, then has a special geder. There's a din of פירעון חוב, that you pay a chov, there's a din of matanah, you could give someone money you owe money a matanah, you could give someone money paying for for stealing, each one has a separate geder. And and the takeh, just to use an example, if I owe you a hundred dollars, and I come over to you and I say, \"I'm giving you a present of a hundred dollars,\" do I still owe you the hundred dollars? Yes. \"Why? I gave you.\" It's a different geder! This is a matanah, this is it, two different gedarim. So לפי זה, I want to say the same sevara if you hold like this: that when they came and said, \"This guy borrowed from him a hundred dollars,\" so they wanted the guy to pay פירעון חוב! And the guy gave the hundred dollars. He had no choice, beit din said in this case you have to give. Now you הוזמת them, it's נתגלה געווארן, now we found out there was never a chov! So even though they got the guy to give money, but they didn't accomplish what they wanted, so he didn't nothing they he didn't do what they wanted. They wanted him to pay a chov, and לפועל, he gave stam money! No chov there! What was the geder of the hundred dollars he gave? What was So I'm saying, if we hold this way, some it's a נוגע to other cases also, that there is a separate geder in each one, each one has a separate inyan. And there are inyanim, like the din of shemittah, this in this case there is a din of shemittah, in this case there is no din of shemittah at all. So if I say the same sevara that he says you could apply here also. This is the sevara, when when that when they Just like he says by malkot, even though the malkot the malkot happened, but nevertheless, because there's a halacha of malkot, now it's נתגלה געווארן it never happened, the same thing, if there is a geder of פירעון חוב and they made the guy pay a חוב, there was no פירעון חוב! Or if they said the guy owes money because of mazik, and now you found out it was no he wasn't a mazik, so he gave a different type of money. A different type of money mimela it's always כאשר זמם ולא כאשר עשה. There's never כאשר עשה. It could be פירעון חוב. I'll tell you why. It's not פירעון חוב. No, no. Nein. You said the edim are guilty of There's no עצם חוב. Nein. If somebody comes, says to the edim, \"How could you say he owed money to that guy? You money seeing.\" And they knew he didn't pay a חוב. They knew he didn't owe the money. Again, I'm saying, it's not a noge'a what they knew, it's a noge'a what they said! They came and said, \"This guy owes the guy a חוב.\" And פסק'נט Beit Din said, \"Yes, you have to pay.\" So what what came out of their words? What what was going to happen? פירעון חוב. Now when we found out it was no חוב, there was no פירעון חוב there! So what they wanted didn't happen. So the guy keeps the money? Because what what what's the geder of the money that was given? If it was not for if he can if he can keep it. No! See, he gave it thinking it was on the חוב, and it wasn't a in terms of what is the geder of it? I mean, does he have to give it He has to give it back. has to give it back. So the guy get back, and besides, they don't pay him, also. You can't walk back death, though, because death is death. Respectfully, though Right, right, right, right, death is not like that. So I want to say, so it comes out, now we understand a sevara of whether by mamon is shayach this inyan of כאשר זמם ולא כאשר עשה. If you learn this way, that פירעון חוב and hezek and all these different things have different gederim, Then there's no shayachut to the whole thing of כאשר עשה, because it's never כאשר עשה. Mashak if you're going to learn that each all money is the same, then there is שייכות כאשר עשה. And that could be the machloket of the ראשונים. What happens when you have a second group of עדים זוממין, the first ones are going to pay When they're מזימין the מזימין? Yeah. Yeah, so I can answer. Take take take They're gonna they're gonna pay exactly for what they wanted to do. They're gonna make them pay because they were עדים זוממין and whatever עדים זוממין have to pay. Yeah, so it's a diff- No. So so the first the first ones won't have to pay. No, but if they were מזים them, they were מזים the second ones, Yeah, but the first group that has the the first group of of עדים זוממין are forced to pay because Only if the guy didn't pay. Because No, even if the guy