Is It A Penalty?
‘Why [Did R. Oshaia] Not Deal With False Evidence?’
(Bava Kamma 5a)
The Torah states (Deuteronomy 19:16-19): “If a false witness [the term ‘witness’ is used here as an inclusive noun that refers to two people at least] stands up against a man to testify spuriously against him, then both these two men and those who have the dispute shall stand before Hashem, before the priests and the judges who will be in those days. The judges shall make diligent inquiry; and behold, if the testimony is false and the witness spoke up falsely against his fellow, you shall do to him as he conspired to do to his fellow, and you shall destroy the evil from your midst.”
Commenting on the term “spuriously,” Rashi explains, quoting Tractate Makkot (5a), that it was impossible for the witnesses to have seen what they claim to have witnessed, because a pair of new witnesses claim that the first witnesses were elsewhere at that time.
Rashi also points out regarding “you shall do to him,” that if the false witnesses conspired to have the subjects of their testimony executed but the verdict was not yet carried out, they {the false witnesses) are killed.
Compensatory Or Punitive?
Our daf cites the dispute between the Sages and Rabbi Akiva as to whether the payment imposed on conspiring witnesses (edim zomemim) is compensatory (mammon) or punitive (kenas).
The Sages view such payment as compensatory, that is, a payment commensurate to the actual [or in this case, intended] damage caused. Rabbi Akiva, on the other hand, views the payment as a fine. This dispute relates to R. Oshaia, who lists (supra 4b) numerous types of compensatory damages and does not include edim zomemim among them.
Oshaia did not include false evidence, because he agrees with Rabbi Akiva that edim zomemim are not required to pay (for what they intended to inflict on another) since they admit that they were found to be conspiring witnesses by another court in an earlier case, and the penalty for false evidence is a fine (kenas), which can never be imposed based on one’s own admission.
Non-Recoverable Loss
To understand the view of the Sages, we turn to the Netziv’s (Rabbi Naftali Tzvi of Volozhin) commentary to Rashba (ad loc.), who suggests as follows: The Sages consider the payment of such conspiring witnesses as mammon (compensatory) only in the event the victim suffered a non-recoverable loss.
However, if these witnesses were discredited prior to causing their intended victim a loss, the Sages would be in agreement with Rabbi Akiva that the payment is kenas (a fine, i.e., punitive).
Always Compensatory
Rabbi Elchanan Wasserman (Kovetz Shiurim vol. 2, Kesubbos 107-108) explains that the Sages consider the payment by edim zomemim to be compensatory in all cases, even where no loss was caused to the intended victim.
Rabbi Wasserman explains that the Torah did not simply penalize conspiring witnesses for trying to cause a loss; rather, the decree is that the judgment the beth din initially imposed on the victim, which is compensatory (mammon) in nature, now shifts to these conspiring witnesses: thus, that payment retains its status of mammon.
