came up with there are two opinions. לעניין עדים זוממין. You have עדים coming and saying that somebody did something and בית דין makes him חייב, but then two others come and say that these two first guys who said it, עמנו הייתם, you were with us at that time you claimed that you saw this happen. So, the פסוק says, ועשיתם לו כאשר זמם לעשות לאחיו, you have to do to them what they wanted to do to the person. And the Gemara darsh's in Masechet Makkot, כאשר זמם ולא כאשר עשה. That means only if what they wanted to have happened to that guy didn't happen. They just wanted it to happen. Then, you do it to them. But if it happened already, then you don't do it. הרגו, אין נהרגין. That means the Gemara says if they came and said it, let's say Reuven was a מחלל שבת and בית דין looked into it and they accepted the witnesses and they actually killed him. And then other two עדים come and מזים them, you don't kill the עדים, the witnesses. Because that's כאשר עשה, that's done already. The פסוק says you do to them what they wanted to have done. Now the Rambam says that this din that we say כאשר זמם ולא כאשר עשה only applies to mitah, exactly like this case, that if they had the guy killed, then you will not kill them. You will only kill them if they wanted to have the guy killed. But what happens by malkus? They came and claimed that this and this guy, Reuven, did an aveirah where he deserves malkus and בית דין gave him the malkus. And then they were מזים them, so the Rambam holds that then you will still give the עדים the malkus. And this rule of כאשר זמם ולא כאשר עשה that you only do to them what they wanted to do, not if it was done, does not apply to malkus. And the same thing is with mamon. With money, they come and say that Reuven borrowed $100 and you're מזים them, then they have to pay the $100. But what happens if Reuven already paid? So the Rambam says you still make them pay. This whole rule of כאשר זמם ולא כאשר עשה does not apply to mamon. So the Rambam holds it doesn't apply to malkus, doesn't apply to mamon. It only applies to mitah. Why did they differentiate things and not mitah? Is there a reason? The Gemara says by מיתה we say clearly כאשר זמם ולא כאשר עשה. The Gemara says that. The question is, does it also apply to מלקות, to everything else? Comes the Raavad on the Rambam and he says to the Rambam. And he says very simple words. One, two words he says. Three words. שיבוש הוא זה. That's all. You're mistaking. You make a mistake. That's all he wrote to the Rambam. He always says that. Always says, very sharply writes. And the mefarshim on the Rambam all say that that's what he meant. He says, where did you get this idea? The idea is the fact is that there is a כלל כאשר זמם ולא כאשר עשה. This klal applies applies to מיתה. What? So, it so it applies to מיתה, and to מלקות, and to ממון. And all the mefarshim are bothered by the שיטה of the Rambam. Where in the world does the Rambam get get this? בנגוע ממון, they still have a sevara like Tosafot brings here, you know, Bava Kamma דף ד׳ Tosafot says because אפשר בחזרה. By money, we never consider that it was done. You could pay it back. So it may mean that it was done already, mimela you don't do it to them. It was never done, the guy paid already, give it back. But it's not so pashut because what happens if the guy is not around, the guy doesn't have any money? The guy ran away. I mean, maybe can't give it back. Whatever. But lemaaseh there is a sevara to say since you could give it back it's fine. But by מלקות we have a problem. Why shouldn't you say the same din as you say by מיתה? Because then we had the Kesef Mishneh to come up with the Mahara ben Chaviv's sevara, you know I spoke about it last week, and the Kesef Mishneh says two sevaras.

Finally, we came to the sevara of Rav Chaim Brisker. He comes with a sevara which we felt is a good sevara, and he says like this. And he says like a גאונישע סברא, it's not technically a sevara, it's a sevara of a גאון. He says מלקות has a special din that that's a halacha of malkot. Malkot is נישט סתם קלעפ. Malkot is there's a din, a halacha of how malkot is supposed to be given and it could only be given when you're חייב מלקות. It has to be in front of a בית דין and a certain way they're thorough with this רצועה, has to be a special din. All right. If someone will give malkot somebody when he doesn't deserve malkot, he didn't get malkot. He got a good קלעפ, but he didn't get malkot. The concept of malkot he didn't get. And that's what he says. That when they came come and say that this guy deserves malkot and בית דין gave him malkot, then they were מזים the עדים. What happened now? We found out that what they testified that means that what they testified was wrong. Mimela, what בית דין gave him malkot, It wasn't malkot. it wasn't malkot. And if it wasn't malkot, malkot, so it was never כאשר עשה. The whole kashya that I'm מזים it: if they gave him malkot already, so it's considered כאשר עשה, you did it already. And we have a klal that if you did it, then you don't do it to them, by malkot it's not שייך. What's the welts on his back? That's what, what did he get? What he... they hit him. They gave him, they beat him up. Yeah, but it wasn't a malkot. was no good, so why would the new ones be good? Why should we give the new ones to the עדים זוממים if the first ones were no good, then why the second ones be good? They're just as bad. No, but they wanted it to happen! The כת! They wanted... Nothing happened, you're saying. That's right! So that's what you give them! They did nothing also! No, no, no. We don't say what happened, we give to them what they wanted to make happen! Right! What did they want? They wanted the guy to get malkot! That's what they, he did an aveira, they said, he ate חזיר, for חזיר you get malkot. בפועל he never got malkot. So, you give to do to them what they wanted to have done. Had this considered that malkot was given, then you wouldn't give them, because the klal is כאשר זמם ולא כאשר עשה. But since it wasn't given, the guy got hit. Since it wasn't, Ayyei it was given, that's not called given. That's not what they wanted, they wanted something else. So a machloket about the malkus, if it is malkus or not malkus? No, that's the sevara, that the malkus is, is definitely there is a din of malkus. There is a din of malkus. But obviously the Raavad argues, the Raavad doesn't accept this. The R'' Chaim himself says this only if he gave malkus, by mamon he doesn't say it. By mamon it's a different reason, because אפשר בחזרה, you could give back.

