QUESTION: Raban Shimon bar Yochai suggests a source that "Ayin Tachas Ayin" (Vayikra 24:20) means monetary reimbursement and not literally the blinding of the perpetrator's eye. His source is the verse, "Mishpat Echad Yiheyeh Lachem" (Vayikra 24:22) -- all people who damaged in a certain way, such as by blinding someone, shall be punished in a similar fashion. If the person who damaged someone else is already blind, he obviously cannot be punished by being blinded, and thus not all damagers will be punished in the same way. It must be that all damagers must pay money for the damages they caused, and in that way all damagers are punished in the same fashion regardless of their physical state.

The Gemara rejects this proof by saying that if a person is already blind and thus cannot be punished by being blinded, the rule of "Mishpat Echad" still applies. A blind person's inability to be blinded merely creates a situation of a lack of punishment, and not a change of punishment. "Mishpat Echad" proscribes giving a different punishment (but not no punishment). The Gemara proves that exempting certain people from punishment does not contradict the rule of "Mishpat Echad" from the fact that a person -- who is a Tereifah -- who kills someone is exempt from punishment, even though a healthy person who kills is punished with death. What is the source that a person who is a Tereifah who kills is exempt from punishment? RASHI cites the Gemara in Sanhedrin (78a) that explains that he is exempt because of the rule of "Edus she'Iy Atah Yachol l'Hazimah." Since the witnesses who testified against the Tereifah cannot be killed if they are found to be Zomemim, their testimony is not accepted even if they are not found to be Zomemim. (When witnesses testify that a Tereifah killed and are then found to be Edim Zomemim, the reason why the witnesses cannot be killed is that they did not conspire to kill a healthy person and therefore Beis Din cannot kill them (healthy people) as a punishment, since the Torah says that the punishment must be equal to what they intended to do to the victim.)

REBBI AKIVA EIGER (in Gilyon ha'Shas) asks, how can the Gemara prove anything from the Halachah of a Tereifah? Perhaps "Mishpat Echad" indeed requires that all damagers be punished in the same way, and the reason why a Tereifah is not punished is not that the Torah does not ascribe to him an appropriate punishment. Rather, he is not punished because there is no way to know whether or not he actually killed; the witnesses who testify about him are not reliable since they know that they will not be punished if they are found to be Zomemim. The Gemara earlier (75b) explains that when witnesses cannot be punished as Zomemim their testimony is not reliable since they are not afraid of retribution in the event that they are found to be lying (see RASHI to 75b, DH Heichi Dami). If it would be possible to provide reliable testimony that a Tereifah killed someone, he would be punished. The Gemara in Sanhedrin (78a) teaches that if a Tereifah kills in front of a Beis Din (and thus it is not necessary to have testimony of witnesses to prove that he killed), he is punished with death since the Beis Din knows that he killed.

How, then, does the exemption of a Tereifah from punishment contradict the rule of "Mishpat Echad"?

(a) The NETZIV (in Meromei Sadeh) suggests an alternate interpretation for the Gemara, in contrast to that of Rashi who explains that the Gemara here is based on the Gemara in Sanhedrin. The Netziv explains that the Gemara's words are unrelated to the principle of "Edus she'Iy Atah Yachol l'Hazimah." Rather, the Gemara means that when a Tereifah kills in front of Beis Din and he is punished with death, he cannot be punished in the same way in which a healthy person who kills is punished, since a healthy person loses a healthy life, so to speak, while a Tereifah loses a weak life. Nevertheless, Beis Din punishes him in whatever way they can. The Gemara suggests that in a similar manner, if a person with weak eyesight blinds another person, Beis Din punishes the perpetrator by blinding him since that is the closest they can come to giving him the punishment which any other person receives for blinding someone. Similarly, if a person who is completely blind blinds another person, although Beis Din cannot punish him through blinding, the rule of "Mishpat Echad" is not contradicted since Beis Din has done to him whatever was possible (which, in this case, was nothing).

Rashi does not accept this approach because the words of the Gemara imply that it seeks to prove that it is not a contradiction to "Mishpat Echad" when a Tereifah is exempt from punishment for his act of killing, and not when a Tereifah is punished for killing. Moreover, Rashi might not accept the logic of the Netziv that if a partial punishment does not contradict "Mishpat Echad," then a lack of punishment also does not contradict "Mishpat Echad." Perhaps exempting some people from any punishment while punishing others for the same act is a contradiction to "Mishpat Echad."

(b) The KOVETZ SHI'URIM (2:39:3) suggests an alternate explanation for the Gemara. He points out that the RAMBAM (Hilchos Nizkei Mamon 10) writes that when a Tereifah kills, he is not put to death because he is already considered dead. The Rambam seems to contradict the Gemara in Sanhedrin which gives a different reason for the Tereifah's exemption from the death penalty. The Gemara in Sanhedrin exempts a Tereifah who killed because the testimony against him is not testimony that allows for the possibility that the witnesses will become Edim Zomemim, and therefore the Tereifah is punished with death if he kills in front of Beis Din (see Ra'avad there). What is the source for the Rambam's ruling that a Tereifah is always exempt from death because he is considered to be already dead?

