Send the Mother Bird Away

Makkot (3:4) | Yisrael Bankier | 11 years ago

The third perek discusses different prohibitions, which if violated, are punishable with lashes. One of the prohibitions that are debated is the prohibition of taking the mother bird when it is sitting on its eggs or young – shliuch ha’ken. R’ Yehuda maintains that it would be punishable with lashes while the Chachamim disagree. The Mishnah continues by explaining that a negative commandment that is remedied or followed with a positive commandment – lav ha’nitak le’aseh- is not punishable with lashes. Since the Torah continues with the instruction to send the mother bird away, the Chachamim maintain that this qualifies as a lav ha’nitak le’aseh.

Rashi (Pesachim 84a) provides two reasons for the exemption. The first is that since the situation can be remedied, the person can be saved from punishment. The second is that this category of prohibition is not similar to the prohibition of chasima (muzzling), which is the source for lashes for negative prohibitions.

There is a debate however in the Gemara, between R’ Yochanan and Reish Lakish about what qualifies fulfilling the aseh that detaches the lav. This is important since even in a case of a lav ha’nitek le’aseh, if it the “nitek le’aseh” disappears, then the person can be liable to lashes.**One opinion is that it is dependent on whether the aseh is or can be fulfilled (kaimo ve’lo kaimo). The other position is that it is dependent on whether the person has annulled the aseh (bitlo ve’lo bitlo). There are however two versions of the Gemara found in the Rishonim that thereby provide different understandings of these two positions.

Rashi understands that R’ Yochanan takes the position of bitlo ve’lo bitlo, while Reish Lakish kaimo ve’lo kaimo. The Gemara explains that their debate is connected to another argument of theirs regarding whether a doubtful warning is considered a warning. In other words even if the person having been warned performs the act, it is doubtful whether they will be punished. As we know in order for one to be liable to lashes they must be forewarned. Rashi explains that if the liability hinges on bitlo, the active removal of the possibility to perform the aseh, it is doubtful from the outset whether this will occur. Consequently, the warning prior to the action is doubtful since even if the person does not send the mother way, we are not sure if he will, e.g. slaughter it. Since R’ Yochanan maintains that a doubtful warning still qualifies as a warning, he has no problem with taking the position of bitlo. Reish Lakish who maintains that a doubtful warning is not adequate, takes the position of kaimo.

The Ramban and Ritva however find Rashi’s understanding difficult, since even if it the exemption hinged on kaimo - whether the person fulfilled the aseh - that outcome is also doubtful.¹ They therefore explain the positions of R’ Yochanan and Reish Lakish differently: R’ Yochanan understand that it is dependant on kaimo ve’lo kaimo. As just explained even though whether or not he will be kaimo is doubtful, R’ Yochanan is satisfied with a doubtful warning. Reish Lakish however holds that that is dependent on bitlo ve’lo bitlo. Since bitlo involves an act, a warning can be given at that specific time and if the asehis annulled he is liable to lashes.² 

The Ritva adds in the name of Ramah a slightly different answer. Since the aseh was written in the Torah with the lav, the lav is like the beginning of the prohibition and the aseh the end – they are one concept. If the person is warned when he takes the mother bird and then later slaughters it, it as if he was warned at that point. 

¹ The Tosfot R’ Akiva Eiger however explains that according to the position of kaimo, if Beit Din instructs him to fulfil the aseh and he does not do so immediately he can be liable to lashes. It is not considered a doubtful warning since an action must be performed to exempt himself.

² The Tosfot R’ Akiva Eiger finds this difficult since a negative prohibition was not violated at that point, only a positive one (which is not liable to lashes).

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