So I explained that be'emet you could take his sevara and expand it to mamon also. Why? No, he says that by malkus, by mamon, because there is a שאלה סברא that by mamon there is a difference how you pay money. There's are many ways a person could give someone else's money. I could give you money because I owe it to you, I borrowed it. I could give you money, I could give you a present. I could give you money because I damaged your thing. Different ways. And there is a sevara to say that when you give, when you give somebody money, the way you give it has a halachadike meaning. So if you give money because you owed, it's not the same thing as giving money as a present, or in other ways. So maybe you could say the same thing. They came and said, \"We saw Reuven borrow a hundred dollars from Shimon, and he owes him a hundred dollars for a loan.\" Then they have, they paid. Now you are mazim them. So look back and say what they wanted didn't happen. They wanted him to pay for a loan, there was no loan. Ayyei he gave the money? Hey, he gave a present, he gave other money, he gave some money, but it wasn't a loan, so it goes back. This is how the R'' Chaim explains. The she'elah is now, this is still חזרת ממון, the she'elah is what does the Raavad hold. This is how he explains the Rambam. Now, normally, so we, so you could explain that the Rambam, the Raavad argues on some one point. And then we went into this whole arichut that we find in certain cases when the Torah says that something happens retroactive, which means le-mafre'a, something later changes the past, so we said there are two ways to learn it. Sometimes we have things which is גילוי מילתא למפרע, which means it's revealed now that what we thought before happened really is different, didn't happen. Or נעקר הדבר למפרע means what we're doing now is we are now changing the past. Changed it, but now! That means till we changed it, whatever was there, takeh was there. And we brought different examples for different things. למפרע. It's למפרע, but it's נעקר למפרע. נעקר. That means that we're changing it now למפרע. גילוי מילתא means that we come now and tell you you thought something, now we found out that it wasn't. So it never was. נעקר means takeh as far as we look at it now we say it never was, but that's only now as we're looking. But now we admit that before it happened, before we changed it, it was. So and the same thing we can apply to עדים זוממים.

Why? Because עדים זוממים, באמת, is a problem. Why do we believe the second witnesses more than the first? It's just because the Torah says, it's a chidush. It's not because, b'emet, because the first are just as good witnesses as the second, and that's called הכחשה. What happens if it's not הזמה? They didn't come and say עמנו הייתם, \"You were with us.\" They came to say other ways that they're contradicting the first עדים. Who's believed? The first. No, both not! תרי ותרי, it's called two against two. Yeah, they don't believe either one because why is the second ones better than the first, because they came later? By הזמה the Torah said different, the Torah said we believe the second group and the first ones get the punishment, whatever. Don't they take oaths, right? Huh? Don't they have to take oaths? No, it's not הזמה, הזמה is only that you were with us, nothing else. Oh, they, they were with us, only that... If they say let's say that the, the person that never gave the money, that they give money, you say they come and say you know the guy you say we saw that, you say these guys killed somebody, and they come the second group says the guy who you claimed was killed was with us. That's not הזמה, that's הכחשה. And then you takeh won't believe either. But by הזמה you believe. So הזמה is a chidush. When does this chidush take place? When they're מזים them. Nevertheless, Abaye holds למפרע הוא נפסל, which means like this: I give the example. What happens if two עדים come and say ראש חודש