pays, thanks. No, the גדר of whatever it is that an עדים זוממין pay. Yeah, there is a גדר just like, right. The next group comes and they were זומם them. That's exactly what they wanted. They want those guys to the to to have to pay because they were זוממין. So that you know what I'm saying? So what's wrong with that? You mean this if the first pair pay Somebody has to מזים them. Yeah. They're מזים the the the second group. The first group doesn't pay, the second group pays. The first group doesn't pay because the first group was right. What if they paid? Then then then they don't have to because it was exactly what they wanted to happen. They wanted them to pay על פי עדים זוממין, and they did pay על פי עדים זוממין. No, but now it's נתגלה that they were not זוממין. Same thing, it was נתגלה they're not עדים זוממין, because the second one are the liars. So they're not עדים זוממין. the reason that they paid was because they were No. Right, and now we found out that they're not עדים זוממין because they were מזים the second group, וממילא the first group is כשר now, so they didn't pay על פי עדים זוממין. So the money that they gave was not not what they wanted them to do, it has to be given back. The same thing, there's a דין of פירעון. They didn't pay paying for an על פי עדים זוממין. So here again it's not. They're not עדים זוממין anymore. Then we can go a step further. So coming out is that now we're saying the machloket is whether we accept the sevara of Rav Chaim or not basically. That's the machloket of the Rambam and the Raavad. The Raavad who says to the Rambam, no, you're wrong and even by ממון and even by מלקות we say כאשר זמם, because he doesn't hold of this sevara. He says we don't look at it as a חלות של מלקות. וממילא if they got the guy malkus, it's called כאשר עשה, you did it, and you don't have to give to them. משא״כ the Rambam holds yeah, I know that's right. So I want to say then as he goes a step further and say no, they both, side the Rambam side the Raavad, the Raavad also and all the others hold of this sevara of the Rambam. It's the same Raavad it's two sevarot. No, he says one on malkus and one on mamon. Yeah, but I'm saying it's the same sevara. in one way and they hold the other way Yeah, there's no reason to say that. But but the idea is taken, he says it by by malkus, we're putting it together with mamon, but the general idea is that after you're מזים them, you look back and that never happened, because now there was a different din there. So I want to say even the ones that argue on the Rambam agree with it, but still they argue on the Rambam based on another thing. And that is on another klal. Let's look in here. Here we have

Ran Nedarim number 6. Ramban Ran Nedarim says like this: והא שמעינן האוסר הנאת פירותיו על עצמו, if someone takes upon himself a נדר not to have any הנאה from his פירות, from anything. So now if he can't have any הנאה from it, it becomes הפקר. Because what's הפשט you own something? I could sell it, I could use it, but after that it's הפקר. יכולים אחרים ליטלם בעל כרחו, people can, anybody who wants can come and take it. ואינו יכול לעכב, he can't stop. אף על פי שיכול לישאל על נדרו, even though he could come to a חכם and be מתיר נדר, we don't care, כיון דהשתא מיהא לא איתשיל, right now he hasn't put מתיר נדר. Then he adds, מיהו היכא דאיתשיל, if בפועל he went and was מתיר נדר, חייבין לשלם. Whoever took it has to pay back. Why? כיון דחכם עוקר הנדר מעיקרו, since the חכם, when he is מתיר נדר, since the התרת נדר goes retroactive, so כיון דאיתשיל, now that he was שואל, means he is מתיר נדר, הויין הנך פירות כאילו לא נאסרו מעולם. So they never asar. And when you're matir a neder, not the pshat from now on, it's before. So when the guy took it thinking that it was mutar because it was hefker, now it turns out it's not hefker ever, was never hefker, so he has to give back. That's one way you look at it. That's what he says, and that's the end of this says Rashba. This is the shita of the Rashba. The last line of this page look, of this thing, ואני מסתפק בזה. The Ran says I'm not so sure. לפי שמשעה שאסרן על עצמו, look at the the slanted line, הפקירן, וכל שזכה בו אחר, אחר קנה כזוכה מן ההפקר. You're מתיר נדר, ואף על פי שאיסור שבו הלך על ידי שאלה, even though now it's not asur anymore, even retroactive, קניינו מיהא לא בטל. The fact that that person got it is not batal. That's what he says. So we have basically a