Dear Rav,
Would it be possible in the situation of LAV HANITAK LEASEH to fulfill ASE only without first violating the LAV.
Thank you
Boruch Yuabov, NY, USA
I am puzzled by the question. 'Lav ha'Nitak la'Asei' by definition, means a Lav that one violated and that one now comes to rectify with an Asei that the Torah attached to it. If one fulfils the Asei only, without violating the Lav, then it is not a 'Lav ha'Nitak la'Asei'. Right?
Having said that, however, there is a Sugya in Makos (beginning at the end of 14b) which begins with a statement by Rabbi Yochanan, that a 'Lav she'Kadmo Asei' receives Malkos. Rashi defines a 'Lav she'Kadmo Asei' as a Lav which the Torah attaches to an Asei, but where it is possible to fulfil the Asei before violating the Lav (even if one did not actually do so). An example of this is a man who raped a girl, married her and then violated a Lav by divorcing her. The Torah obligates him to take her back forever. He could of course, have married her forever without violating the Lav, making this a Lav she'Kadmo Asei'.
be'Virchas Kol Tuv
Eliezer Chrysler
Shalom uvracha.
I have a follow up question to the exchange below.
What about shiluach haken? When a person sees the bird, he has a mitzvas aseh to send it away and mitzvas lo taaseh not to take it. If he sends it away, he is mekayem a mitzvas aseh without transgressing a lav. If he takes it, now there is a Lav ha'Nitak l'Asheh. The aseh seems to be the very same aseh that he could have fulfilled by never doing the lav.
Thank you very much.
Avraham Lubarsky, Beit Shemesh
Sholom Rav.
You're quite right!
The Ritvo explains that, on Daf 16a, R. Yehudah considers Shilu'ach ha'Kein subject to Malkos because it is a La'av she'Kadmo Asei (even though it is written after the La'av), and the Chachamim disagree with him only because "Shale'ach" implies after he has already transgressed the La'av.
Be'Virchas Kol Tuv.
Eliezer Chrysler.
BS"D
I very much appreciate your response.
Of course all this depends on the issue whether the aseh exists before the person transgresses the lo taaseh or it only exists after the lo taaseh has been transgressed (which I believe is a machlokes Achronim) .
Kol tuv.