כסלו they testified that Reuven killed somebody, and we accepted it. Came ראש חודש טבת, the second group of עדים come and say עמנו הייתם, so now they're מוזם. What happened, any testimony from between ראש חודש כסלו, when they said the first one, and ראש חודש טבת, anything, did they sign the document, whatever, is it kasher or not? So Rava says it's kasher. Why? Because, he says, the whole thing, we're not that sure that we found out that they're liars. We don't know if they're liars or not. Could be that it's the truth. It's a גזירת הכתוב that the Torah said that there's a din of עדים זוממים. When did the Torah say it? From when? From when that you're מזים them. So from now on we know that they're not accepted and now they're פסול עדים. But from then on, they're כשר. So that's why Rava holds מכאן ולהבא הוא נפסל. Abaye holds למפרע הוא נפסל. That he becomes פסול, they become פסול from then. Anything between then is פסול. And in this case the פסק like Abaye. הגם we always know that it comes to פסק in a מחלוקת אביי ורבא, the הלכה is like Rava, except יע״ל קג״ם. Six cases in Shas. They argue probably in 500 cases. Six cases is the הלכה כרב אביי: י׳, ע׳, ל׳, ק׳, ג׳, מ׳. The ע׳ happens to be this, עדים זוממים למפרע הוא נפסל. You פסק like Abaye. And comes out that Abaye holds that even though it's a chiddush, the whole idea of עדים זוממים, the Torah said, and the Torah said it when you're מזים them. But what did the Torah say? It goes למפרע. Now this למפרע that Abaye says, we could klerr: Is it אגלאי מילתא למפרע or נעקר הדבר למפרע? If you say אגלאי מילתא למפרע, it means that now we found out, takeh the Torah made a chiddush, but the Torah told us that what he said before, what they said before the month ago, are liars. Finish, so they're liars, that's it. So we know that they never said the truth. If you hold נעקר הדבר למפרע, it means now the Torah is taking it away למפרע, but looking it back then, as it was then, what they said was really עדות. If you say אגלאי, it means that what they said then is not, we happen to find out now that it was not עדות. We thought it was עדות, looked like עדות, but it's not. נעקר means we are now tearing it out and making it with not עדות. But before now, before we did this, they were takeh עדות. What's the difference? The difference will be to this machloket. The whole thing we said that why can't If they gave malkot already or mamon, we say it's not considered malkot and therefore, כאשר זמם ולא כאשר עשה. Why is it not considered malkot? Because the עדים were false עדים. Were they takeh false עדים? If you say אגלאי מילתא למפרע, takeh false עדים. We found out now that they were false עדים. Umimeila there was never a halacha of malkot. If it's not a halacha of malkot, so then there is nothing to talk about. משא״כ if you learn נעקר, the taytsh is then it was takeh good עדים, takeh it was good עדים. Umimeila it was a דין מלקות. Oh, if it was a דין מלקות, then it's כאשר עשה, it was done already, and that's what the Ribam holds. So the machloket, the Rambam and the Ribam will be: What is the גדר of עדים זוממין? Is עדים זוממין נעקר הדבר למפרע, that we're now ash causing it למפרע to change, or we're just found out that it never was? The Rambam holds אגלאי מילתא למפרע, it never was and therefore, there was never a פסק דין of malkot, because never was They were false עדים, ממילא you could give it to them, because it was never כאשר עשה, you never did what they wanted, they wanted malkot and this wasn't malkot. And the Ribam says, \"No, they gave them malkot.\" When we look at it now then it was malkot. So they gave him malkot and therefore you can't give them, because כאשר זמם ולא כאשר עשה. Based on these two ways of how you'll learn עדים זוממין, we could answer or explain a machloket between the Alter Rebbe and the Ketzot. This is a little bit complicated, but it's a case. And here we have a Gemara. So if you look at it, it's easier to The Gemara the second, number two here.

