Lesson 35: Behar-Bechukotai

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• Mechanisms of annulment
• The relation among rules of annulment
• Between legal effect, fulfillment, and reward

Summary

This week’s essay addresses the rule that a prohibited act may be halakhically ineffective. According to this principle, if a person acts against the Torah’s instructions, his act does not achieve its legal result; that is, the halakhic outcome is annulled. We will discuss the dispute between Abaye and Rava about this rule, the practical halakhic ruling, and the conceptual meaning of the rule itself.

In the end, we will present three directions for understanding this principle, as they appear among early and later authorities:
1. a lack of power to act against the Torah’s will;
2. annulment whose purpose is to prevent the prohibited state from coming into being;
3. annulment as a penalty imposed on the offender.
Along the way, we will examine the identification between prohibition and normative reality, and again the relation between transgression and prohibitory command, on the one hand, and punishment, on the other.

In the final chapter we will discuss the relation between this rule and two other rules of annulment: the rule that Scripture must repeat a requirement in order to make it indispensable, and the rule of a commandment that comes through a transgression. On that basis we will define three planes of discussion in every commandment or prohibition: legal effect, fulfillment/transgression, and reward/punishment. The rule that a prohibited act is ineffective deals mainly with the first plane; the rule of a commandment that comes through a transgression deals mainly with the second; and the rule that Scripture must repeat a requirement in order to make it indispensable also deals with the first.

On the Principle that a Prohibited Act Is Ineffective

A Look at Mechanisms of Annulment in Halakha

Introduction

In Parashat Bechukotai, the Torah states twice a unique law concerning one who tries to transfer the sanctity of a consecrated animal to another animal. In such a case, both animals remain holy. At first glance, this is a kind of biblical penalty, as is implied by Maimonides at the end of the Laws of Temurah, and we discussed that in our essays on this portion over the past two years. Closer examination of the Sages’ discussions of this passage reveals a number of more general and more interesting aspects. This week we will deal with one of them: the question whether a prohibited act is ineffective. This discussion is vast, and here we can only touch on a few of its principled aspects.

The Law of Temurah

In the passage on valuations, the Torah discusses various ways of removing sanctity: valuation, redemption, and various laws of reclamation. In that context we find two verses that teach the law of temurah (substituting one animal for another in the realm of sanctity), in Leviticus 27:9-10:

If it is an animal of which one brings an offering to the Lord, then anything that one gives from it to the Lord shall be holy. He shall not exchange it or substitute it, good for bad or bad for good; and if he does substitute one animal for another, then both it and its substitute shall be holy.

The verses speak about an animal that was consecrated, after which the one who consecrated it regrets the act and wants to transfer the sanctity to another animal. The Torah makes two basic determinations about such a case:
1. There is a negative commandment forbidding temurah with a consecrated animal.
2. One who violates the prohibition and does so does not accomplish his goal: both animals remain holy.

This is reflected also in the enumeration of the commandments. There is, in this matter, a negative commandment: “not to substitute consecrated things” (see Sefer HaChinukh, commandment 351, and Maimonides, Sefer HaMitzvot, negative commandment 106). There is also a positive commandment: “that one who substitutes a sacrificial animal for another animal causes both to be holy” (see Sefer HaChinukh, commandment 352, and Maimonides, Sefer HaMitzvot, positive commandment 87). An entire tractate of the Talmud is devoted to these laws, Tractate Temurah, and Maimonides devotes a collection of laws to them in the Book of Sacrificial Service.

Later in the same passage, the law of temurah is repeated, this time in the context of the tithe of cattle and sheep, in Leviticus 27:32-33:

Every tithe of herd and flock, every tenth animal that passes under the rod, shall be holy to the Lord. He shall not inspect whether it is good or bad, nor shall he exchange it; and if he does exchange it, then both it and its substitute shall be holy; it may not be redeemed.

It is not clear from the context why the Torah needs to repeat the law of temurah in connection with the tithe. In our essays on Parashat Bechukotai from 5765-66, however, we discussed a unique law concerning an animal tithe that became mixed up because of a counting error, where sanctity takes effect on both. As we saw there, this is a special law that is not necessarily related to the ordinary law of temurah, and we will not address it here.

The Temurah Discussion

At the beginning of Tractate Temurah, a very fundamental dispute is recorded between Abaye and Rava regarding the law of temurah, and as the discussion unfolds it becomes clear that this dispute branches out across the breadth of the Talmud.

The point of departure is the Mishnah at the beginning of Temurah, which states:

Anyone can effect temurah, both men and women. Not that a person is permitted to do so; rather, if he did, it takes effect, and he receives forty lashes.

There are two novelties here: temurah does take effect, and Rashi explains there that this means that both animals are holy, as stated explicitly in the verse; and in addition, one receives lashes for violating the prohibition of substitution.¹ In that context, the discussion in Babylonian Talmud, Temurah 4b records a dispute between Abaye and Rava:

Abaye said: With regard to anything about which the Torah said, “Do not do it,” if one nevertheless did it, it takes effect. For if you were to think that it does not take effect, why would he be flogged? Rava said: It takes effect not at all, and the reason he is flogged is that he transgressed the command of the Merciful One.

Abaye argues that whenever the Torah forbids us to do something, if we transgress and do it, the act takes effect. His proof comes from the punishments found in the Torah, since if the act did not take effect, he would not be flogged. If the act could not produce any result against the Torah’s will, there would be no reason to administer lashes.

There is an assumption here that one cannot administer lashes if the transgressive act has no result in the world. It is important to emphasize that the plain sense of Abaye’s language suggests that there can still be a transgression even without any worldly result. The transgression is the very act of violating God’s will. That is why Abaye does not bring proof from the mere existence of a prohibition, but specifically from the fact that one is flogged for transgressing prohibitions.

Rava, by contrast, argues that if the Torah forbids something, then one cannot legally accomplish it. The question then becomes: for what, exactly, is the offender flogged? The answer is that he is flogged for having transgressed the divine command—for having tried to act against the Torah’s instruction—even if in the end he did not succeed.

At this point, a question arises from the very passage of temurah, for there we see that the act of temurah does succeed even though the Torah forbids it. Indeed, the Gemara raises this objection against Rava on Temurah 5b:

But consider temurah. The Torah said, “He shall not exchange it or substitute it,” and yet the tanna taught: It is not that a person is permitted to substitute; rather, if he did substitute, it takes effect, and he receives forty lashes. Evidently it does take effect. This is a refutation of Rava.

