Талмуд к Макот 1:4

HALAKHAH: “A person convicted of theft on the testimony of two witnesses,” etc. ⁴⁵A differently edited text is in Makkot 1:8; the subject of this paragraph is hinted at in Bava batra 3:6. The paragraph refers to Mishnah 3, not Mishnah 4. Rebbi Ze‘ira said, this implies that a perjured witness is not disqualified by the court but is disqualified by himself⁴⁶In the Babli 72b, Sanhedrin 27a, as opinion of Abbai. The testimony of a proven criminal is invalid since by accepting such testimony the court would become the accomplice of an evildoer, which is forbidden in Ex. 23:1. The question is whether testimony becomes invalid only after the witness has been convicted of a felony or by his felonious act. While in general testimony of a criminal becomes unacceptable only after conviction, perjury carries its own conviction and all testimony rendered after one which was determined to be perjured automatically becomes void.
The argument presented by R. Ze‘ira is based on the end of Mishnah 3: If the first testimony was perjured, the second testimony becomes void. But at the time that the second group of witnesses testified it was not known that the first testimony was perjured. This proves that a later discovery of perjury invalidates testimony retroactively.. Explain it by warning⁴⁷Criminal intent can be proven only if the person was duly warned that his intended action was criminal (cf. Kilaim 8:1 Note 9, Soṭah 7:1 Note 26, Nazir 8:1 Note 46). The court before accepting testimony has to warn the witnesses of the consequences of perjury. If both groups of witnesses were warned simultaneously, there is only one testimony and R. Ze‘ira’s argument does not prove anything., as it was stated: “Rebbi Yose said, when has this been said? For two testimonies with two warnings. But for one testimony and one warning any testimony which is partially disqualified is totally disqualified⁴⁸Babli 73a; Tosephta 6:23..” What does it mean that if it is partially disqualified it is totally disqualified? If they were standing and testifying against him on then tenth of Nisan that he had stolen an ox on the first of Nisan. He slaughtered or sold on the tenth of Nisan. They were shown to be perjured on the fifteenth of Nisan. Any testimony which they delivered between the tenth and the fifteenth of Nisan is retroactively disqualified. Rebbi Abba bar Mamal said, explain it if they deliver their testimony in one group and you cannot infer anything, as we have stated: ⁴⁹Tosephta Bava batra 2:9. A person claims ownership of real estate currently in the possession of another person. Neither party has documentary proof. The claimant can show that he was a prior owner or is the heir of a prior owner. The person in possession claims to have bought or otherwise legally acquired the property. If the person can show by testimony that the claimant had failed to protest during three years in which he had undisturbed and continuous possession, the court will declare him the legal owner. (This is one of the many meanings of ḥazaqah, cf. Ketubot 5:5 Note 100). If the same group testifies three times on the possessor’s behalf, covering three years, and one of their testimonies later was found to be perjured, that and all subsequent testimonies arc thrown out by the court.“They were the first and they were the later [witnesses]. If they were shown to be perjured at first, there is nothing. At the second time, there is one testimony. At the third time, there are two testimonies.” And how is⁵⁰היכי דמי is an expression otherwise known only from the Babli. E and the parallel in Makkot have היכי אמר, idiomatic Galilean Aramaic. that if they give testimony in one group, you cannot infer anything? It comes only based on multiple testimony⁵¹R. Abba bar Mamal’s argument is rejected. Since possession is established by separate testimonies regarding three successive years, it is impossible to explain the Tosephta as referring to a single testimony. R. Ze‘ira’s inference is confirmed..