תנו רבנן שור תם שהמית והזיק, דנין אותו דיני נפשות ואין דנין אותו דיני ממונות. מועד שהמית והזיק, דנין אותו דיני ממונות וחוזרין ודנין אותו דיני נפשות. The case is like this: Because go to the second case, מועד. If you have a שור מועד, a שור מועד is a שור that already damaged, gavaged or like that, killed three times and now when he kills another time, it becomes a מועד, or he damaged it three times, he becomes a מועד. What happens if this did two things? המית, a שור מועד killed somebody. What is the din when he kills somebody? Then you have to kill him. He becomes what we call a שור הנסקל. You have to keep this word in mind, שור הנסקל. And a שור הנסקל בית דין takes him on trial, almost like a person. And you have to have a beit din of כ״ג, 23 dayanim like a person. You take him on trial, and beit din kills him. But even before beit din kills him, he is אסור בהנאה. The moment בית דין פסקנס that he's a שור הנסקל, he's אסור בהנאה. It's for מועד? הא? שור הנסקל is it even by a תם also, even if it's first time. Any time a שור kills somebody and בית דין פסקנס that he killed, so he is called a שור הנסקל. He has to get stoned, but בכלל he's אסור בהנאה. Neskilah from sekilah, they do it סקילה. Yeah. What happens if this שור מועד killed somebody and was also מזיק? He also did some damage. So the Gemara says here what do you do? דנין ליה דיני ממונות, first you judge him for the money that he damaged, וחוזרין ודנין ליה דיני נפשות, and then you judge him for the fact that he killed somebody. And it continues: קדמו ודנוהו דיני נפשות, if they first judged him דיני נפשות, the fact that he killed, אין חוזרין ודנין ליה דיני ממונות. Now too late. Now בית דין פסקנד already that you have to kill him, now you can't judge the ox for the דיני ממונות. And the Gemara asks why not? וכי קדמו ודנוהו דיני נפשות, מאי הוי? So they made first let's say they do the opposite, if they would first make דיני נפשות let's say דיני נפשות, why can't they do, let them afterward judge דיני ממונות? First they judge him that he killed somebody, and ממילא פסקנס that he have to get killed, fine. And now בית דין will take him again and judges what about the damage he did, and they פסקן again, and the owner will have to pay the damage, what's the problem? And the Gemara goes on, answers it. Comes here you see the next piece is the Gilyon HaShas, that's Rabbi Akiva Eiger. Rabbi Akiva Eiger asks a kashya. It's a kashya with a lot of details to it. Quotes the Gemara in Bava Kama דף י״ג. The Gemara says like this: If a if a שור was מזיק, damaged, but before they took it to trial, the owner was מפקיר it. Have to remember the detail cuz this is complicated. The owner was מפקיר it, made it הפקר. Now it's too late, you can't judge it now and make the owner pay. Because we learn out from a פסוק, והועד בבעליו, from a פסוק the Gemara learns out it has to be that the היזק and the העמדה בדין, and when you take it to דין, should be the same owner. And if it's he was מפקיר it, you can't judge him no more. What if he sold it? Ha? If he sold it would it be something also? Sold it could be also, that's that it is this way. But this is if he Why would you do that? Huh? Why would he do it? Why, if the היזק is a small היזק, why would you do it? In order not to get killed. In order for him not to be killed. No, no, on the היזק. Oh, on the היזק. Yeah. No, by selling it I can sell it I can, I only did this מפקיר it. You don't have to pay that much. Well, good, but maybe it's a small היזק and it's not worth for him, he'd rather keep the keep the thing and It's always gonna be more than that. Right, right, so you always wanna keep it, yeah. That's what the Gemara says. Okay, so remember that din. Now there is another din: the Gemara in Keritot. The Gemara in Keritot says like this: שור הנסקל שהוזמו עדיו. Two עדים come and say that this ox belonging to this this guy killed somebody. Beit Din looked into it, they took him to trial. Yes, he's a שור הנסקל. Beit Din decided we have to kill the ox. Then came two עדים והזימם. So the Gemara says, כל הקודם זכה. Now the שור is not אסור בהנאה because the עדים that said that he's אסור בהנאה is known is not עדים. Now anybody wants can take it. And want to grab it. Why? Because the moment the first עדים said it and בית דין פסקנד he's a שור הנסקל, he became hefker. He became hefker. You can't have any hana'ah. Can't have any hana'ah, since it's a שור הנסקל, and the guy thought it was a שור הנסקל, so he's mafkir it. So he said, 'I don't need it. What do I need it for?' So it became hefker. Now they found out it's not it's not, so now anybody wants can take it, the Gemara says. Comes the Rabbi Akiva Eiger here in the Gilyon HaShas and says, now take, combine these two Gemarot. So it'll come out that after you after you judge a שור הנסקל, he becomes hefker. And we said before that if it was hefker after it was מזיק, you can't judge it. So why does the Gemara say here that after you judge דיני נפשות, why don't you continue judging דיני ממונות? After you made him a שור הנסקל, the Gemara, what did the Gemara say? He killed somebody and he was מזיק. So the Gemara doesn't understand why can't you first judge him and make him a שור הנסקל, and then you'll judge the היזק. But according to the Gemara that as soon as he becomes a שור הנסקל he's hefker, so now it's a case of being hefker and you can't judge if it was mazik first, then became hefker, you can't judge it. Because we said the Gemara says that if it was נגח, if it was that did damage and you were mafkir it, you can't judge him for it. So anytime if became a שור הנסקל before, before first, automatically it became hefker. So now you can't judge it. So how come the Gemara says here, if he caught with the נפשות, why can't you first make him דיני נפשות, make him into שור הנסקל, and then you'll judge the היזק? But if it became שור הנסקל, it's hefker. And the din is that if it was mazik and then hefker, you can't judge it. That's his kashya, and he's, a very strong kashya, and he finishes off and you see there, tzarich iyun gadol. Now, everyone knows whenever, when he writes tzarich iyun, you know it's a strong kashya. When he writes tzarich iyun gadol, it's a very strong kashya. Shayach for today? Huh? Shayach for today, this Keritot? Yeah, we're talking about lema'aseh, lema'aseh, yeah.