The proof the Gemara brings in support of Abaye rests mainly on the wording of the Mishnah, which implies that if one did substitute, the substitution is effective. What is present in the Mishnah that is not already present in the Torah itself?

Apparently, with respect to the Torah’s own text, there was room to argue like Rava, because the one attempting temurah did not really succeed in his scheme. After all, his goal was not merely to place sanctity on the second animal, but to remove sanctity from the first. Indeed, it is plausible that his main concern was precisely to remove the sanctity from the first, while placing sanctity on the second was only the means of achieving that end.² If so, his desire to remove sanctity from the first animal did in fact fail. The result is that the biblical section of temurah specifically points toward the principle that a prohibited act is ineffective. That is why the Gemara brings proof from the Mishnah, where it is made clear that this result is counted as success—that is, temurah is considered to have taken effect.

But now the difficulty shifts to the Mishnah itself. Why should this be so? Why call such a state “if he did substitute, it takes effect”? At first glance, the fact that sanctity takes effect on both animals is itself based on the assumption that the act of substitution took effect, and the Torah penalized him by leaving the sanctity on the first animal as well. In other words, at the most basic level the temurah did succeed, but the removal of sanctity from the first animal was prevented by an explicit penalty. Thus, the novelty of the Torah in the passage of temurah is that beyond the general principle that an act done against the Torah does take effect, here there is an additional penalty. This would imply that in all other cases in the Torah, where there is no further novelty, an act done against the Torah’s command does indeed succeed. As we will soon see, this is exactly how the Gemara later explains Abaye’s view.

In any event, the Mishnah is difficult for Rava. The Gemara answers:

Rava could say to you: There it is different, for the verse states, “Then both it and its substitute shall be holy.”

The Torah’s novelty there is not a side point, as Abaye’s challenge had assumed. The novelty is precisely this: in temurah the act truly does take effect. According to Rava, the Torah’s innovation is not merely the penalty by which the first animal remains holy; even the sanctification of the second animal is itself a novelty, because ordinarily a prohibited act is ineffective. Therefore one may infer that wherever the Torah did not speak explicitly, the halakha remains that a prohibited act is ineffective.

The Gemara concludes by explaining Abaye’s opinion:

And according to Abaye, had the Merciful One not said, “Then both it and its substitute,” I would have said: this one goes out and that one comes in. Therefore Scripture teaches us otherwise.

This is exactly what we said above. According to Abaye, the Torah’s novelty is only secondary. Without the special verse, it would have been obvious that the temurah works and the sanctity passes from one animal to the other. The Torah did not innovate that; it added only that even though the general law is that a prohibited act takes effect, here there is a penalty, so that the sanctity does not leave the first animal. Put differently: according to Rava, the novelty in temurah is that the second animal becomes holy; according to Abaye, the novelty is that the first remains holy.

The Halakhic Ruling

What is the halakha in this dispute? At first glance, it is not even clear why there should be any need to rule in such a matter. Superficially, this dispute would seem to have no practical legal consequence, since it concerns only meta-halakha. Yet practical ramifications are already visible within the Gemara itself. And indeed, Maimonides’ rulings show that the halakha does have to be decided in this discussion, although it is well known that his rulings here seem to contradict one another. In some places he appears to rule like Abaye, while in others he seems to rule like Rava.

For example, there are several categories in which, even if temurah is attempted, it certainly does not take effect. Thus communal offerings and offerings owned in partnership do not undergo temurah (see Babylonian Talmud, Temurah 2b). At first glance, if a communal offering or a jointly owned offering were subjected to attempted temurah, the question whether the actor receives lashes would depend on the dispute between Abaye and Rava. According to Abaye, who says lashes are for the resulting legal effect, there would be no lashes here. According to Rava, who says the lashes are for having transgressed the divine command, there would be lashes here too, for the prohibition applies to them as well.³

Maimonides rules in Laws of Temurah 1:1:

Anyone who effects temurah receives lashes for each and every animal for which he makes substitution, as it is said: “He shall not exchange it or substitute it.” Even though he performed no action, it was received by tradition that for any negative commandment that involves no action one is not flogged, except in three cases: one who swears, one who makes temurah, and one who curses his fellow by using the divine Name. In these three prohibitions it is impossible for there ever to be an action at all, and yet one is flogged for them. And why is one flogged for temurah, although its prohibition is linked to a positive commandment, as it says, “And if he does substitute it, then both it and its substitute shall be holy”? Because it includes a positive commandment and two negative commandments; and further, because its negative commandment is not parallel to its positive commandment, since communal offerings and offerings of partners do not undergo temurah. If they did attempt temurah, although they are warned not to do so—

You thus find that when an individual effects temurah, the substitute becomes holy, and even if he did so on the Sabbath he receives forty lashes. But if one of the partners effects temurah, or one effects temurah with one of the communal offerings, since he has a share in them, he receives lashes, but the substitute is not holy.

At the beginning of his remarks, Maimonides notes that one who makes temurah is flogged even though this is a prohibition involving no physical act, and even though it is a prohibition linked to a positive commandment. He then says that the positive and negative commandments are not fully overlapping in content, since with communal offerings and offerings of partners the negative prohibition remains—one may not attempt temurah—but the positive commandment does not apply, that is, the second animal does not become sanctified. At first glance, this proves that he rules like Rava, for he imposes lashes on communal offerings and on partners even though their temurah is not effective. The lashes are for having transgressed the divine command.

One should note that there should be a difference between an individual and communal or jointly owned offerings not only with respect to punishment, but in the laws of temurah themselves. We saw that according to Abaye, the novelty of the Torah in ordinary temurah, that of an individual, is that the first animal also remains holy. Without that novelty, only the second animal would be holy, because the general halakha is that an act against the Torah does take effect. According to Rava, however, the unique novelty in the laws of temurah is that the second animal becomes holy. Without that novelty, only the first animal would remain holy, because an act against the Torah’s will is ineffective. If so, with communal offerings and offerings of partners, where the special novelty of temurah was not stated, according to Abaye the first animal should lose its sanctity, while according to Rava the second animal should not become holy.

