WHAT IS CONSIDERED LAV SHE'EIN BO MA'ASEH? [lashes: Lav she'Ein Bo Ma'aseh]
Rav Mari - (R. Yanai): One who offers Kodshim with improper intent is lashed - "Lo Yechashev".
Question (Rav Ashi): One is not lashed for a Lav without an action!
Answer (Rav Mari): He holds like R. Yehudah, who says that one is lashed for such a Lav.
Makos 4b: R. Yehudah holds that one is lashed for Lav she'Ein Bo Ma'aseh. He learns from the Tzad ha'Shavah of (what is common to) Motzi Shem Ra and Edim Zomemim
16a (Beraisa - R. Yehudah): "Lo Sosiru (do not leave over from the Korban Pesach until morning)... veha'Nosar... ba'Esh Tisrofu (burn what is left over)" - the Lav is Nitak l'Aseh (an Aseh fixes it), therefore one is not lashed for it.
Reish Lakish infers that had the Torah not given an Aseh, one would be lashed for it, even though Ein Bo Ma'aseh.
(R. Yochanan citing R. Yehudah citing R. Yosi ha'Galili): The only Lavim without an action for which one is lashed are swearing (falsely), Temurah and cursing a person with Hash-m's name.
Temurah 3b - R. Yochanan (to a reciter of Beraisos): Do not include Temurah, for his words do an action (they are Makdish an animal).
Rambam (Hilchos Sechirus 13:2): One is lashed for muzzling, even if he muzzled it verbally (shouted at it when it was about to eat).
Magid Mishneh: The Meforshim ask that the only Lavim without an action for which one is lashed are swearing, Temurah and cursing with Hash-m's name. (One is exempt for all other Aveiros of speech. This shows that bending one's lips is not an action! The Rambam (Hilchos Sanhedrin 18:2) also rules like this, which contradicts his ruling here! Bending the lips is an action regarding muzzling because it produces an action. Through his voice, the animal is muzzled. If speech does not produce an action, it is not considered an action. Temurah is like muzzling, for through it an animal become Kodesh. This is why R. Yochanan told the Tana 'do not list muzzling'. The Rambam cited the teaching, which lists muzzling, even though in the conclusion it was not necessary, since it produces an action. I could say that every Lav that cannot be through an action, only through speech, is not called an action. Since muzzling is a full action, even if it is done through voice it is like an action. Even though the Gemara brought a proof for R. Yochanan from Temurah, this is a Kal va'Chomer (all the more so one is lashed for muzzling, which is a full action).
Lechem Mishneh: The Magid Mishneh holds that the Rambam considers Temurah a Lav with an action, for his voice does an action. This is wrong. The Rambam explicitly writes in Hilchos Temurah (1:1) that Temurah has no action. It is difficult to say that one is lashed for muzzling because it can be done through an action. Sanhedrin 65b tried to prove from muzzling that R. Yochanan holds that voice is considered an action. Other Meforshim explain like Tosfos, that we asked about Edim Zomemim. Also, why does the Rambam say that Temurah is not an action? R. Yochanan said that it is! Also, why did the Rambam ask that there should not be lashes because it is Nitak l'Aseh? If it is a Gezeras ha'Kasuv that one is lashed even though it has no action, this also answers the question from Nitak l'Aseh! Rav Dimi answered that even though it is Nitak l'Aseh, one is lashed because there are two Lavim. He holds that it has an action, through his words; it is not a Gezeras ha'Kasuv. However, this is unlike the Rambam. How can the Magid Mishneh say that the proof for R. Yochanan was based on a Kal va'Chomer? R. Yochanan says that Temurah is an action! Even if he retracted, also he must explain why he is lashed! If he must say that it is a Gezeras ha'Kasuv, also Reish Lakish can say so! Rather, the Rambam rules unlike R. Yochanan, for the Gemara calls Temurah Ein Bo Ma'aseh. Muzzling is an action, like the Magid Mishneh said. The Gemara asked from Edim Zomemim, because they can write their testimony.
Sefer ha'Chinuch (345,346): It seems that one is not lashed for selling an Eved Ivri on a selling block (or overworking him), because it is possible to transgress (verbally,) without an action.
Minchas Chinuch (DH v'Hinei and DH v'Eino): The Rambam does not list these among Aveiros for which one is lashed. The Magid Mishneh says that one is lashed for a Lav that can be transgressed through an action. He can explain that one is not lashed for selling an Eved Ivri, since Beis Din kills for this (if he kidnapped and sold him). He can explain that one is not lashed for overworking him, for it is never through an action. The Sefer ha'Chinuch disagrees (and needed to exempt for a different reason).