Lema'aseh, let's talk about the money. The truth is that the Alter Rebbe was asked that she'eilah. In the teshuvah, let's see, it's here, סימן י״ט, this whole thing is a she'eilah. Someone wrote to the Alter Rebbe a she'eilah in other inyanim, and at the end of the she'eilah, the whole she'eilah of that person is printed, and at the end of the she'eilah, he says, \"I have a kashya on the Gemara Bava Kamma.\" He has this she'eilah, mamash this she'eilah exactly. Same Gemara from same one Keritot, the same exact sh'eilah. Comes the Alter Rebbe, and the Alter Rebbe ז״ל answers him the sh'eilah. \"I want you to know,\" he says, \"that what the Gemara says in Keritot that if the, you're mazim the edim and anybody wants could take it, because as it became a שור הנסקל, it became hefker,\" he says like this: \"It's not hefker, it's ye'ush.\" Ye'ush? Ye'ush means a person is a meya'esh. A person gives up hope. And when you give up hope also, let's say you lose an object, you give up hope, anybody could take it. So when the Gemara says anybody wants could take it, it's not because you're mafkir it. As a matter of fact, he says you can't even mafkir it. As soon as it becomes שור הנסקל, you can't be mafkir it. Because not you to be mafkir. So ye'ush, and by ye'ush, it's still considered yours. Someone, anyone could take it, but it's still considered yours. Now I'm going to arichut, he doesn't say it, but that's one of the things that comes out in ye'ush, that when you lose something and you're meya'esh, the din is anybody wants finds it, keeps it, but it's still, there is connect to you. So by, so when the Gemara says there that after you're mazim the edim, it's hefker, it's not hefker, it's ye'ush. Anybody could take it, but you're still the owner. And that answers the kashya! Because over here, when did the Gemara say that if it was mazik and then you were mafkir it, you can't judge it? When you were mafkir it! Because when you're mafkir it, it's, you're not an owner anymore. Somebody throws it away, you're not an owner. But over there the Gemara doesn't say that automatically anytime that you, it becomes a, it's hefker, it's ye'ush. If it does damage, now you are responsible for that new damage? If you'd be responsible? Probably. Probably, yeah. And he says, you know what it's like? It's like the Gemara says by chametz. The Gemara asks a kashya: chametz is אסור בהנאה, and that's then why you can't be mafkir it. After the זמן האיסור comes, you can't be מבטל חמץ, you can only destroy it, you can't... Till then you could be mafkir it and then you're not over. You can't do anything with it. Why? Because it's אסור בהנאה so it's not yours. On the other hand, you're עובר בל יראה ובל ימצא if you didn't do anything to it. How could you be over? The דין is by chametz you're only over on your chametz. Now you're saying the chametz is not mine anymore, so how are you over? So the Gemara says no, no! It's not yours enough, you can't be mafkir it, you can't do anything to it, but it's yours that you're over! You're still baal habayit! And you are over! So the same thing, the Alter Rebbe says the same thing by שור הנסקל. Oh, meaning you can't take him for the, for his period, I mean... No, no, that's why you could! You can't take only if it was hefker, because then you're not his baal habayit anymore. And the only time you could take him to din Torah if you're still the baal habayit of that... So, therefore, the Gemara says if it was מזיק, nothing to do with שור הנסקל, with עדים זוממים, סתם, if you had a שור, not a שור הנסקל, you had a שור, and the שור was מזיק, and then you were mafkir it, you're taking, you can't take it to din Torah! Why can't you take it to din Torah? Because you're not baal habayit anymore. But the Gemara over there says that anybody could take it, it's not because you're not baal habayit anymore, because it's ye'ush. Does he use the word ye'ush? Yeah! The Alter Rebbe says clearly, look, בתורת יאוש נאמרו בו. בתורת יאוש, that's how he answers it. The truth is that this she'eilah was also asked by the Ketzos. Ketzos writes, let's see in the next one, this is here... He was before the Alter Rebbe? Huh? He was before the Alter Rebbe. I don't know if the sefer was printed before, stam, yeah. He writes: הכי אירע בהמופלג מוהר״ר יהודה כהן שיחי׳ שהקשה. The Alter Rebbe has the kashya, and he also has the kashya. He quotes the Gemara in דף צ׳, with... The whole thing, and the same Gemara in Kerisus, whole thing he has the same shaila! And this is the Ketzos's answer, the Ketzos gives a different answer. The Ketzos's answer is like this: He says that it is hefker, but he says this logic. He says, שור הנסקל you cannot be מפקיר, he says. It's not yours, it's אסור בהנאה, you can't be מפקיר it. So he says, the Gemara in Kerisus which says that if you were מזים the עדים, first it became a שור הנסקל, then you were מזים the עדים, now anybody could take it, because Since you were מזים the עדים, it wasn't a real שור הנסקל, so your hefker