machloket between the Rashba and the Ran, that the Rashba says here that he will not have to, he will have to give it back if you're matir neder, and the Ran says, stop it, but you don't have to give back. No, a chacham, we're talking here about a chacham. A chacham or a beit din. The din is it goes meikara, it goes retroactive. Yeah, yeah, this could be a chacham. So, I once explained, one of the sevarot to explain behind this machloket is this: We know for sure that when the chacham is mevatel the neder, it's lemafre'a. When we do, when we say something works retroactive, there are two ways, and I'll use the two terms: sometimes it's called aglai milta lemafre'a, and sometimes it's called נעקר הדבר למפרע. Aglai milta lemafre'a means, now it was revealed that it never was. We found out now. נעקר הדבר למפרע means, you are now tearing it away, you are now making it a lemafre'a. So, even though we're going lemafre'a, but we are making it happen now. And therefore, the chiluk is, if you say aglai milta lemafre'a, it means it never was a neder, never was a neder. Just like אגלאי מילתא למפרע. No, imagine if someone makes a neder, and you think it's a neder because you said it, and befoal you find out a week later that the way you said it is not a neder, it was never a neder! So, it's not a neder. What's the pshat? You're doing something now, it never was a neder. And the same thing, a chacham has that power to make it never was a neder. Or you can say, no, when the chacham is עוקר the neder, till now it was a neder, now he is עוקר למפרע, but looking back למפרע למפרע as it was before, the neder was a neder. And that would be the difference. The difference will be, if somebody after you made the neder took it, and then you're עוקר the neder, does he have to give it back? If you learn the first way, it's אגלאי, peshita he has to give back. He took it by mistake. We thought it was a neder, and it found out it wasn't, so he has to give back. The second way, when he took it it תאקע was a neder! And when you're עוקר the neder, you're only עוקר the neder, but anything that came out of it before stays. We find the same machloket, I explained this once in a shiur, between the Tzemach Tzedek and the Mishkenot Yaakov. Here we have a Tzemach Tzedek in Gittin, in פרק ד' of Gittin. The Tzemach Tzedek has a case like this, it's נוגע to all the dinim. We're talking about ביטול הגט. That means like this: if someone tells a shaliach, remember we spoke about it once? If someone sends a shaliach to give a get, to write a get and to send it, give a get, he has a right to be מבטל it. Before it gets to the woman, he could be mevatel it. And the Gemara says clearly that when does it work? If he uses a לשון that means that he is now being mevatel it. It has to be a לשון of מכאן ולהבא, from now. It has to be a לשון that he is saying, \"I don't want the גט to be a גט.\" But if he says a לשון that shows that the גט is not a גט from before, that doesn't work. It's a lie. It's not true, the גט is a גט. And the Gemara goes, the beginning of פרק ד' of Gittin, different לשונות, one לשון the Gemara says, \"This means מכאן ולהבא, the future. That will be mevatel the גט.\" Other לשונות the Gemara says will not.

Here happened a maaseh, there was a guy who was, they were writing a גט, there was a husband there in beit din, they were writing the גט, somehow the guy got angry in the middle. Someone, somebody got angry and he got upset, and he says like this: \"האדי, האדי, ניט קיין גט!\" This is in the middle of the swing. That's what he said, let's not copy that. האדי, I guess in Russian means: stop, stop. \"ניט קיין גט!\" That's what he said. Became a whole she'eilah, is the גט בטל or not? Now it depends, if that... in the middle of writing the גט? Yeah. It wasn't given yet. Wasn't finished. But does it be mevatel the גט? Now, we have to look at the לשון that he said. If it's a לשון that means, \"I am now being mevatel it\", the גט is בטל. If it's a לשון that means the גט is no good בעצם from before, then it doesn't work, and the גט is still good. So we have to, the Gemara doesn't mention this לשון. In Yiddish, ניט דא, how would you translate in Lashon Kodesh? אין כאן. ניט דא, אין כאן. The she'eilah is, if someone says on something \"אין כאן\", is it a לשון למפרע or is it a לשון מכאן ולהבא? That's the she'eilah. Comes the Tzemach Tzedek, and we don't say that lashon, but it says