Mishneh l'Melech (Hilchos Malveh 4:6 DH Hinei): The Nimukei Yosef says that witnesses who signed a loan document for Ribis are disqualified, for anyone who is lashed is disqualified. From the time they set the Ribis, the entire Isur was done. Bnei Shmuel rejected this, for they did not do an action. I say that signing a document is an action. Also the Arev (guarantor) can transgress through an action, e.g. he took the money and gave it to the borrower, or he signed on the document. Sefer ha'Chinuch says that the witnesses are not lashed, for it is unreasonable to punish them more than the lender, who is not lashed (since he can correct his Lav through returning the Ribis). He did not exempt due to Ein Bo Ma'aseh. I say that even if they did not sign the document, since they can transgress through an action, they are lashed even without an action. A proof is from the Rambam in Hilchos Sechirus, like the Magid Mishneh explained. It is not clear if witnesses on a loan with Ribis without a document are lashed.
Tosfos (Shevuos 21a DH Chutz (1)): In Bava Metzia 90b, R. Yochanan says that muzzling through voice is an action. We must say that there, his voice does an action (stops the animal from eating), so it is like Temurah, which R. Yochanan calls Yesh Bo Ma'aseh. If so, in Sanhedrin (65b), why did we ask a contradiction in R. Yochanan from muzzling? We must say that we asked from muzzling to Edim Zomemim, who obligate the litigant through their speech.
Tosfos (Shevuos 21a DH Chutz (2)): Why don't we say that also Motzi Shem Ra and Edim Zomemim are Lav she'Ein Bo Ma'aseh for which one is lashed? Even though Bava Kama 5a calls Edim Zomemim an action, and R. Yehudah obligates Motzi Shem Ra only if he hired false witnesses, they are called Ein Bo Ma'aseh in Makos. We must say that since the Torah explicitly obligated lashes for them, we did not need to list them. Alternatively, we do not learn from a general rule, even if it lists the exceptions.
Ritva (Makos 4b DH uv'Kulah): Our Sugya holds that Lav she'Yesh Bo Ma'aseh is only when the Lav itself has an action, but not when through his words an action results, e.g. Temurah. Even though Motzi Shem Ra and Edim Zomemim have an action through Beis Din, they are considered Ein Bo Ma'aseh. However, in Bava Kama some consider Motzi Shem Ra to be Yesh Bo Ma'aseh because it comes to an action through Beis Din. This is unlike our Sugya.
Aruch l'Ner (Makos 4b DH v'Ayen): According to the Magid Mishneh, why is Motzi Shem Ra considered a Lav without an action for which one is lashed? One can do it through an action, i.e. he wrote that she was Mezanah! The Sha'ar ha'Melech (Hilchos Chametz u'Matzah 1:3) challenged the Magid Mishneh, from the Rambam obligates lashes for one who bought Chametz during Pesach (but not for one who owned it from before Pesach). The Acharonim misunderstood the Magid Mishneh. There is no source to lash for a Lav that can be done through an action if one did not do an action. He said so only regarding muzzling, since the Torah expressed the Lav like a Ma'aseh. When it is written like a Lav she'Ein Bo Ma'aseh, e.g. "Chametz will not be seen (in your domain during Pesach)", we do not say that one is liable because he could transgress through an action. Therefore, we cannot challenge the Rambam from Chametz or Motzi Shem Ra.
Aruch l'Ner (DH bi'Gemara): Here we say that Motzi Shem Ra and Edim Zomemim are Ein Bo Ma'aseh. In Bava Kama (5a) we say that Motzi Shem Ra is speech that has an action, and it is called an action! Tosfos (Bava Kama 5a DH Dibura) says that this is like R. Eliezer ben Yakov, who obligates Motzi Shem Ra only if he had Bi'ah. Do not answer that in Makos, R. Yehudah holds like Chachamim, who obligate without Bi'ah. R. Yehudah obligates only if he hired false witnesses, and Tosfos says that also this is an action! Tosfos (Shevuos 21a) says that even so, it is considered Ein Bo Ma'aseh. The Ritva says that the Sugyos argue with each other. This explains why here, R. Yehudah learns lashes for Lav she'Ein Bo Ma'aseh from a Tzad ha'Shaveh, and on 16a he infers from Nosar (it is Nitak l'Aseh to exempt from lashes). That Sugya holds that R. Yehudah does not learn from a Tzad ha'Shaveh, for he considers Edim Zomemim and Motzi Shem Ra to have an action. Tosfos and the Ritva argue about whether a Chiyuv due to an action and something without an action, is considered Ein Bo Ma'aseh. Their argument depends on Zevachim 29b, in which R. Yanai obligates lashes for offering Kodshim with improper intent. He holds like R. Yehudah, who lashes for Lav she'Ein Bo Ma'aseh. There, he transgresses through an action and intent at the time. If Motzi Shem Ra is considered Yesh Bo Ma'aseh because he needed to do an action first, all the more so Mefagel is an action, for he must do an action at the same time as the intent. The Gemara calls this Ein Bo Ma'aseh. This is a proof for Tosfos that any Lav that is not finished through an action alone is called Ein Bo Ma'aseh. The Ritva must say that this is unlike the Sugya in Bava Kama.