takes place. So it's hefker? In our Gemara, we're talking about the case where it was מזיק there it wasn't you weren't מזים the עדים. This Gemara here, this shor killed somebody, and then it what did damage. So now, what are you going to say? And no one was מזים, no, no, he doesn't say yiush, he just says it's hefker. So now he says, in this case, your hefker doesn't work because by a שור הנסקל, you can't be מפקיר it. That's what he says. So that's why here you're still a בעל הבית. Over there, see, we the whole kushya is based on we're combining we're comparing these two דינים. There it says if you were מזים the עדים, anybody could take it, so we assumed, why? Because it's not yours. Here, you weren't מזים, but still, it became a שור הנסקל, so it's not yours, so you can't take it to the Beis Din anymore. So he says, \"No, no. Only if you were מזים, you can it's not yours. Because if you're מזים, ממילא it was never a שור הנסקל. Never a שור הנסקל, you can be mafkir it, so you were mafkir it. But here, there was no הזמה, here it was a regular case, it became a שור הנסקל, and no one was מזים it, so your hefker doesn't work, so it's not hefker. So if it's not hefker, you're still the baal habayit, and that's why you can judge it.\" That's what he answers. The she'elah is only, lichorah, this is this seems to be a very simple teirutz that over there Oh, well, that's what we're going to get to. This is what we're trying to get to. So, lichorah, it's a very simple teirutz that this is like the case over there is since you were מזים the עדים so the hefker doesn't work the that the hefker works cuz you were מזים the עדים, so it wasn't אסור בהנאה. Here, you were not מזים, and hefker here the hefker doesn't work. The pshat is, why doesn't the Alter Rebbe learn like this? Very simple. It's הפקר בטעות. Why was he mafkir it? Cuz the עדים came, Beis Din said it's a שור הנסקל, so the person was mafkir it. Now when you're מזים them, you found out that it's not, so definitely he didn't mean to be mafkir, he doesn't want to be mafkir it. So it's hefker by mistake! Everyone knows hefker by mistake doesn't work. And here, it just quotes it a few places here in six to seven, you have a Tosafos here. Tosafos says here in the end of תוספות, הפקר בטעות לא הוי הפקר. Seven, Tosafos in Pesachim, in the middle of there, you see in parentheses, הכא מחייב משום דהפקר בטעות הוא. So if you make hefker and it's by mistake, you find out that What, you make something hefker because you thought this thing bites. And then like come on, it was a mistake, it doesn't bite. So, the hefker doesn't count. Ah? Ke'ilu like a tenai, yeah, it's הפקר בטעות. So therefore, how could the Alter Rebbe answer the Ketzos's teirutz, that the reason it works, the Gemara in Kiddushin says if you're מזים the עדים, that's why you're not baal habayit anymore, because when you were מפקיר it then, it took place because it really wasn't a שור הנסקל, but it was all a mistake, it's הפקר בטעות! That's why the Alter Rebbe says ye'ush. In ye'ush there's no problem. Ye'ush by mistake works! And the mefarshim use even a לשון, כל ייאוש טעות הוא! Every ye'ush is a mistake. When I lose something, and I give up hope, I wanted to give up hope? I just thought, \"I'll never find it, I'm mit'ya'esh.\" Someone found it, so now, \"Oh, had I known you'd find it, I wasn't mit'ya'esh.\" That's what ye'ush is. Ye'ush is is when you think is you're going to not find it, but hefker is not like that. So the Alter Rebbe can't learn like the Ketzos, because it's הפקר בטעות. But when he did hefker, now he found out that it wasn't a שור הנסקל. The question is, what does the Ketzos learn? The chances are to say that the Ketzos argues against this Tosafos, and there's not only Tosafos, there's mefarshim in the Yerushalmi, they all say הפקר בטעות doesn't work. Could he wait after the עדים were were determined to be הזמה, yeah, wait to make it hefker? No. Then he wouldn't make it hefker. Why would he make it You have to be a meshuga then to make it hefker. Why should he make it hefker? Because then he would know for sure, one way or the other? No, he would If edim came, and were מזים them, then it's not a שור הנסקל. So why would he make No, why would he want to make it hefker? Right, so he didn't. So we assumed But if I want to, if he finds No, he didn't know they're going to be מזים them. Edim came and said it's a שור הנסקל. בית דין פסק it's a שור הנסקל. Fine, שור הנסקל. He thinks in his mind, \"Ach, who needs this שור?