This too suggests that Maimonides rules like Rava, since he writes that they “do not effect temurah,” meaning that the act did not work: the first animal remains holy, and the second does not.

In truth, this is what one would expect, since there is a general rule that in disputes between Abaye and Rava the halakha follows Rava except in six cases, remembered by the mnemonic YAL KGM (see Babylonian Talmud, Bava Metzia 22b and parallels).

Even so, as several commentators on Maimonides have already noted, elsewhere he seems to rule like Abaye.⁴ For example, in Laws of Robbery and Lost Property 1:9, Maimonides appears to hold that even one who violates the prohibition of coveting still effects a valid acquisition and has merely committed a transgression; see the Maggid Mishneh there, who explained even that in accordance with Rava, and also Sefer HaMafte’ach there. Therefore the interpreters of Maimonides are divided among themselves regarding how he rules in this dispute.⁵

We should note that there is also a third position regarding the practical ruling. Rabbi Akiva Eiger, in his Responsa, first edition, no. 129, argues that Maimonides’ view is that the practical halakha remains in doubt between Abaye and Rava—whether a prohibited act takes effect or not—and therefore one must rule stringently in each case according to the circumstances. See there for his proofs.

B. The Basis of the Dispute

Introduction

The dispute between Abaye and Rava touches several of the roots of halakha. One question is the relation between command and legal-halakhic reality: does the command itself determine reality, so that we simply cannot change it? Another question is the relation between command and our freedom to act. Yet another is what, exactly, punishment is given for in halakhic transgression: for the result, or for the action.⁶

Any of these questions may underlie the disagreement between Abaye and Rava. In this chapter we will try to understand the foundation of that dispute, and in doing so we will touch on several meta-halakhic principles.

Animal Tithe

Maimonides, in Laws of Firstborn Animals 6:5, records the law forbidding the sale of an unblemished animal tithe and writes:

It is forbidden to sell an animal tithe while it is unblemished, as it is said concerning it, “It shall not be redeemed.” By tradition they learned that this phrase also implies a prohibition of sale: it is neither redeemed nor sold at all. And it appears to me that one who sells the tithe has done nothing, and the buyer acquires nothing. Therefore he is not flogged, just like one who sells priestly dedications, whose buyer acquires nothing, and like one who sells a beautiful captive woman, as will be explained in its place.

In the second part of his words, Maimonides adds something of his own reasoning. He says that it appears to him that if one sells the tithe, the buyer acquires nothing—that is, the sale is ineffective. At first glance, he is ruling here like Rava, who holds that a prohibited act is ineffective. Yet he says this in the language of “it appears to me,” and does not present it as a straightforward result of the practical ruling in the dispute between Abaye and Rava. He then explains that precisely for this reason, because the sale does not take effect, the seller is not flogged for this prohibition. But Rava holds that one is flogged even if the sale does not take effect, because he transgressed the divine command. If so, this halakha seems at first glance to fit neither Rava nor Abaye.⁷

The Steipler, in his Birkat Peretz on the weekly portions, resolves this difficulty on the assumption that Maimonides rules like Rava. He explains that the dispute between Abaye and Rava turns on the question what the Torah’s warning is primarily directed against, at least for purposes of punishment. According to Abaye, the main warning is not to bring about the forbidden legal effect; if that did not occur, there is no reason to flog him. According to Rava, the main warning is not to perform an act that, under ordinary circumstances, brings about such a legal effect. Therefore, even though the legal effect does not take hold against the Torah’s will, he is nevertheless flogged.

According to this, the dispute concerns only prohibitions stated with respect to the person, that is, negative commandments that forbid the individual from performing some action. In such prohibitions, Rava can maintain that even if the legal effect does not take hold, the person has still transgressed, and he is flogged for that. But in prohibitions where the problem lies in the result itself, if the result was not achieved, even Rava would agree that there is nothing for which to flog him.

With temurah, the Torah commands us, “He shall not substitute,” which is a command directed to the person not to perform an act of substitution. That is why Abaye and Rava disagree there. With animal tithe, by contrast, the verse is formulated passively—“it shall not be sold”—which is language directed to the result, that the object not enter a state of sale. Here even Rava agrees that where the sale does not take effect, there is no reason to flog him.

Therefore Maimonides rules here that the sale does not take effect, and for that reason he also rules that one is not flogged for it. For the same reason he says this in the form “it appears to me,” since he himself derived it from the language of the verse, and it is not a simple result of deciding the dispute between Abaye and Rava.

Prohibitory Command and Transgression⁸

At first glance, the Steipler’s words are very persuasive, and they are well grounded in the wording of the Gemara’s formulation of the dispute. We saw from the Gemara’s language that Abaye and Rava disagree about whether the warning is aimed at the act or at the result. According to Rava, the warning is about the act, and therefore he is flogged even when the result is not achieved. Therefore, when the Torah warns about the result, there will be no dispute, and according to all opinions he is not flogged.

But we must now ask whether there is nevertheless still a prohibition here. We saw that the sale of an unblemished animal tithe does not take effect at all. We also saw that according to everyone, in such a case he is not flogged, since the warning is about the result and not about the action. But why should such an act count as a transgression at all? If indeed the Torah’s whole warning is about the result—that the animal tithe not be sold—and the sale did not take effect, then there is no prohibition here either. But if there really is no prohibition, then what is the Torah warning against? At first glance, the verse would be revealing a fact rather than issuing a command. It would inform us that a sale of an animal tithe is ineffective, but would not define any negative commandment. If so, of course there are no lashes.

But clearly that is not the case. Such a sale is a forbidden act according to both Abaye and Rava, and yet, despite the fact that he has transgressed the divine command, since the result was not achieved there is no liability to lashes even according to Rava.

This raises two difficulties:
1. If even in such a case he has transgressed the divine command, why is he not flogged? According to Rava, that is the basis for lashes throughout the Torah.
2. Are the parameters of the transgression not also defined by the prohibitory command? There is indeed sometimes a distinction between the transgression and the punishment, for a person who performs a prohibited act under certain conditions does not incur punishment—for example, where he acted unintentionally, in error, and the like. But here there is no change at all in the way the action was done. He commits the ordinary prohibition of selling animal tithe, and yet there is no punishment, because the Torah determined that the sale is ineffective. So why is there any prohibition here at all? And if there is a prohibition, why is there no liability to lashes?