in the Gemara, so someone brings a re'ayah from hatarat nedarim, hatarat nedarim the lashon the chacham uses is \"אין כאן נדר\", and listen, you're going to be surprised. going to say now. And he says that therefore it's a lashon of מכאן ולהבא. What's that? Of from now and on. And he says to himself, Ay we know a chacham is עוקר הנדר למפרע, goes retroactive, said you don't understand, he is now going to tear it up למפרע. The lashon is I'm going to do something now, I'm telling you I'm being mevatel the neder now למפרע. And then he brings that he saw a teshuvah of the Mishkenot Yaakov, who had the exact same she'eilah, where the guy said he's talking get, and they asked the Mishkenot Yaakov what's the din. And the Mishkenot Yaakov said I'm going to that it means אין כאן, and I'm going to look at the din of neder, and by neder the lashon is אין כאן נדר, and since החכם עוקר הנדר למפרע, a chacham makes it retroactive, it's a lashon of before, and therefore the get is good. He uses the same re'ayah as the Tzemach Tzedek, פונקט פארקערט. But how could it be אין כאן למפרע? That's what he's As if it never was, that means that what you're saying is that the neder you made a week ago is not a neder. So really, you're being speaking about before. So since you're speaking about before, so similarly the לשון אין כאן means for before, and by ביטול הגט, if you say the לשון אין כאן, a lashon from before, the get is not batel. So he says the get is not batel, and the Tzemach Tzedek says he's wrong. Even though the chacham tears out the נדר למפרע, but it's not the peshat that he says it never was. I am now being mevatel it למפרע. What's the machloket between Tzemach Tzedek and the Mishkenot Yaakov? The same machloket as between the Ran and the Ramban. When a chacham, when we say he's עוקר, which way is it? Is it איגלאי מילתא למפרע, or is it נעקר הדבר למפרע? The Tzemach Tzedek holds it's נעקר הדבר. He brings the lashon of the Ramban, he says it's like you when you have a knot, and you untie the knot, you look at it, it's as if it never was there, but you had to untie it, you had to untie it now! So it's something that you're doing now, ein hachi nami you're doing now למפרע, but you're doing it now. And m'meila, if you look למפרע למפרע, it takeh was there. Mah she'ein kein if you're going to say, like the Mishkenot Yaakov holds, that it's נעקר, it's איגלאי מילתא למפרע, you're takeh going back, it never was there, you're going back strictly not doing anything now, you're going back to before. Based on that we have other things that could be explained based on these two sevarot of נעקר הדבר למפרע or איגלאי מילתא למפרע. Just see, there's another example which I probably maybe used at that time also, just it clarifies the inyan, probably when I we spoke last time I explained it, we know that if you give a get, and we're speaking about being mevatel the get, the din is mi-de'oraita that you could stand where you are, let's say a husband sent a get to his wife, as long as it didn't get to her, he could be here, get three people and in front of them say, \"I want the get to be batel,\" the get is batel. Chachamim said, \"It's a crazy thing, you know what's going to happen? The guy never knows that, there's no telephone, no email, the guy doesn't know, delivery should get married, mamzer, acts like, a terrible!\" Chachamim said not to do it. Not to do it. If you want to be mevatel the get, you have to go catch the catch the shaliach, or go to the woman. Why would you use an example about get talking about being like make it obsolete with something? Why not? Because a get is different, it has to be delivered. So, that's what's the gain? If someone made this, you just decided it's no good, whatever. No, chachamim said you can't do it, you shouldn't do it. You shouldn't be mevatel a get that way, you should be mevatel by going to her. Yeah, otherwise it's just a Then then the Gemara asks what happens if a guy didn't listen to the chachamim? It's not because of a din, the chachamim gave a gezeira. Gezeira, but what the chachamim said, they're not allowed to do it. What happens if the guy did it? He did not listen to the chachamim, he got three people together, and he said the get is batel. And then the get was delivered. So the she'eilah, is the get a good get? No. Mid'oraita it's no good, mid'oraita this is this is mevatel it, but the rabbanan said not to do it. So there's a machloket in Gemara. One opinion says that after all, mid'oraita it works, so if mid'oraita it works, the get is not a good get. Come another opinion says, \"No, when the rabbanan said not to do it, they said now if you do it, the bitul doesn't work. And if the bitul doesn't work, the get is a good get.