5756 - #23

The Mechanics of Chet

The mishna in T.B. Makkot 17a[1] introduces us to the famous Talmudic category of lav she'nitac l'aseh, the prohibition connected to [lit. - that transforms into] a positive command. The mishna states: "...if you take the mother bird with her nest [which contains eggs or baby birds],[2] R. Yehuda says one receives lashes and does not send away the mother bird, the Chachamim say one sends away the mother bird and does not get lashes. This is the general rule: Whenever a negative command includes a positive command, one does not receive lashes [for violating the prohibition]."[3] Essentially a violation of a Biblical prohibition is deserving of lashes. In the case of the lav she'nitac l'aseh, though, the existence of this connected positive command mitigates against the execution of this punishment.

Exactly how the connected aseh acts to block the punishment is a matter of Talmudic debate. The gemara is concerned with the circumstances whereby one, because the aseh is inoperative, would receive lashes in these cases. Two conceptual options are presented: bittul v'lo bittul and kimu v'lo kimu. Rashi[4] explains that the first view, bittul v'lo bittul, maintains that until the violator personally destroys the possibility of doing the aseh, he/she is not subject to lashes. It is only if the violator personally takes action to make the performance of the aseh impossible that he/she becomes deserving of punishment. The second view, kimu v'lo kimu, maintains that the violator is actually subject to lashes from the point of infraction, but through the performance of the aseh, he/she can avoid lashes. Thus, if the aseh is not performed before the court carries out the punishment, he/she will receive lashes.[5]

Rashi further explains the underlying conceptual basis of this disagreement. Those who accept bittul v'lo bittul believe that one has not completed the violation of the lav - and thereby become deserving of lashes - until he/she has destroyed the connected aseh. According to this theory, the violation of a lav she'nitac l'aseh is one extended action that begins with the infraction of the original lav but is only concluded with an action that makes the performance of the aseh impossible. Lashes are therefore only deserving at this point because only at this point has the violation of the lo ta'aseh been completed. Those who accept kimu v'lo kimu, though, believe that with the original infraction of the lav, one did completely violate the prohibition and thereby become deserving of lashes. The aseh works in the realm of the punishment: if you happen to do the aseh before the court punishes you, you circumvent the lashes. Simply, according to bittul v'lo bittul, you don't get lashes because you have not yet completed an action that is deserving of lashes. According to kimu v'lo kimu, you don't get lashes because the performance of the aseh takes the place of the punishment.

This distinction presents a most interesting insight into the workings of a chet, specifically the violation of a lo ta'aseh. Does a person sin at the very point that he/she acts contrary to G-d's command or is the fullness of a sin committed only when the effect of this action is felt? For example, one is commanded to (a) leave shi'checha, forgotten grain, for the poor and (b) not to retrieve it.[6] This case is a lav she'nitac l'aseh for if one did retrieve that which was forgotten, he/she is to perform the aseh, and thereby avoid lashes, by returning the shi'checha to the poor. According to kimu v'lo kimu, the individual upon taking the shi'checha fully violates a lav and becomes deserving of lashes. The aseh rectifies the matter and removes the obligation of lashes but it does not change the fact that, upon taking the shi'checha and therefore not following G-d's directive, a full sin was committed. The fact that the poor, in the end, still received the shi'checha, mitigates against the punishment but does not effect the essence of the sin. A defiant action in itself is the essence of sin.

According to bittul v'lo bittul, though, a full sin is not committed until the effect of the action is permanent, until the person has absolutely made it impossible for the poor to receive the shi'checha. The aseh by rectifying the result and removing the effect of the original action does not simply rectify a sin but actually, through removing the effect of the original action, prevents the completion of the sin. The fact that the poor, in the end, receive the shi'checha, affects the essence of the original action as a sin. The negative outcome of sin is its essence.

Chet is the defiance of Hashem's Will. Do we measure this defiance in terms of action or effect? Ultimately, our understanding of chet may demand that we perceive both sides of this conceptual pole. Dynamically, a human being is in tension, fluctuating between drives. For a moment a person may succumb to an erroneous passion but then avoid the consequences by correcting his/her behaviour. To ignore the significance of even a momentary mutiny is to ignore the significance of the Divine command. To ignore the churning dynamics of the human condition, though, is to ignore the human reception of Command.

Chai Hecht and Rabbi Benjamin Hecht e-mail



[1] See also T.B. Chullin 141a.

[2] The exact nature of this prohibition - whether it involves taking the mother bird with the nest or the mother bird alone or the children (eggs or baby birds) alone - is a matter of much halachic discussion. See, for further study, Minchat Chinuch, mitzvah 545. There is, in fact, also much discussion on the exact nature of the positive command. See, further, Torah Temimah, Devarim 22:7.

[3] An investigation of the essence of this disagreement between R. Yehuda and the Chochamim is outside the purview of this Spark. It is suffice to say that shilu'ach hakan as a lav she'nitac l'aseh in itself presents a most interesting case for study. The fact that, according to the Chachamim, one who violates this prohibition can rectify the matter and avoid lashes by re-placing the mother bird on the nest and sending her away is a concept that demands further investigation. In reference to the idea that the positive command connected to the lav she'nitac l'aseh is intended to rectify the matter, see T.B. Makkot 15a and Rashi, Makkot 4b, d.h. lomar she'ein lokin.

[4] Rashi, Makkot 15a, d.h. hanicha l'ma'an detani.

[5] See, however, Rashi, Chullin 141a, d.h. kimu v'lo kimu and d.h. zeh ha'klal. See, also, Tosfot, Makkot 15a, d.h. hanicha l'ma'an detani; Meiri, Makkot 15a; Pnei Yehoshua, Makkot 15a. It should be noted that this explanation of this conceptual disagreement is far from universally accepted and that many other rishonim explain these concepts, especially kimu v'lo kimu, in a different manner.

[6] See Chinuch, mitzvot 591, 592.

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