We may restate the point as follows: with the sale of animal tithe, the Torah does not give us two separate verses, one for punishment and one for warning. If there were a verse for punishment, there would be no room to exempt him from lashes—and after all, in practice Maimonides does exempt him from lashes. If so, the verse that defines this act as a transgression is also the warning for lashes. And if that verse defines the prohibition as the result, then the fact that the sale does not take effect annuls not only the result but the prohibition itself. We have therefore returned to the conclusion that this verse is nothing more than a factual disclosure that a sale of animal tithe is ineffective, and not a negative commandment at all.⁹

What happens according to Abaye? Abaye reads the verse as a prohibition. It is indeed written in passive form, as a result-oriented prohibition that attaches to the object, and therefore it may be that even he would agree here that the sale does not take effect. As we saw in our analysis of Rava’s view, if this is how one interprets the verse, then that should apply both to the prohibition and to the punishment, since it is the very same verse.

We may now ask: according to Abaye, would the seller receive lashes? Presumably not, since the sale did not take effect. According to Abaye, one is not flogged merely for having transgressed the divine command. In other words, according to Abaye the prohibition is the act of sale, but the sale does not take effect, because the prohibition is written in passive form. If so, the seller did commit a prohibition, but the sale did not take effect, and therefore there are no lashes. According to Abaye, the fact that there are no lashes follows from the fact that the sale did not take effect—because in his view lashes are for the result—not, as the Kehillot Yaakov explained in Rava’s view, because there is no prohibition here at all. Therefore, in my opinion, this is precisely Maimonides’ position, and it is evidence that he rules like Abaye rather than Rava.¹⁰

When the Annulment Does Not Correct the Prohibition

Rabbi Akiva Eiger, in Responsa, first edition, no. 129, introduces a major novelty in the laws of a prohibited act being ineffective. He was preceded by Sha’ar HaMelekh on Laws of Divorce 3:19, by Maharit no. 69 and Maharitatz cited there, and by Responsa Panim Me’irot, part 1, no. 34, cited by Rabbi Akiva Eiger himself. From his wording it appears clearly that this novelty is based on pure reasoning and not on any textual source. On the contrary, the whole structure of the responsum there is that Rabbi Akiva Eiger first establishes this reasoning, then shows that one cannot say this according to Tosafot, and only afterward examines whether it can nevertheless be reconciled with other early sources. Such a structure indicates that a certain conceptual picture seemed to him self-evident in understanding the rule that a prohibited act is ineffective.

He writes:

There is still room to discuss our case, for one could say that the rule that a prohibited act is ineffective applies only where canceling the act will cancel the transgression, as in temurah. There we say that it is ineffective, because it is not fitting that his deed should benefit him by preserving the transgression. Even though, despite the fact that it is ineffective, he still transgressed the divine command by attempting temurah, nevertheless, since the root of the Torah’s objection is the matter of temurah itself, we say that it is ineffective and thereby the root of the matter is corrected; he is lashed only because he transgressed the divine command, and a verse, “Then both it and its substitute shall be holy,” is needed to teach that here the act does take effect. But in our case, even if you say that the giving is ineffective, he will still have committed the transgression and violated his oath, for he swore not to give, and yet he gave. In such a case we do not say that a prohibited act is ineffective. I believe Maharit already noted this reasoning in his responsa.

Rabbi Akiva Eiger holds that the Torah annuls the legal effect created through a prohibition only in situations where the annulment will produce a state in which no prohibition remains. He understands the rule that a prohibited act is ineffective as the claim that the Torah does not give a person the power to create prohibited states. But in situations where, even if the legal effect is annulled, the prohibition would still remain in force, there is no annulment.

The example he discusses is a case in which someone swore that he would not give something to his fellow, and then violated the oath and gave it anyway. In such a situation, even if we say that the transfer of ownership to the other person is annulled because it was done against Torah law—since he violated the prohibition of an oath—the prohibition he violated still remains. He swore not to give, and in fact he gave.¹¹ If so, in such a case we do not say that the act is ineffective, and therefore the giving is effective. There is no annulment here, because there is no reason for annulment.

The opposite example is a transgression like temurah. There, the rule that a prohibited act is ineffective should indeed apply, were it not for the Torah’s special innovation that temurah does take effect. There, if the Torah had not allowed the temurah to take effect, the act of substitution would not have created the prohibited state. The annulment would thus have prevented the prohibited state, and therefore that is exactly where the Torah must annul. True, even after the annulment he would still be flogged according to Rava, because he transgressed the divine command; but there would be no objective prohibited state of the relevant kind.

Rabbi Akiva Eiger takes it as self-evident that the purpose of annulment is to prevent the prohibited state from taking hold. Therefore, when annulment does not prevent that state—meaning that the prohibition will remain in force anyway—there is no annulment.

It should be emphasized that when Rabbi Akiva Eiger speaks of annulment in order to prevent a prohibition, he is not referring to the personal transgression itself, but to the aim of the prohibition—what he calls above “the root of the matter.” After all, according to Rava, even after the effect is annulled, the offender is flogged for having transgressed the divine command. In other words, there is still a transgression even when the legal effect, which is the result of the act, has been annulled. Thus the annulment does not prevent the prohibition as it applies to the person; it prevents the state that the prohibition was intended to block.

For example, according to Rava, in temurah the prohibition is the act of substitution itself, but the purpose of the prohibition is to prevent sanctity from taking effect on the substitute. If a person goes ahead and performs such a forbidden act, then in principle—were it not for the special verse concerning temurah—the Torah would annul its effect so that the problematic state does not come into existence. That does not mean that no transgression occurred, for the offender is flogged. The prohibition is the act itself, and that is what he is flogged for. The reason for the verse is the legal effect created by the transgressive act; compare our essays on Bereshit and Lech-Lecha, 5767.

According to this distinction, there is no room at all for the Kehillot Yaakov’s distinction. According to Rabbi Akiva Eiger, annulment occurs only where it thereby prevents the problematic state. The Kehillot Yaakov argued that in such situations Rava would agree that there are no lashes, because there is nothing for which to flog him. According to the Kehillot Yaakov, the rule that a prohibited act is ineffective applies only in cases where there is something for which to flog him, that is, in action-prohibitions and not in result-prohibitions. If so, Rabbi Akiva Eiger’s reasoning stands in direct conflict with the Kehillot Yaakov’s explanation, and it therefore appears that our inference from Maimonides—that he rules like Abaye—is indeed correct. According to Rava, he should have received lashes there, since he transgressed the divine command. And indeed, Rabbi Akiva Eiger explicitly writes in his responsum that this halakha proves Maimonides ruled like Abaye.

