In this week’s parshah the Torah discusses the halachos of eidim zomimim. The Gemara in Makkos 2a explains that eidim zomimim is when one set of two or more witnesses testifies against someone, and another set of witnesses testifies that the first set of witnesses was with them and therefore could not have known their testimony. The Torah says that the later set of witnesses is believed and the testimony of the first set of witnesses is disqualified. If beis din had not yet carried out the verdict that the first set of witnesses intended to impose, the verdict is placed on the first set of witnesses. This is known as kasher zamam v’lo kasher asah. Once the verdict of the first witnesses is carried out the witnesses are not punished.
Generally, one only receives lashes for an aveirah that was performed with an action. The Gemara in Temurah 3a lists three different aveiros that are exceptions to that rule: one who does temurah (attempting to switch kedushah onto another animal); swearing falsely; and cursing one’s fellow with Hashem’s name. Tosafos asks: why did the Gemara not also mention eidim zomimim and motzi shem ra, for which one receives lashes and are also aveiros performed with speech alone and without the performance of any other action? Tosafos’s answer: regarding eidim zomimim and motzi shem ra, the Torah says explicitly that one receives lashes; therefore the Gemara did not need to write this.
The Brisker Rav offers another solution to Tosafos’s question. He suggests that the lashes that eidim zomimim and practitioners of motzi shem ra receive are different than the lashes one receives for transgressing another lav in the Torah. Generally, lashes are administered simply as a punishment for transgressing the lav. Regarding eidim zomimim and motzi shem ra, one does not receive lashes for transgressing the lav since the lav did not have an action associated with it. The lashes are administered as a result of one being an eid zomaim or a motzi shem ra. When one transgresses the lav of eidim zomimim or motzi shem ra he attains a status of an eid zomaim or motzi shem ra, and it is that status that causes him to receive lashes.
This can also be the explanation as to why the Gemara in Kesubos 33a and the Rambam (Hilchos Eidus 18:4) say that eidim zomimim do not require a warning in order to receive their punishment. The reason for this is because their punishment does not directly result from a lav. Since their punishment comes from the status that they attained, they do not need to be warned.
We originally find this concept by the parshah of ben sorer u’moreh. The Rambam (Hilchos Mamrim 7:7) says that a boy’s father and mother must bring him to a beis din of three, then bring witnesses who testify that the boy stole from his father and acquired meat and wine with the money he stole, and ate the items after being warned not to. Beis din then administers lashes to the boy. If he repeats the action (stealing, eating the meat, and drinking the wine), his parents must bring him to a beis din of 23. After hearing testimony from witnesses, beis din must check to see if he has two hairs and that the hairs of his lower beard have not completely grown in. If they have grown in, he is exempt from the laws of ben sorer u’moreh. However, if he has two or more hairs and does not have a complete lower beard, and he is between the age of 13 and 13 and three months, beis din stones him.
The Kesef Mishneh asks why the Rambam did not require that beis din check the boy’s hairs before administering lashes. Why did the Rambam only require him to be checked before killing him?
Additionally, the Gemara in Sanhedrin 78b suggests that the laws of ben sorer u’moreh should apply to a minor. But how can the Gemara entertain the possibility that we punish a minor?
Reb Chaim Soloveitchik, the Brisker Rav’s father, in his sefer on the Rambam, writes that the punishment of the ben sorer u’moreh does not directly result from a punishment for transgressing the lav associated with the ben sorer u’moreh. Rather, when one transgresses that lav he attains the status of a ben sorer u’moreh – and a ben sorer u’moreh receives the punishment of death. This explains how the Gemara could entertain the possibility that a minor could be liable for being a ben sorer u’moreh, since minors are only exempt from punishments of lavim. However, even a minor could be punished for being a ben sorer u’moreh. The lashes that a ben sorer u’moreh receives are also for attaining the status of a ben sorer u’moreh – and not for the lav. Yet all the requirements that must be met (i.e. his age and hairs) are only requirements for the part of his sentence whereby he receives death. The lashes are administered even if those requirements are not met. Therefore, the Rambam did not write that beis din must check him before administering lashes.