And you should to do him as he planned to do to his brother (Devorim 19/19).
This possuk speaks about the punishment of two witnesses who testified against a certain person that he deserves the death penalty. After that, two other witnesses come before Bais Din and testify that the first set of witnesses are invalid because at the time of the event on which they testified, they were in a different place and that it is impossible that they witnessed that event. (aid zomaim)
Our possuk teaches that the punishment for such a case is that the first set of witnesses are put to death in the same way that they planned that the defendant would be put to death.
Rashi explains that these witnesses are put to death only if Bais Din has not yet put the defendant to death. However if the second set of witnesses didn’t come to Bais Din until after the defendant is killed they are exempt from being killed.
He learns this halacha from the wording of the possuk, “as he planned” which implies, “as he planned and not as he did”.
Zera Shishmon asks (in the name the sefer Liviyas Chain) that although this din, that if the defendant is killed the aidim zomamiem are not killed, is mentioned in Chazal the Mishne derives it from a different possuk. It is written in the Mishna (Mesechta Makkos 5a) “…. the Tzaddukim contended that the zomamim were put to death only after the accussed was put to death, like it is written in Chumash, “a soul for soul”. The Chachamim said back to them, It says in Chumash you shall do to him what he planned to do his BROTHER. The words “his brother clearly implies that his brother is still alive (because after his is dead he is not his brother anymore!).”
How can we reconcile Rashi who derives it from the words “And you should to do him as he planned to do…” and not as he did, with the Mishne that derives this din from the word “his brother” which implies that his brother is still living?
Zera Shimshon answers that in truth the Tanna of the Mishne holds like Rashi that we learn it from the words “as he planned….” and not from the words “his brother”. (This has to be the case, since we find that the Gemorro in Sanhedrin learns a different din from the words “his brother”.)
The Tanna only wrote that we learn it from the words “his brother” to counter-argue the Tzaddukim who hold that we kill the witnesses ONLY if Bais Din killed the defendant. Since the Tanna knew that the Tzaddukim don’t agree with the din that our Gemorra learns from “his brother” therefore he reasoned that in their minds the words “his brother” are extra. He therefore argued that from those words we learn that the defendant must be alive in order to punish the witnesses. However, in truth he also holds that we learn it out from the words, “as he planned….”
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