\" No, no interest. So we're saying, later he found out it's not, so because they found out it's not, we say the hefker is is a good hefker because it's not a שור הנסקל, so it's not אסור בהנאה, אסור בהנאה no, hefker works. You make such a condition also that the edim the edim No, who thinks edim are going to be מזים? You really think edim How often edim are מזים? Edim come, you never can trust edim because? But there was a little clause in it. But if you're מזים then hefker. So the she'eilah is, what does the Ketzos hold? How could the Ketzos give this terutz and say that it's so hefker works because it's hefker that because now you found out that it's not a שור הנסקל, ממילא the hefker is good. I would say I can't, because you found out שזה אינו הפקר is not good, because it's a הפקר בטעות. The answer could be based on what we said before. The Alter Rebbe, he talks according to the שיטת הרמב\"ם, cuz he quotes, he brings the Rambam here. We said according to the Rambam, what is the geder of עדים זוממים? The למפרע, a גילוי למפרע. Other ראשונים, like the Raavad and most ראשונים, they would hold that the דין of עדים זוממים is נעקר למפרע. נעקר למפרע. If you hold it's גילוי מילתא למפרע, then it's a הפקר בטעות. He made it הפקר thinking it's a שור הנסקל. You found out it's not. It's a mamash a mistake. It never was, it never was a שור הנסקל. If you hold it's נעקר, the peshat is now you change it and you make it not. But then, looking back then, how was it? It was takeh a שור הנסקל. And when he was, when he was מפכיר it, it was מפכיר as a שור הנסקל. So, it's not הפקר בטעות. So, if it's not הפקר בטעות, that's why he says it's, and the הפקר is חל now. Now that we were מזים it, so now it could be חל, but it's not a mistake. You can't call it a mistake because it's נעקר הדבר למפרע. So, you can explain the machloket between the Ketzos and the Alter Rebbe based on these two ways of learning the inyan of of עדים זוממים. Based on this, we can explain another thing. No, ye'ush is not, we don't care if it's טעות or not. He was mitya'esh, who cares? He was mitya'esh even though it's not it's not true, but by every ye'ush is not true, so that doesn't matter.

The Gemara here in in Bava Kamma דף ה, the Gemara says that Rabbi Akiva holds that עדים זוממים is a קנס. Well, that's a It's a קנס. The shaila is some things when you pay is called mamon, sometimes it's called kenas. Rashi gives a rule, kenas is whenever you pay more than what you owe. למשל, Uh? To the guy who wanted them to make lose. מפכיר what? No, we're talking about, no, I've got my cow, regular עדים זוממים, nothing. Yeah. So, they have to give the guy a cow. No, they have to give another cow. They have to pay a cow. They wanted him to make him lose a cow, so they have to give a cow. Killed, or make him into a שור הנסקל. Yeah. And it's כשר אסור. Unless you hold in mamon that it's not כשר אסור. But he did. Yeah, but that's not killed. No. No, he did he did it. The what? The cow and and money is the same thing. Yeah, but we're talking here not by the case of a cow. Regular case of עדים זוממים when they make you pay, when they make the עדים זוממים pay, is that called mamon or kenas? Mamon means, Rashi says kenas is whenever you have to pay more than what you owe, למשל if you steal you have to pay כפל. So, that's double. That's more. Or when the Torah tells you for certain things you have to pay a fixed amount, whether it's with a, let's say, when says if your ox kills an עבד you have to pay 30 שקלים. עבד could be worth a million שקלים, could be worth 5 שקלים, it's fixed. That's called kenas. The she'ela is עדים זוממים קנס or not? Kenas means that really you don't have to pay it, and the Torah gave you a kenas. Rabbi Akiva holds it's a kenas, the Gemara has it's mamon, it's not a kenas. So, I want to explain what is the sevara whether it's kenas or mamon. So, just a quick another five minutes. Uh? I want to just finish this. No, no, no. We talk about what you pay, not not uh only about payment. But that's not mamon either. That's uh that's an onesh. Question is by mamon, when they have to pay because why the Gemara's talking about mamon here because talking about That's not a kenas. We don't call it The word kenas is not they're saying with me a punishment. Kenas means when it comes to pay, is it money that the Torah says that you really owe or the Torah says something you really don't owe, but we want to make it a a קנס. So, he says, so lichora what's the machloket here? What's the two sevarot? You could say the two sevarot are based on this. Cuz based on the sevara, as we said before, it's a problem. We said, according to Rav Chaim what's the peshat? You go back and you say that, how come by מלקות you still give them? Because at the end of the day there wasn't a דין מלקות. You know what, I'll go a step further. One of the dinim by עדים זוממים is, the only time the עדים זוממים have to pay or whatever you do to them is if there was already a גמר דין. בית דין took the עדים, פסקנ׳ד like they said, didn't do it yet, and then you הזם them. If you did it already, you don't kill them or you don't do anything. If there was no גמר דין yet, let's say they came and they said this and this guy מחלל שבת, so בית דין started looking into it, never came to a פסק, and then you הזם them, then you don't do to them. It's only after גמר דין. Oh, because it's a safek? Now, you wanted to have him anyway. They wanted that killed, they came and testified, they wanted, but The question is, if you say