I learned this teaching from Dr. Elana Stein Hain. To listen to the same shiur I did to prepare for this blog follow this link: https://hadran.org.il/author-post/a-violation-that-can-be-fixed-din-daf/ Stein writes as an introduction: Some violations in the Torah are followed by positive commandments that apply even if one has already transgressed the violation. A prominent example, as understood by Chaza,l is sending away a mother bird even AFTER one already violated the Torah by taking her along with her chicks (Devarim 22:6-7). The Gemara calls this kind of negative-followed-by-positive commandment a לאו הניתק לעשה or מצות לא תעשה שיש בה קום עשה, and it rules that one who violates such a commandment does not get lashes.
Why shouldn’t a
person who transgressed get lashes even if they fulfill the positive
commandment later? Does fulfilling the positive commandment somehow stem the
damage of the original transgression? Are we giving people a second
chance here, or does this open the possibility of people exploiting the law by
violating it and just making up for it by doing the positive commandment later?
There are two
approaches to a negative-followed-by-positive commandment a לאו הניתק לעשה.
Reish Lakish holds קִיֵּים וְלֹא קִיֵּים (he fulfilled the mitzvah -he didn’t
fulfill). קִיֵּים וְלֹא קִיֵּים (he fulfilled the mitzvah -he didn’t
fulfill) implies one must observe the positive commandment to avoid lashes. If
you don’t observe the positive commandment, you’re liable for lashes. The
Tosefta Makkot 4:6 teaches: “One who takes the mother along with the birds: R.
Yehuda says in the name of R. Yose the Galilean: all who violated negative
commandments that have positive commandments attached, if they performed the
positive commandment, they are exempt from lashes, but if they did not do so,
they are liable to receive lashes.”
Rabbi Yokhanan
holds בִּטְּלוֹ וְלֹא בִּטְּלוֹ (he nullified the possibility to observe
the mitzvah-he didn’t nullify the possibility to observe the mitzvah). בִּטְּלוֹ וְלֹא בִּטְּלוֹ (he nullified the possibility to observe the mitzvah-he didn’t
nullify the possibility to observe the mitzvah) implies that as long as you
have the potential to do the positive commandment you don’t get lashes. An
example of annulling the possibility of observing the positive mitzvah is
sending a mother bird away from the nest before collecting the eggs. The
perpetrator annuls the possibility of observing the positive commandment by
killing the mother bird. Obviously he cannot send away a dead bird.
When do you have
to fulfill the positive commandment?
- תוך כדי דיבור
להתראה-within
a few seconds of the warning
Any violation that
has a positive commandment within it, such as when the negative and the
positive commandments are connected – which sounds like: Don’t take (the mother
with the children), but if you did, fulfill the positive commandment in it. And
when they warned the person: Don’t take; but the person took it anyway, but
then sent away the mother -within a few seconds of the warning, that
person is exempt from lashes even though the violated the law of “Do not take.”
For this is why the Torah connected it to a positive commandment, to say that
if you violated this warning, do this action and be exempted (from lashes). If
one did not perform the positive commandment in it with in a matter of seconds
which we consider to be as part of the original utterance, because the person
violated the official warning, that person is now liable for lashes even if
they end up sending away the mother bird eventually. Rashi Massekhet Hulin 141 ד”ה קיימו ולא קיימו
- כשבית
דין מזהיר לקיים את העשה- When the court warns the
perpetrator to observe positive commandment. The correct version of the
Rif on Makkot 3b should read
immediately after the court warns the perpetrator to correct his violation
(by sending the mother bird away) and he refuses, there is no longer a
possibility to correct the situation. Consequently, the perpetrator is
lashed. Nimukai Yosef Makkot 3b ד”ה קיימו
- כל
שעוד שיש אפשרות לקיים את העשה שבה- Whenever there is a possibility to
observe the positive commandment
If the entire
harvest that was reaped was destroyed or consumed by fire before one gave pe’ah,
one is liable for lashes. [The reason is that] one has violated a negative
commandment and did not fulfill the positive commandment that could correct it.
Similarly, with
regard to leket: When one harvests or binds sheaves, one should not
gather the stalks that fall during the harvest. Instead, one should leave them
for the poor, as it is stated [ibid.]: “You shall not gather the
gleanings of your harvest.” If one transgresses and gathers them – even if one
already ground them [into flour] and baked [them], one must give it to the
poor, as it states [ibid.]: “Leave it for the poor and the stranger.” If
[this produce] is lost or consumed by fire after one gathered it, but before
one gave it to the poor, one is liable for lashes. Rambam, Mishna h Torah,
Gifts to the Poor, 1:3-4
Another example:
Although it is said with regard to a rapist: “He may not send her away as long
as he lives,” since [this prohibition] is preceded by a positive commandment,
as it is said, “He must take [the girl] as his wife,” the Torah made the
prohibition [rectifiable] by the observance of the positive commandment. Thus,
this is a negative commandment [whose violation] can be rectified by [the
observance of] a positive commandment. Lashes are not given [as punishment for
the violation of such a commandment] unless one does not fulfill the positive
commandment, as will be explained in Hilchot Sanhedrin.
Therefore, when
a rapist violates [this prohibition] and divorces [his wife], he is compelled
to remarry her and is not punished by lashes. If, however, his divorcee dies or
is consecrated by another man before he remarries her, or if he is a priest,
who is forbidden to marry a divorcee, he should be punished by lashes. For he
transgressed the negative commandment, and is unable to fulfill the positive
commandment associated with it. Rambam, Mishnah, a maiden virgin, 1:7
- אם
ביטל.ה בידים- the perpetrator actively nullifies the positive
commandment
But according to
the one who learns that if one performed the positive commandment one is exempt
from lashes, but if one did not do so, one is liable for lashes: for
from the time that one transgressed, the violation is complete, but the
positive commandment can uproot the lashes. And when one comes to
court, one must either fulfill the positive commandment and be exempted from
lashes or receive the lashes. According to this perspective, one cannot say
that the rapist is always subject to the ability to remarry her as you
said. For if he does not remarry her as soon as he comes to the court,
they will lash him, for he cannot say that he will do the positive
commandment later, because if so, how is there such a thing as “one who did not
perform”? After all, he can always say, I will do it (in the future). Rashi,
Makkot 15a ד”ה הניחא
To summarize
when the timeline when a violation can be fixed:
Position #1 Immediately;
consequently, it is as if the prohibition never happened.
Position #2 After
the court warns to observe the positive commandment you can fix it the plight
you are in. You are given a second chance.
Position #3 The
observance of the positive commandment is always available at the end of the
story.
Position #4 The
only possibility of receiving lashes is if the perpetrator himself uproots the
possibility of observing the positive commandment. Besides being the most
liberal position, it is also not the halakha,
No comments:
Post a Comment