The Dispute Between Tosafot and the Rif

After Rabbi Akiva Eiger there proves from Tosafot that they do not agree with his reasoning, he then seeks support for his view from the Rif:

Although our masters, the authors of Tosafot, neither heard nor accepted this principle, in my humble opinion it should not be dismissed. It may perhaps be found in the intent of Rabbi Isaac Alfasi. For the Rif wrote, in the chapter Beitzah dealing with such matters, that if one violated the Sabbath and transferred ownership, the transfer is effective, and he brought proof from the Jerusalem Talmud that in all those cases what he did is done. Why did he not prove his law from the explicit Mishnah at the beginning of Tractate Hullin, that one who slaughters on the Sabbath, his slaughter is valid? Necessarily because it seemed to him that in slaughtering, the prohibition is taking life, and even if you say that the slaughter is ineffective and is treated merely as stabbing, he still committed the transgression, for he took the life. And it also corrected the matter so that it is no longer considered flesh from a living animal. You cannot say that this correction is ineffective and that it remains flesh from a living animal, for the animal is dead before you. Therefore the rule that a prohibited act is ineffective does not apply there.¹²

The Rif wishes to prove that one who violates Sabbath prohibitions nevertheless produces legally effective acts, and he proves this from the Jerusalem Talmud. Rabbi Akiva Eiger argues that there is even clearer proof from an explicit Mishnah: one who slaughters on the Sabbath performs a valid slaughter, and the animal may be eaten. Rabbi Akiva Eiger says that the Rif did not bring proof from there because in slaughtering the prohibition is taking life. Therefore, even if we were to invalidate the slaughter, the prohibition remains in force. In such a situation, according to all opinions, a prohibited act is effective, and therefore no proof can be brought from there.

By contrast, Tosafot on the words “Rava said,” in Temurah 4b, clearly do not accept Rabbi Akiva Eiger’s principle:¹³

If so, should not one who slaughters the Passover offering while leaven is in his possession render it invalid? One may answer that the Jerusalem Talmud requires a verse to validate it. Another difficulty: if one made a blemish in the ear of a firstborn animal, should that not render it prohibited? Yet it is obvious to us that it is prohibited only by way of penalty. One may answer that this is no worse than if a blemish had arisen on its own, in which case it would be permitted.

We will discuss the first difficulty below. In the second difficulty, Tosafot ask that according to Rava, one who makes a blemish in the ear of a firstborn animal should render it prohibited, since the act of inflicting the blemish should not take legal effect. True, the firstborn does become prohibited in such a case, but it is clear to Tosafot that this is only by way of penalty; see also Tosafot on “And do we impose a penalty,” in Bekhorot 34a-b. Rabbi Akiva Eiger proves from this that Tosafot disagree with his principle. For even if we were to annul the consequences of the blemishing, he still committed the transgression, since in fact the firstborn now bears the blemish. Nevertheless, Tosafot connect this to the discussion of a prohibited act being ineffective. It is thus clear that in their view, even if the annulment does not cancel the prohibition, the result itself—the permissive effect of the blemish on the firstborn—should still be annulled according to Rava.

Dependence on Time

A number of later authorities wrote that one must distinguish between prohibitions dependent on time and other prohibitions. When the prohibition being violated is time-dependent, as with Sabbath prohibitions, then the act is effective according to everyone. According to Rava, a prohibited act is ineffective only in matters that are prohibited in themselves, not in acts whose prohibition is due to time; see Sha’ar HaMelekh and Rabbi Akiva Eiger in the places mentioned above.

For example, the Mishnah we mentioned above in Hullin 14a states that one who slaughters on the Sabbath performs a valid slaughter. The commentators asked, see Shiltei Gibborim on Beitzah 20b in the Rif’s pagination, why an act done through a prohibition should be effective. According to Rava, we should apparently have invalidated the slaughter. The same question arises regarding a bill of divorce written on the Sabbath; see Maimonides, Laws of Divorce 3:19, where he invalidates it only rabbinically, or for side reasons such as the witnesses being disqualified as wicked because they wrote on the Sabbath.

Sha’ar HaMelekh writes, in order to resolve that difficulty and thereby reject the possibility that Maimonides rules like Abaye:

Therefore it seems to me that one must distinguish, in order to resolve all that we have asked… Rava says that an act is ineffective only where the act itself is the prohibition, such as the prohibition of robbery, from which the Gemara challenges Rava, or temurah, where the substitution itself is the prohibition. Not so here, where the act itself—writing a bill of divorce, slaughtering an animal, selling, and the like—is not in itself prohibited; rather, it is the day that causes the prohibition. In such cases everyone agrees that the act is effective.

At first glance, his intent is to distinguish between time-dependent prohibitions and fixed prohibitions. Why should that distinction matter here? Some have wished to explain that the distinction is based on seeing time-dependent prohibitions as person-centered prohibitions rather than object-centered prohibitions,¹³ and the annulment of result occurs only where the result inheres in the object itself. If the person violated a prohibition but the act itself is not prohibited, there is no annulment of the consequences of the act.

But the plain meaning of his words suggests that this is not exactly what he means. He distinguishes between something prohibited by its own nature and something whose prohibition is caused by the day, that is, by the time. For example, writing a bill of divorce is not, in itself, a problematic act, unlike temurah. The problem in writing the bill of divorce is not the legal effect that is created, but the fact that the writing was done on the Sabbath. In other words, creating a bill of divorce is not intrinsically problematic, and therefore there is no annulment. The same is true of slaughter on the Sabbath. Even if we were to classify time-dependent prohibitions as object-centered rather than person-centered, this distinction would still stand.

The Shakh, on Choshen Mishpat 208:2, where the Shulchan Arukh rules that a sale made through a transgression takes effect, also addresses the same question raised by Shiltei Gibborim and writes a similar distinction:¹⁵

The distinction is obvious in all these cases, since they can be done permissibly, unlike temurah or one acting under an oath, where they cannot be done except through transgression. This is against the author of Shiltei Gibborim in the chapter Beitzah, who left all this as a difficulty between Rava and the decisors.