\" Comes the Gemara and asks, a mechtige kashya, where did you hear such a thing? The Rabbanan make gezeiros to be meikil? You know what's going to happen here? This woman is going to get a get which mi-de'oraisa is no good. So mi-de'oraisa, mi-de'oraisa she is an eshes ish! Come the Rabbanan and say she's not an eshes ish! Where did you get such a thing? And the Rabbanan says that she can go and get married! Mi-de'oraisa says she's a married woman, and the Rabbanan says she can get married with a with a with a with a get that mi-de'oraisa is no good! How how could they are allowed to say? So the Gemara answers, כל דמקדש על דעתא דרבנן מקדש, ואפקעינהו רבנן לקידושין מיניה. When a person gets married, you say בשעת you get married, הרי את מקודשת לי בטבעת זו כדת משה וישראל. What do we mean כדת משה וישראל. This is that the person who's giving the kiddushin says, \"I'm giving it on condition that it fits to what the Chachamim want.\" So here, when you give this get when the Chachamim said, \"We don't want the get, we want the get not to be batal,\" so it's not that the get is batal. She could go and get married because retroactive, the kiddushin now were never kiddushin. The kiddushin had a condition, the kiddushin is not the kiddushin anymore. So that means if you do this Yeah. ער לעבט אן קידושין, אבער נישט קיין עבירה, ס'איז נישט קיין אשת איש, it's a different thing! Ein hachi nami, this will make that the guy who the husband who lived with her for 40 years, every time he was with her was without kiddushin, was with was with a woman without marriage. Fine, that's a smaller aveirah than an eshes ish. No, there was no kiddushin, the Chachamim were mevatel the kiddushin lemafre'a. כל דמקדש אפקעינהו רבנן לקידושין מיניה. And then again, it's a problem, so she's with an eshes ish. You want to say that if you mevatel the get in such a way where the Rabbanan say that bitul doesn't work, that means there never was קידושין? Oh, oh, one second! This is what I'm Obviously, I'm getting to this. Comes Tosafot, and Tosafot asks a קשיא: According to this, since it's a possibility, whenever a woman is going to be מזנה and you warn her, if she does she's an אשת איש and if she's מזנה, she gets killed. But you know you only kill a person if you have עדים and התראה, you have to have warning. And there's a din, it has to be a clear warning. If it's called התראת ספק, if you tell a person, \"Now if you do this, maybe you'll get killed.\" That's התראה. So he says, whenever a woman is going to go be מזנה, you're going to warn her. What are you going to say to her? You know that you're going to get killed? Lav davka. Cuz what happens if next week her husband will send her a גט, and then he'll מבטל the גט in front of a בית דין, and the ביטול won't work? And what's going to happen? The רבנן will be מבטל the קידושין! So she never was married! So she never So even if he doesn't do it, it's always a ספק! It's always התראת ספק! It's always a ספק, maybe maybe this. That's ridiculous. Comes Tosafot, and Tosafot answers. I'll tell you what Tosafot said. It says since now she's married, so we say there's a חזקה that she's married. So therefore, it's not called התראת ספק, cuz she's חזקה is married. And he gives an example of a נדר of a נזיר. He says if a נזיר drinks wine, he gets מלקות. So you say, how could you but when you warn the נזיר, you warn him, \"Don't drink the wine, because if you wine, you'll get מלקות.