איגלאי מילתא למפרע, you know what happens? There was never a גמר דין. There was never, cause the גמר דין was all based on their testimony. Now the בית דין, when they פסקן'd, they פסקן'd because of them. Now that we find out that they're liars, so the גמר דין was a mistake. So there was no real גמר דין. If there's no real גמר דין, how do you make them pay? How can you make עדים זוממין? That means I want to say that the whole din of עדים The one of the הלכות of עדים זוממין contradicts the whole din of עדים זוממין. How could you ever have a din of עדים זוממין? There's a condition that it only comes after there's a גמר דין, and now that there's a din of עדים זוממין, that means that there was גמר דין was a false גמר דין. Mimeila, if the whole false גמר דין, so there was no גמר There's no גמר דין, and you don't make him. So you never could have So it's like a a circle. So you could never have a din of עדים זוממין. You know what the answer is? You're right. It's a קנס. From the side of the din of עדים זוממין, takeh you don't have to pay, but the Torah made a קנס. So if you hold, because it מכאן ולהבא, if it was למפרע, there was a גמר דין. Because only now we're making them פסול, but before there was a גמר דין, so there's a din of עדים זוממין, and that's ממון. But if you hold איגלאי מילתא למפרע, it means it was never a גמר דין. It was never a גמר דין, so there's no reason to be מחייב, and that's why it's קנס. But wait, גמר דין means that they they carried out the No, גמר דין doesn't mean carried out. פסק, they פסקן'd already. Just פסקן'd, yeah. What happens in the hashkafah if you have more than one קנס? One pair of witnesses, The first group, are they together, or Cause if you come together, If you come But do they come together? But did they come together? If they came as one group to testify, the din is if you they're not called עדים זוממין after עד שיזומו כולם. If they come separate, then, you you do to them, yeah. You know what's possible to happen? You know what's possible to happen? He's definitely lying, but it was true. Yeah. Exactly. He's actually lying, but it's true. That's, that's what I was, Yeah. exactly. Now they're investigating, so they investigate, they see like that. I know it depends, as far as, if the guy gets a din of מלקות or not. Got to do מלקות, normally if tied eyes, you don't have to give him מלקות because both both pairs of עדים said the same thing and he get Turns out these guys were going to get rid of them by הזמה. But they saw the other one said that he stole, he's still הוא stole, he's חייב, so he still got to get the מלקות, so. But why? But not because of them. Right. And, and that was the question. If he still was כשר, what did what did they do? You see, I don't know if they would take the second group of עדים if they took the first group. So there would be no קנס. If they took the first group, why would they take the second group of עדים? You don't know how it works. Why is Unless they come together, then you listen to them all. But if they come as two separate groups? It could be, you know, השגחה פרטית, it could be a lot of things. I don't know if they would take it, but If you could just take this occasion and took him so people should Right. they shouldn't think that they hate for nothing. But this, other things? I don't know if they'd take It's just a case of מיתה בידי שמים. How did it work with these? Well, that's what it was, the sevara of the of the Kesef Mishneh and the Rambam. Says, according to that, why don't you kill them if they killed? They got killed already because of them. Because of that, מיתה בידי שמים. The Aibershter would never allow an innocent person to die. So if he died, mistama There's a reason. Mistama there was a reason, so you can't don't kill them. Mistama the guy deserved to die. How does But with anything else, it's not mitah. Well, there he says that it pass over to him. I I talk about He says by mitah, by מיתה בידי שמים, but malkot is not. The Alter, how does he למפרע למפרע? Vadai. Ai, it goes according to the Rambam. איגלאי מילתא. Huh? It well always seems that way, even though would have been mishpachah, trying to find I thought the were going to stay, you know. But he's at his father's his father's house. Oh, yeah? Father's house, yeah. May bring A couple more people, then. So they have They called Manny early. He was in North Miami Beach. He called me, \"Oh, I want to go to the shiur.\" I said, \"I'm on my way.\" Anyway, Morty's in California. Morty's California? Yeah. Yes, it was, yes it is. Morty's in California, again? Mhm. He said we can fly, huh? Commute. And Shoshana got invited to be with your Yeah. Who? Shoshana Gordon. Oh, you know the name? They took Chana to give Chana Who's the who's the first one, for Sharp? Yes, yeah. Sharp. Shoshana. Yeah. Okay, rabotai. Thank you very much. We'll try to do better next week, אם ירצה השם. That was a bit confusing, huh, for Tuesday. Okay, let's go. Is there a farbrengen tonight at the yeshiva? Yeah. Okay.