The Shakh argues that acts which can be done permissibly are not subject to annulment. Rava’s principle—that a prohibited act is ineffective—was said only in circumstances where the only way to do the act is through a prohibition.

This distinction is very similar to what we explained above, since if an act can be done permissibly, that proves that it is not itself a forbidden act. Only an act for which there is no possible permissible form is an act forbidden by its very essence, and only such an act has its consequences annulled.

Three Directions in Understanding Annulment

It seems that the basis of the rule that a prohibited act is ineffective, according to these commentators, is very close to the basis we saw above in Rabbi Akiva Eiger. The point of the annulment is not to allow a person to perform a forbidden act. According to these commentators, the annulment applies only to an act that is intrinsically forbidden. An act that is permissible in itself, but which the person has now performed in a forbidden manner, is not an act that the Torah negates at its root, and therefore there is no annulment of its effects.

Even so, it seems that these two formulations differ from one another. Rabbi Akiva Eiger and those who follow him understood that the Torah did not give a person the power to create a prohibited state. It annuls the act so that the prohibition will not come into being. According to this formulation, it is reasonable that there would be annulment even in acts whose prohibited character is secondary. According to the formulation of the Shakh and those who follow him, however, the situation is the reverse: there is no annulment in order to prevent a prohibited state. Rather, the Torah simply did not give a person the power to perform an act that is intrinsically forbidden. There are acts that we simply do not have the power to perform, and these are acts whose very essence is an act of prohibition.

It should be noted that Rabbi Akiva Eiger’s principle can certainly also be accepted by the Shakh’s school. Since there are acts that the Torah did not empower us to perform, this will exist only where withholding that power prevents the prohibition. Even so, according to that school the point is not conceptually necessary. According to Rabbi Akiva Eiger, the whole purpose of the annulment is to prevent the creation of the prohibited state, and therefore the conclusion is natural. According to these commentators, there is no “annulment” with a purpose at all. There is instead a determination that limits our power to act, and it identifies the forbidden with the normatively impossible. When the Torah declares that a given act is prohibited, it is also saying that the act is not normatively possible. And all this applies only to acts whose prohibited character is essential, and not to acts prohibited for some incidental reason, such as time or other circumstances.

There is here an identification of the forbidden with the normatively impossible. When the Torah determines that a given act is prohibited, it is telling us that the act cannot be performed. If so, for what are lashes administered? What prohibition exists here at all? The lashes are for having transgressed the divine command. This brings us back close to the proposals of the author of Kehillot Yaakov, who identified the annulment of punishment with the annulment of the prohibition. What is forbidden is also impossible, and therefore it does not take legal effect. As we noted, lashes in such a situation seem almost groundless, since no actual prohibition in the full sense was even realized.

As noted, the Rif did not bring proof from the Mishnah in Hullin, and from this Rabbi Akiva Eiger inferred that he agrees with Rabbi Akiva Eiger’s own view. Of course, there is no obstacle to understanding the Rif in accordance with the Shakh as well, since according to him too the proof from Hullin is rejected. But in Tosafot on Temurah we saw that they do not accept Rabbi Akiva Eiger’s principle. Moreover, the author of Sha’ar HaMelekh brings proof that those Tosafot also do not accept the Shakh’s view, since in their first difficulty there they ask concerning slaughtering the Passover offering while leaven is in one’s possession, why the act is effective if it is performed through a prohibition. But in slaughtering the Passover offering there is no prohibition in the act itself; the prohibition arises only because it is done in the presence of leaven, that is, it depends on something else, just like time. Even so, Tosafot assume that this too belongs to the discussion of a prohibited act being ineffective.

It seems, therefore, that Tosafot disagree with the Rif in both of his possible formulations. They understand the annulment as a penalty for committing a prohibition. If a person commits a prohibition, the Torah will not allow him to benefit from the fruits of his act. Therefore this applies even where the annulment does not erase the prohibition, and even where the act is not intrinsically prohibited. It is enough that the person committed a prohibition in order for us to penalize him.¹⁴

We thus arrive at three approaches to understanding annulment. The first two are possible ways to understand the Rif; the third is the position of Tosafot:

1. Rabbi Akiva Eiger and those who follow him: the purpose of the annulment is to prevent the prohibited state from coming into being.
2. The Shakh and those who follow him, close to Kehillot Yaakov: this is not really annulment at all, but a lack of power to effect a prohibited act. When the Torah forbids a certain act, it tells us that the act is not normatively possible. We receive lashes because we transgressed the divine command.
3. Tosafot and those who follow them: the annulment is a penalty imposed by the Torah on the offender, and therefore it applies across the board whenever the person violates a prohibition. According to Tosafot, there is no room for distinctions between person-centered and object-centered prohibitions, between prohibitions dependent on an incidental condition such as time and those that are not, or between cases in which annulment erases the prohibition and cases in which it does not.

C. Relation to Other Rules: “Scripture Repeated It to Make It Indispensable” and “A Commandment That Comes Through a Transgression”

Introduction

In this chapter we will examine the relation between Rava’s rule—that a prohibited act is ineffective—and two other halakhic rules, which also deal with the performance of an act bound up with a transgression. At first glance, Rava’s rule would seem to mean that whenever a person performs a halakhic act that involves a prohibition, the results of the act are annulled. If so, that would seem to make redundant both the rule that Scripture must repeat a requirement in order to make it indispensable, and the rule of a commandment that comes through a transgression.

“Scripture Repeated It to Make It Indispensable”

In our essay on Parashat Vayikra, we discussed the well-known principle in sacrificial law that Scripture must repeat a requirement in order to make it indispensable. That is, in the realm of sacrifices, two verses are needed to teach that a given requirement is indispensable to the validity of the service. We explained there the logic behind this principle, and we will return to that explanation below.

Once we look at the rule that a prohibited act is ineffective, however, we discover a certain tension between it and the principle just mentioned. Let us examine this through an example. The Mishnah in Pesahim 63a states:

One who slaughters the Passover offering while leaven is in his possession transgresses a negative commandment.

