Tosafot on Bava Kamma 4b:12:1

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12 ‎[1] And conspiring witnesses. Zom’mim witnesses are disqualified by a second pair of witnesses who testify that the first pair could not possibly testify about the subject because they were elsewhere with us, the second pair, at the time the proceeding were supposed to have taken place. The rule of Zom’mim witnesses is that they are penalized with the punishment that they wanted to inflict upon their victim. If they were testifying about a capital offense, they are put to death. If it was a financial matter, they must pay their intended victim the amount that they said he was obligated to pay.

In capital cases there is a very interesting rule for the zom’mim witnesses. They are liable as long as their intended victim has not yet been put to death. If however, he has already been executed, they are not liable for the death punishment. This is derived from the verse that describes their punishment as כאשר זמם as they planned to do, ולא כאשר עשה but not as they actually did. Tosafot discusses the application of this rule to a financial offense. Why does Tosafot choose this venue to discuss this matter? Two reasons are offered by the Acharonim:

A) The Braita is listing zom’mim witnesses as a damager. If he is liable only when the verdict is not carried out, how can he be listed as a damager? When he actually damaged by having the victim pay, he is not required to pay. When he is required to pay, the victim did not suffer any damages. Since the Braita list him as a damager, it must be that he is required to pay even if the verdict was already carried out.

B) The Gemara later calls the payment of zom’mim witnesses’ ממונא a financial payment as opposed to a קנס a fine. If the rule was that he only pays when the verdict was not carried out, how could one possibly say that this is a financial payment and not a fine? Tosafot needs to show us how we know that they pay even after the verdict has been carried out.

Riva explained: that even if the victim already paid based on the testimony of the zom’mim witnesses, they are liable to pay the victim. The rule “as they planned but not as they did” does not exempt them in financial matters because the unjust payment can be returned to the victim. Capital punishment is final. It cannot be undone. When somebody pays money on the basis of false testimony, the money can always be returned to its rightful owner. In this context one never really can be exempted because of ולא כאשר עשה, for in financial matters כאשר עשה is never really final.

• Tosafot offers another explanation for the ruling that zom’mim witnesses must pay in financial matters even if the verdict has already been carried out.*** And R’I explains that the reason offered** by Riva is unnecessary, because as far as financial matters are concerned we can hold them liable for their false testimony by a kal v’chomer. If one is liable for planning to wrongly cause his victim to pay, he should certainly be liable if he did already pay. **For in regard to money matters we can punish based on a kal v’chomer.

And that which the Gemara says in that when they already killed the victim, they,** the witnesses, are not killed, that is because we cannot inflict capital punishment based on a kal v’chomer. R’I understands that כאשר זמם is not an exemption for one who already did. If it were an exemption it would apply equally to money matters as to capital offenses. Rather, it is a statement that the Torah specifically punished the witnesses when the verdict was not executed. Any other conviction must be based on a new derivation. Kal v’chomer can be used to establish a punishment in money matters, but not in capital cases.

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Version: Tosafot, Translated by Jan Buckler.

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