Is It A Penalty?
‘Why Not Deal With False Evidence?’
(Bava Kamma 5a)
The Torah (Deuteronomy 19:16-19) states, “If a false witness [the term ‘witness’ is used here as an inclusive noun referring to at least two people] 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 of 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 word “spuriously,” Rashi explains, quoting Tractate Makkos (5a), that the witnesses testified to something that was impossible for them to have seen since another pair of witnesses testify that they saw the first pair elsewhere at the time of the incident.
Rashi also writes, regarding “you shall do to him,” that if the false witnesses conspired to have the subjects of their testimony executed, they themselves are executed instead.
Compensatory Or Punitive?
Our daf cites a 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 maintain it is compensatory – a payment commensurate to the damage that would have been caused by their testimony. Rabbi Akiva, on the other hand, views the payment as a fine.
This dispute is tied to a list compiled by R. Oshaia (supra 4b) of the numerous types of compensatory damages; he does not include the punishment of edim zomemim on it.
Non-Recoverable Loss
To understand the view of the Sages, we turn to the commentary of the Netziv (Rabbi Naftali Tzvi of Volozhin) to the Rashba (ad loc.), who suggests as follows: The Sages consider the payment of edim zomemim compensatory only if the victim suffered a non-recoverable loss. If the witnesses, however, were discredited prior to causing their intended victim a loss, the Sages agree that the payment is a kenas (i.e., punitive).
Always Compensatory
Rabbi Elchanan Wasserman (Kovetz Shiurim vol. 2, Kesubbos 107-108) argues that the Sages consider the payment compensatory in all cases, even when no loss was caused to the intended victim. He explains that the Torah did not simply penalize edim zomemim for trying to cause a loss; rather, the decree calls for shifting the judgment beis din imposed on the victim – which is compensatory (mammon) in nature – to the edim zomemim.