Tosafot there, on the words “one who slaughters,” write:

The Riva says that the Passover offering is valid, because Scripture did not repeat the matter in order to make it indispensable. And in the Tosefta to our tractate, chapter 4, it is taught explicitly: one who slaughters the Passover offering over leaven on the fourteenth transgresses a negative commandment, but the Passover offering itself is valid, and one fulfills one’s obligation with it on Passover.

That is, he explains that the Passover offering slaughtered while leaven was present is valid even though the slaughterer violated a negative commandment. This is the law referred to above in connection with Tosafot on Temurah. The reason the Riva gives is that we do not find an additional verse making the slaughter indispensable; without such an additional verse, the defect is not invalidating.

The Pri Chadash, in his Mayim Chayyim, comments that from the Riva’s words it seems that no verse is needed in order to validate the Passover offering. He challenges this assumption from our principle: the slaughter was done through a prohibition, since it was performed while leaven was present, and therefore according to Rava we should apparently have invalidated the Passover offering by the rule that a prohibited act is ineffective.

Of course, one can broaden the question and ask about the principled relation between these two rules: why is an additional verse needed to make the matter indispensable? Once there is already a verse forbidding the slaughter of the Passover offering while leaven is present, the sacrificial service has become a service done through a transgression, and according to Rava it should not take effect.

Possible Ways to Relate the Issue to the Different Understandings of a Prohibited Act Being Ineffective

Sha’ar HaMelekh explains that this difficulty is not so strong, because it can be resolved in all the ways outlined above. The prohibition of slaughtering while leaven is present depends on something incidental, namely the leaven, and therefore according to the Shakh the rule that a prohibited act is ineffective is not relevant in such a case. According to this, the rule that Scripture must repeat the requirement in order to make it indispensable applies only where the rule of a prohibited act being ineffective does not apply, for one reason or another.

In a similar way, one can explain according to Rabbi Akiva Eiger that even if we were to annul the slaughter, the prohibition would still remain in force,¹⁵ and therefore there is no annulment of the commandment here either. Again, on this view, the rule that Scripture must repeat the requirement in order to make it indispensable applies only where our rule does not apply.

All this works only according to the various shades of the Rif’s approach. But according to Tosafot, who understand the annulment of a prohibited act as sweeping, because it is a penalty on the offender, none of these distinctions can be made. On that view, the difficulty concerning the relation to the rule that Scripture must repeat the requirement in order to make it indispensable remains fully in force.

We should add another important remark. This difficulty can also be resolved on the basis of the principle we saw in our essay on Parashat Vayikra, 5767, in the name of Ritva and others: in the case of a negative commandment, repetition is not needed in order for the defect to invalidate. Here the matter at hand is a negative commandment forbidding one to slaughter the Passover offering while leaven is present, and therefore it invalidates even if the verse is not repeated. If so, the rule that a prohibited act is ineffective can indeed annul the slaughter, but there is no need for that, since the slaughter is already invalid because the prohibition itself disqualifies it.

Perhaps this can be said in principle. But it is clear that the Riva himself disagrees with the principle laid down by Ritva, for he himself argues that an additional verse is still needed here to make the matter indispensable, even though this is a negative commandment. If so, according to his view it is not clear why an additional verse is really needed, if there is already annulment by force of the principle that a prohibited act is ineffective.

The Relation Between the Two Rules

We should preface the discussion by saying that, in light of the picture we drew in our essay on Parashat Vayikra, 5767, the sacrificial rule that Scripture must repeat the requirement in order to make it indispensable is based on the fact that divine service generally has significance even when it is not performed according to all the halakhic details. We noted there, however, that if the service was not performed according to the rules of halakha, then clearly something is lacking and the service is incomplete. Regarding prayer after its proper time, we saw that the worshiper receives reward for prayer, but not the reward for prayer in its proper time. One may formulate this as follows: the act has value within the framework of serving God, as it had even before the Torah was given at Sinai, but it is not a commandment in the full sense.

If so, perhaps one could take a similar path with respect to the principle that a prohibited act is ineffective. At first glance, when a person performs an act of service that involves a prohibition, the act still has value even if it is not a commandment in the full sense. In other words, in the sacrificial context the rule that a prohibited act is ineffective does not apply in its full force. Therefore, in slaughtering the Passover offering while leaven is present, without an additional verse the slaughter remains valid—both because there is no additional verse disqualifying it and because the rule that a prohibited act is ineffective is not activated.

But this solution is problematic. First, temurah—the very commandment in which the principle that a prohibited act is ineffective is discussed—also belongs to the realm of sacrifices. It is therefore clear that this rule is operative in sacrificial law as well.¹⁶ Moreover, if one were to understand the rule that Scripture must repeat the requirement in order to make it indispensable in this way, then it would not be relevant at all to negative commandments. But, as we saw above, the Riva certainly disagrees with that.

A Distinction Between Planes of Discussion

It seems that the explanation of the relation between the two rules lies in the plane of discussion. The rule that Scripture must repeat the requirement in order to make it indispensable deals with a situation in which the Torah commanded us to perform something in a certain way, and we did not do so. In such a case, there is no principled reason to annul the halakhic act because of the rule that a prohibited act is ineffective; the invalidation is more basic than that. Here, what we were commanded to do simply was not done. The great novelty is that if the Torah did not repeat the command once more, then in the sacrificial realm the service still has significance. But without that novelty, the invalidation would not stem from the rule that a prohibited act is ineffective; it would follow simply from the fact that the required procedure was not carried out lawfully.

By contrast, the rule that a prohibited act is ineffective speaks about situations in which the transgression does not contradict the essence of the basic command. Even if the transgression was committed, that does not mean that the halakhic act was not performed at all. For example, slaughtering the Passover offering while leaven is present is not valid Passover slaughter in the full sense, because halakha requires us to slaughter it without leaven. Here, were it not for the principle that Scripture must repeat the requirement in order to make it indispensable, we would invalidate the slaughter. But writing a bill of divorce on the Sabbath is an act that should have legal effect, because the Sabbath prohibition has nothing to do with whether this is a bill of divorce; it concerns only the fact that the bill happened to be written on the Sabbath. There, annulment can come only from the rule that a prohibited act is ineffective, at least according to Tosafot; according to the Shakh, not even there. This has no connection to the rule that Scripture must repeat the requirement in order to make it indispensable. Even if Scripture had repeated the prohibition twice, we still would not invalidate the writing of the bill of divorce, were it not for Rava. And indeed, Abaye does not invalidate it in such a case.

