Q&A: Inquiry
Inquiry
Question
Were it not for the source from "for his theft" and not "for his plot" (Makkot 2b), what would the law be if witnesses testified that someone stole, he had nothing with which to pay, and so he was sold for his theft, and afterward other witnesses came and exposed them as conspiring witnesses? Would this be treated as "as he did" (similar to death), or perhaps like monetary liability, which can be reversed? See Tosafot on Bava Kamma 4.
Answer
The matter is stated explicitly there in the passage:
Rav Hamnuna thought to say: this applies only where there are assets, either his or theirs; but where there are no assets, neither his nor theirs, they are sold. Rava said to him: the Merciful One said, "and he shall be sold for his theft"—for his theft, and not for their plot.
Rav Hamnuna is speaking without the derivation from "and he shall be sold for his theft," which Rava brings afterward. And he says explicitly that if the accused has nothing but they do have means, they are not sold.
Discussion on Answer
It says explicitly that they are sold, or at least that it is not clear otherwise (the Talmud says that only because of the textual source do we learn that they are not sold). So what is the question?
True, one could discuss whether they are sold because they have nothing (while fundamentally they should have had to pay), or because they plotted to have him sold ("as he plotted"). According to the first possibility, this is reversible, because their basic liability is monetary.
I'm asking: were it not for the source of "for his theft" and not "for his plot," what would the law be in a case where neither he nor they have anything?