\" What happens if the נזיר drink wine or whatever, and he comes to the חכם, and the חכם is מבטל the נדר? So he was never a נזיר! So he never did an עבירה! So every time you're going to warn the נזיר, \"Don't drink wine, cuz you'll get מלקות,\" it's התראת ספק! Because you don't know, maybe it's not going to be! Ela mai, you must say because now he's a nazir, chazakah he's a nazir. So the same thing is over here also: since now she's a married woman, so we look at this married woman. We have to understand the pshat in this pshat. What do you mean? What do you mean she's now chazakah? Chazakah is always a case where something is for sure, you don't know if it changed, so we say we keep it in the chazakah. Here, if the guy is going to do it, she never was an אשת איש, there's no chazakah, the chazakah itself is going to change! How do you say chazakah? The pshat is, the difference between the kashya and the teirutz is, when we say אפקעינהו רבנן לקידושין מיניה למפרע, retroactive, is it אגלאי or נעקר? If it's אגלאי מילתא למפרע, that means that when this will happen, there was never kiddushin. That's the kashya, so it's a safek, it might never be kiddushin. The teirutz of Tosafot is it's נעקר. And if it's נעקר, it's from now למפרע, but בשעת מעשה, it is kiddushin and is 100% kiddushin. Huh? And therefore you would get not התראת ספק, and you would kill her. Make sense? Now, if b'poal you would give it, then you can't kill her. If b'poal he would send this get and do this before they kill her, they can't kill her now already, because b'poal you were עוקר it. But you're עוקר it למפרע! See, this is the point, you're עוקר למפרע, you're now עוקר למפרע. So anything that you're going to have to do now, we look as if it never happened. But looking back, how was it then? Then it takeh was. Huh? If you say, yeah, whole marriage was not a marriage. And all these years they were living without without marriage. What's this נוגע? So just like we have here the two inyanim of אגלאי and נעקר, let's apply this to the case of עדים זוממין also. Because by עדים זוממין, it's the same thing. עדים זוממין, the Gemara says, חידוש הוא. It's a chiddush. If you look here in the Gemara, there's a Gemara quoted here. Here, it's number 11, second page: איתמר, עדים זוממין, אביי אמר למפרע הוא נפסל, רבא אמר מכאן ולהבא הוא נפסל. Anyway, look a little few lines down: רבא אמר מכאן ולהבא נפסל, עדים זוממין חידוש הוא. Why is עדים זוממין a chiddush? Because תרי ותרי נינהו, right? There's two against two. מאי חזית דציית להני, ציית להני. Why do we listen to the second group and say they're they're the true guys and we and we do things to the first? Maybe the first are they're like, they're right, the real guys, and the second guys are the are the were the liars? They brought credible information. No. The din is, if it wouldn't be הזמה, if it wouldn't be עמנו הייתם, it would be הכחשה. Stam as if two עדים contradict, we don't say the second one are better than the first. Yeah, but because right, they give credible information. No, they give the best information, but they say farkert. They are contradicted. No, not a conflict, but if it's a regular contradiction, not this type called עמנו הייתם. הזמה is only if they come and say you were with us. That's the only thing. If they bring other proof, better proof even, that that מעשה never happened, that's הכחשה, and then they're both עדים are equal. So עדים זוממין is a chiddush. That means that the whole idea of עדים זוממין that they're liars is not because we know they're liars. As far as we're concerned, maybe the second guys are liars. The Torah said this is the din. It's a chiddush. When does this happen? The עדים came and said testimony in ראש חודש כסלו. Come other two עדים ראש חודש טבת and are מזים them. Now, when is this chiddush take place that we don't accept what the first עדים said? ראש חודש טבת. When the second come. When the second come. Yeah. Now, the she'elah if, אלא מאי, it works retroactive, that what happens anything in between כסלו and טבת? Let's say they signed a שטר in between כסלו and טבת, is it kasher or not? Till you were מזים them you accepted them. Now, but now that you were מזים them that what they said then was no good, so no, bafo'al the din is we say we pask like Abaye that למפרע הוא נפסל. Anything from then on is pasul. Rosh Chodesh Kislev. No, so still and all, all right, because if you say נעקר, also now you can't accept it, because נעקר למפרע. The she'elah is, so it comes out like this: Everything from Rosh Chodesh Kislev on is pasul. Everything from Rosh Chodesh Kislev on is pasul, that's for sure. The she'elah is in which way? Since it's not a pshat we found out that they're liars, we never found out they're liars because maybe the second were the liars, the Torah made a din. What did the Torah say? That איגלאי מילתא למפרע, the Torah made that what you do now is נתגלה געווארן that then was no good? Or the Torah was עוקר now למפרע? What is the difference? The difference is looking then. When they said then and בית דין פסק'נד based according to what they