The Kovetz Shi'urim answers that the Rambam's source is the Gemara here, which implies that the reason why the Tereifah is exempt is not simply that the witnesses who testify against him are unreliable. Rather, he is exempt even when his guilt is obvious (such as when he killed in front of Beis Din). The Gemara must intend to exempt a Tereifah from death for a different reason and not for the reason given by the Gemara in Sanhedrin. It is the Gemara here which serves as the source for the Rambam's ruling that a Tereifah is exempt because he is considered to be already dead.

(See also DIBROS MOSHE #56 who explains at length that the Amora'im argue about the reason why a Tereifah is exempt from death, and that is how he explains the Gemara here.)

(c) The question of Rebbi Akiva Eiger is based on the fact that when the Edus is "Edus she'Iy Atah Yachol l'Hazimah," the testimony is not reliable, as Rashi writes (75b). However, it is possible that Rashi explains "Edus she'Iy Atah Yachol l'Hazimah" in this manner only according to the opinion of Sumchus, who makes an exception to this rule in a case where Beis Din knows that the testimony is reliable (for example, when the defendant himself agrees that the witnesses saw him do what they claim he did). However, the Chachamim -- who argue with Sumchus and do not accept testimony that is "Iy Atah Yachol l'Hazimah" even when Beis Din knows that it is reliable -- follow a different logic. They maintain that Edus must be "Yachol l'Hazimah" because of a Gezeiras ha'Kasuv (Devarim 19:18) which teaches that Beis Din must ask the witnesses seven interrogatory questions with regard to the time and place of the event ("Chakiros") in order to enable their testimony to be proven false through Hazamah and receive the same punishment that they tried to inflict, the punishment of Edim Zomemim. (See Insights to 75:3.) This indeed is the implication of Rashi in Pesachim (12a, DH d'Havah Lei Edus) and in Sanhedrin (40a, DH b'Ezeh Yom, and DH Chakiros).

The Gemara here, therefore, might follow the opinion of the Chachamim who argue with Sumchus. This explains why the Gemara proves from a Tereifah's exemption from punishment that "Mishpat Echad" applies even in a case in which some people would be exempt from punishment. A Tereifah is always exempt from punishment even when Beis Din knows for certain that he killed, and nevertheless a healthy person is punished for the same act. (M. KORNFELD)

QUESTIONS: D'Vei Rebbi Chiya learns that "Ayin Tachas Ayin" means monetary compensation from the words in the verse regarding the punishment of Edim Zomemim. The Torah (Devarim 19:21) states that Beis Din must punish the Edim in the same way they wanted to punish the defendant. Why does the verse need to add the words, "Yad b'Yad" ("hand for hand")? The verse must be teaching that the punishment that the defendant would have received for taking off someone's hand is not what one might have thought it to be. Rather, the punishment is to pay money, and therefore the Edim Zomemim are punished by having to pay money rather than by losing their hands.

(a) Why does d'Vei Rebbi Chiya not make an identical inference from the verse in Vayikra (24:20), regarding the Halachah of compensation for bodily damage, which the Gemara itself was discussing until now? The verse there already says that "whatever he (the damager) did must be done to him," so why does it add "Ayin Tachas Ayin"? It must be that the verse intends to teach that Beis Din does not punish the damager with physical damage!

(b) The Gemara explains that after the verse says "Yad b'Yad" with regard to Edim Zomemim, it adds "Regel b'Ragel" because of the words "Yad b'Yad," as the two expressions are found together. Why, though, does the verse say, "Nefesh b'Nefesh, Ayin b'Ayin, Shen b'Shen," before it says "Yad b'Yad"? If the primary point of the verse is "Yad b'Yad" and the other phrases are mentioned only because of the similarity in expressions with the verse in Vayikra, then they should follow "Yad b'Yad" and not precede "Yad b'Yad"! It must be that they, too, are intended to teach something. What laws do those expressions teach?

(a) The verse in Vayikra -- which states that Beis Din punishes the perpetrator by blemishing him in a way similar to the way he blemished his fellow man -- is not clear enough by itself. Perhaps the verse (if it means that the perpetrator is punished physically) applies only to a temporary blemish or to loss of limbs that are less important. This would explain why the verse needs to specify "Ayin Tachas Ayin..." -- to show exactly how the punishment should be administered. In contrast, the verse with regard to Edim Zomemim is very clear, since the Torah already teaches what punishments Beis Din administers to a criminal, and the verse says that the same punishments that would have been administered to the criminal are administered to the Edim Zomemim. Therefore, it is not necessary for the verse to say "Yad b'Yad" if not to teach something new.

(b) The Torah writes "Nefesh b'Nefesh" with regard to Edim Zomemim to teach that the Edim are not killed unless they succeeded in having the verdict, the Gemar Din, issued by Beis Din.

The Torah says "Ayin b'Ayin, Shen b'Shen" with regard to Edim Zomemim before it adds "Yad b'Yad" in order to show that "Yad b'Yad" teaches a Halachah which applies to the other place in the Torah where "Ayin Tachas Ayin" and "Shen Tachas Shen" are mentioned. The Torah teaches that the punishment for damaging someone's eye or tooth is to be administered in terms of something that is given over "from hand to hand" -- money -- rather than physical punishment. That is why the verse there adds "Yad b'Yad."

The Gemara asks why the verse adds "Regel b'Ragel" when both Yad and Regel are not mentioned in the verse in Vayikra which discusses the punishment for damaging a person. The Gemara answers that Regel is included in the verse only because of its similarity to the verse in Shemos (21:24) which mentions both Yad and Regel, and Ayin and Shen.