True, in the discussion in Temurah there are examples of invalidating a commandment because it was not performed properly, such as separating terumah from poor produce on behalf of good produce, and the question there is whether to annul it under the rule that a prohibited act is ineffective. It may be that, in the circumstances discussed there, the Gemara assumes that the commandment was in fact performed and the defect is only incidental. But it seems more plausible to explain that the discussion there does indeed concern annulment, yet its subject is not whether the person fulfilled a commandment, as in the case of slaughtering the Passover offering. Rather, it concerns whether the procedure actually succeeded—whether the legal effect took hold. The example there is the separation of terumah, and with terumah there are two separate questions: whether the person fulfilled a commandment, and whether the legal status of terumah actually took effect. Annulment of the legal effect belongs to the discussion of a prohibited act being ineffective, not to the discussion of Scripture repeating a requirement in order to make it indispensable.

In contrast to both of these, temurah presents a third situation. Here we are not dealing with fulfillment of a commandment, as in slaughtering the Passover offering, or even with a halakhic procedure, as in a bill of divorce, but simply with a forbidden act. The question under discussion is whether this act can nevertheless take legal effect even though it is prohibited. There is no question here of whether the Torah invalidates the fulfillment of some commandment because of a prohibition.

Therefore, in slaughtering the Passover offering while leaven is present, there is no possibility of saying that the slaughter is annulled because of the rule that a prohibited act is ineffective. Rava does not annul the fulfillment of commandments; he annuls only those acts whose success the person seeks. This is especially true according to Tosafot—recall that the main difficulty arose specifically according to their view—because they understand Rava’s rule as a penalty on the person. The penalty is that his aim will not be realized, not that the commandments he performed will be canceled.

A Commandment That Comes Through a Transgression

A similar problem arises with respect to the rule of a commandment that comes through a transgression. There too we are dealing with the annulment of a commandment when it is performed by means of a prohibition. There too one could ask why this rule is needed at all, since Rava’s principle that a prohibited act is ineffective already exists.¹⁷

The answer here is very similar to the one we proposed above concerning the rule that Scripture must repeat the requirement in order to make it indispensable. True, here too we are dealing with the annulment of a commandment not because it was not performed according to its own rules, but for a side reason. In that sense, the case resembles those in which we apply the rule that a prohibited act is ineffective. But here too what is at issue is the annulment of a commandment, which is not accepted favorably because it was bound up with a transgression. In that sense, this case differs from the situations in which we apply the rule that a prohibited act is ineffective, exactly as in the previous subsection.

In light of our remark about terumah in the previous paragraph, we should say that the discussion here concerns the person’s fulfillment of the commandment, not the annulment of some legal effect. A commandment that comes through a transgression does not annul legal statuses; it annuls only the person’s fulfillment of the commandment. Therefore it does not belong to the discussion of a prohibited act being ineffective. An extreme example of this is the comment of the author of Minchat Chinukh on commandment 325. He addresses Tosafot’s question in Sukkah: why is a verse needed to invalidate a stolen sukkah, if dwelling in it is in any case a commandment that comes through a transgression? Minchat Chinukh explains that without the verse, the person who sat in a stolen sukkah would indeed not have fulfilled a commandment, but he also would not have been sitting outside a sukkah. A commandment that comes through a transgression does not disqualify objects of commandment; it only annuls the fulfillment of commandments. This is exactly our point.

This distinction returns us to the discussion of the Kehillot Yaakov. We saw there that he placed the emphasis on the plane of punishment, whereas we can now understand why such an approach is problematic. The rule that a prohibited act is ineffective concerns legal effect, that is, the normative result, and not the person-centered planes of transgression and punishment.

Three Planes of Discussion in Commandments and Transgressions

In the first chapter we distinguished between two different planes of discussion: transgression and punishment, that is, culpability; compare also our essay on Parashat Emor, 5767. Here we add, at least with respect to certain commandments, the distinction between legal effect and those two planes. In commandments such as terumah there are three planes of discussion: legal effect, fulfillment of the commandment, and reward. In transgressions such as temurah there are also three planes: legal effect, the transgression itself, and punishment.

We have seen that the rule that a prohibited act is ineffective, like the rule that Scripture must repeat a requirement in order to make it indispensable, deals with the first plane. The rule that disqualifies a commandment that comes through a transgression deals with the second and third. We also saw that the author of Kehillot Yaakov assigns Rava’s principle to the second and third planes, but his words are difficult.

Conclusions

1. Abaye and Rava disagree about whether a prohibited act takes legal effect or not; that is, whether one can create legal effect against the Torah’s will.
2. As a consequence, they also disagree about what lashes are administered for: the transgressive action or the resulting legal effect.
3. The clearest example of a transgression regarding which Abaye and Rava disagree is temurah from a consecrated animal to another animal. There, the Torah innovated that the temurah is effective: according to Abaye, the novelty is that the sanctity does not leave the first animal; according to Rava, the novelty is that it takes effect on the second.
4. We presented three understandings of annulment: preventing the prohibited state, penalty upon the offender, and lack of power to act against the Torah.
5. We saw practical differences between these conceptions: in cases where annulment does not prevent the prohibition, in relation to other rules of annulment, and more.
6. We examined the relation between this rule and the sacrificial principle that Scripture must repeat a requirement in order to make it indispensable. The main distinction is that the rule of a prohibited act being ineffective concerns the legal result of the act, whereas the repetition rule concerns the validity of the prescribed procedure itself.
7. The rule of a commandment that comes through a transgression concerns the annulment of the commandment. It does not relate to legal effects, but to the religious fulfillment of the act.
8. Along the way we touched on several meta-halakhic issues that underlie the whole discussion: the relation between prohibitory command, transgression, and punishment, and between action and result.
9. We also briefly discussed the meaning of time-dependent prohibitions: are they object-centered prohibitions or person-centered prohibitions?
10. We saw an interesting methodological phenomenon in Rabbi Akiva Eiger’s reasoning: a decisor may determine the halakha on the basis of conceptual reasoning, and even if he finds early authorities who explicitly reject that reasoning, with no others explicitly disagreeing with them, he continues to assume it until he is necessarily forced to abandon it. Put differently: he does not require clear proof in order to maintain that reasoning, but specifically in order to relinquish it.

Footnotes