said, was that a real psak din then? I thought that now when the Torah said that you have עדים זוממין we look at it that it wasn't. That it wasn't. But if you say נעקר, then it was. If you say איגלאי, then it wasn't. Now that's nafka mina to this R'' Chaim that he said. What did R'' Chaim say? Why does the Rambam hold that by malkus you do give? You do give because now is נתגלה געווארן that never was a real מלקות, azoy poshut. If you say איגלאי מילתא למפרע, so now is נתגלה געווארן that what's best what they said then was no- not true, so memeila the whole malkus was no malkus, and memeila it's not כאשר זמם. If you're going to learn it's נעקר הדבר, that means that be'etzem then even after the Torah said the din of עדים זוממין, and after you מזים them, סוף כל סוף then what they said was real, so the מלקות is a דין מלקות, so you did takeh give a מלקות. So even though you're מזים them, you cannot say they didn't get מלקות. And therefore, if you cannot say they didn't get מלקות, so it's called כאשר זמם. And that's the machloket between the Rambam and the Raavad. The machloket will be what גדר is עדים זוממין. When we say that when the עדים are מזים the first and it works retroactive, which way does it work? Does it work retroactive to make whatever happened before doesn't count, as if it never happened? Not that it, it never happened, so there was never a דין מלקות, there was never a דין עדות. But if you're going to say it's נעקר, so בשעת they said the עדות it was takeh. Even now that we say that they that you מזים them, but looking back then, just like by a get, looking back then we said she was an אשת איש. איי now you say there's a get was למפרע makes her איסור קידושין, but if you say נעקר, we say she was an אשת איש, here also. If you say נעקר, so over then the מלקות was a דין מלקות, so it's called כאשר זמם. But if you say איגלאי, that means now we found out that there was never a דין עדות by them, so there was never a דין מלקות. If never a דין מלקות, so then it's never כאשר זמם, and that's why here the din. And the same thing would be by ממון. If you say that there was never a פירעון of a חוב, but if you say it's נעקר, so looking back before there was a פירעון of a חוב. משא\"כ if you hold איגלאי, it was no- wasn't a פירעון. No matter what... That's no matter what. That no matter what will not be counted. Now, because because even if it's נעקר, it's נעקר, now נעקר למפרע. It's a very delicate topic. We can't taytsh a... there's just thousands of examples and thousands of ways. Not thousands, but you can find examples and we find machloket. Like this case of the of the of the neder, the hatarat nedarim. It's a machloket in the Rashba and the Ran. It's a machloket in the Tzemach Tzedek and the Mishkenot Yaakov. What is the get? How does it work? Is it עוקר? And here takeh, the Tzemach Tzedek uses the word, it's עוקר, you're doing something to tear it up. What's the peshat? All of a sudden it's מגלה you did something to prove it never happened. Like someone gives a get, and then somebody could give an עצה to another one how he's gonna screw his... Yeah, he does steal from her. That's a machloket. So the Rashba holds that you have to give it back. If you're מתיר the neder, you give it back. Why? Because when you're מתיר the neder, it's מתיר למפרע. But was that practical? But the truth is, he sees it. There was a time when he had a neder. Yeah, but now we found out that it wasn't. Does that year not show anything? Good. What happens if you make a neder without hatarat nedarim? And we found and a guy made an אסר הנאה, someone came and took it, and then we found out that the neder was not because of hatarat nedarim. You pashut didn't use the right words. Does the guy have to give it back? Sure! No, it was never a neder! Now the guy, it's not his fault, he didn't do anything wrong, he didn't steal. No, he said what he said, he said, \"I'd like to be paid for his...\" Yeah, but he said that, so that's what I say, the same way here where the neder was a good neder, but if you're עוקר it, it's like if you're מגלה מילתא למפרע, same thing. And you should say, when is there a case when a woman will get killed? She's married. Will not get killed, I said. No, when is a case when she will, for sure? If she's warned. If she's warned, they always warn people, but maybe, like, maybe the husband... So we say, that's what Tosafot asked, how could there be a Tosafot asked, how could there be an התראה, it's התראת ספק? Why? Because now she's an אשת איש. So saying, \"Ay, maybe he'll do it...