ב׳ בכסלו ה׳תשע״ח (November 20, 2017)

Makkot 15a-b: A Crime Without Punishment

We have learned that there are many Biblical prohibitions that will lead to different types of punishment. Are there any for which there is no punishment at all?

It should be noted that generally speaking, a person will only receive punishment for actions that he did that are prohibited. Were someone to neglect to perform a positive commandment, in most cases, the Torah does not punish him at all; he simply missed out on his opportunity to do a mitzva.

The Gemara on today’s daf mentions a number of situations where a person may commit a forbidden act, and yet the normal punishment of malkot (lashes) would not apply to him.

One such case is a lav she-ein bo ma’aseh – a negative commandment that does not have an action attached to it. The example in the Gemara is someone who takes an oath that he will eat a loaf of bread today, and then the day passes and he has not eaten the bread. In this case Rabbi Yoḥanan explains that as a lav she-ein bo ma’aseh there will be no punishment at all.

Another situation where there is no punishment is in a case of a lav ha-nitak la’asei – a negative commandment that entails performance of a positive commandment. An example of this is the prohibition against stealing (see Vayikra 19:13) that is followed by a positive commandment to return stolen property (Vayikra 5:23).

Although the ruling is the same in these two cases, the mechanism behind them differs. In the case of a lav she-ein bo ma’aseh, we have a situation that is similar to someone who overlooks a positive commandment. He has not done anything that is a punishable offense. On the other hand, in the case of a lav ha-nitak la’asei the person did commit a punishable crime, but the Torah prefers that a different, more equitable, correction be made to the act, rather than simply offer a random punishment to the offender.

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