COMMENTARY
דף ע"ד
סוגיא הכחשה תחילת הזמה
רבא holds that contradiction is the beginning of הזמה. The principle can be illustrated by an example. Two witnesses testified that Reuven killed Shimon. Two other witnesses testified that Levi was the murderer. A third set of witnesses testified that the first set was with them somewhere else at the time of the murder. Although the first witnesses were contradicted by the second, the third witnesses make them זוממים and are executed. He proves this from a ברייתא of a master who injured his slave where he claims there were three sets of witnesses. The second contradicted the facts of the first. That is הכחשה. The third witnesses claimed the second were with them not at the scene of the crime. The ברייתא concludes they pay the master for the eye proving הכחשה תחילת הזמה.
אביי disagrees. He explains the ברייתא with only two sets of witnesses. The second witnesses did both the הכחשה והזמה. רבא is refuted since there is no הכחשה before הזמה. Either the הזמה came first or it was second but תוך כדי דיבור of the הכחשה.
However there is a question that begs the premise. Why does the master or false witnesses have to pay if he sued the master in court only after he injured both organs?
The verse mentions תחת meaning he goes free in reference to each organ.
The גמרא rejects our משנה as being a proof to רבא as well. Our משנה discusses a case where one set of witnesses testified both about the theft and the slaughter or sale of the animal. They were מוזם about both. Once they were מוזם about the גניבה it is a הכחשה in respect to the slaughter and still they pay for the slaughter. We can infer הכחשה תחילת הזמה! The גמרא answers the הזמה was on the slaughter first so that the testimony concerning the theft still is valid.
The גמרא concludes that the argument of אביי ורבא is also an argument between רבי יוחנן ורבי אלעזר. רבי אלעזר holds that witnesses contradicted in a murder case and then מוזם receives lashes for testifying falsely. If they were warned for the death penalty לאו שניתן לאזהרת מיתת ב"ד how can they get מלקות. Therefore we must conclude once they were contradicted they cannot receive the death penalty: הכחשה לאו תחילת הזמה