\" Even if he'll do it, but now, looking, even if that will happen, now, l'poal, will always be that that she was an אשת איש. If you want to kill him after that, you won't kill her, because it will be עוקר למפרע. But that you'll never, even when you're עוקר afterwards, even if he'll do this: bring her, send a get, and you will be מבטל it in front of this, and it doesn't... And it will be עוקר, אפקעינהו רבנן לקדושין מיניה למפרע, even if you say like that. And anything you're gonna want to do after that maaseh happens, which is negate it before, we'll say as if it never happened. As if she was never an אשת איש, and you won't kill her. So a husband could always save his wife... That's that's Tosafos's another kashya. Tosafos asked, so a person is married to a relative, and she's מזנה and he wants to protect her not to get killed, so he could do this. This was the maaseh with Gordon, no? I once had a shailah, so I spoke to him, and I spoke to them, so he sent me his, his קונטרס he wrote. There was a guy, a shailah of a woman who got married, then she didn't get a get, she went with, went to another man, a freye woman, and she had a child. The child was a mamzer. איזה שהוא child was a mamzer. So what, what could you do now? So, Gordon tells me, it's called the Get HaMaharsham, that if the husband is still alive, that ex-husband, first husband, let her, let the ex-husband now do this: send her a get, and be מבטל it in front of a Beit Din, not in front, the רבנן are gonna say אפקעינהו רבנן לקדושין מיניה, so she was never married! So m'meila when she went to the second husband... That's a terrible thing. The קידושין is still a mamzer? I'm sorry. No! Tosafos, one that it's in Tosafos says if you do it for that, a חוב הוא, he won't be מבטל it. Yeah, so there is a חוב הוא, so he will be a mamzer. But in this case, so the Maharsham writes something like this. Oh, he has a hundred kashyot on it, so he had a different סברא. So in this case, he says you shouldn't do it. There's a din that if you throw a get to your wife, and it falls within the her ד׳ אמות, she's divorced. Now, where does this din of ד׳ אמות come from? It's a דין דרבנן. Yeah. So the Rashba or the Ritva asks, so comes out mid'oraita, when you throw the get, you have to throw it to her, or into her רשות. ד׳ אמות מדאורייתא is not hers. Mid'oraita she's not divorced. The רבנן said she is. How did the רבנן do this? So he says because אפקעינהו רבנן לקדושין מיניה. So he says, do this, let the husband throw down the get in front of her in, within the ד׳ אמות, and it will be אפקעינהו רבנן לקדושין מיניה, וממילא she was never married, mimela when she went to the se-, she didn't need a get. When she went to the, I mean, the, and she went to the second husband, so the child is not a mamzer. And what is the story... And how is it so much about kohen? If a kohen does this, but יחס doesn't need to knock him down... How does it by kohen? No, but לפועל, even though לכאורה it's אפקעינהו רבנן לקדושין מיניה, but they connected it to get. So she's a ריח הגט it's called. So therefore, a kohen... So a kohen cannot marry a woman who's a ריח הגט. She can marry a גרושה. גרושה not, but this is not a גרושה. You can marry a גרושה, but this is not even a גרושה, because really what she becomes a פנויה from before, that she was never married. There is a whole inyan in ענין של תשובה, all these differ-... One is תשובה עילאה, תשובה תתאה. תשובה עילאה, תשובה תתאה is a inyan... זדונות נעשות לו כשגגות וזדונות נעשות לו כזכיות. I spoke about this once, teshuva, remember once by שבת שובה דרשה, I spoke about this? If there's no aveira there. Two levels of teshuva. Yeah, this is the two levels of teshuva, if it's מגלה מילתא למפרע or נעקר הדבר למפרע. Right. Huh? Right. What was that תשובה תתאה, תשובה עילאה, we stopped, you know it? Me'ahavah u'miyirah. Yeah. Yeah. תשובה תתאה... By the way, you were in the article, you're a mechayeh. You know, מתוך טיפות דלפו עיני, you brought me a whole idea. I told him to go. He told me he did, fine, yeah. Yeah, perhaps somebody that's to be a guest of somebody, but I would grab him, like text, call up, right, no problem, \"I'm not, I'm not gonna go.\" Er shikt, kumen er vet, er hot mamash gekhapt a ticket the last minute. Yeah, but I'm sorry he was connected