HASRA'AS SAFEK AND LAV SHE'EIN BO MA'ASEH
Each of them teaches like he taught elsewhere.
(R. Yochanan and Reish Lakish): If Reuven swore 'I will eat this loaf today' and he did not eat it, he is not lashed;
(R. Yochanan): He is not lashed because this Lav does not come through an action;
(Reish Lakish): He is not lashed because he cannot receive definite warning (perhaps he will eat the loaf later), and Safek warning is invalid.
They both explain R. Yehudah.
(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 verse gives an Aseh to fix the Lav, therefore one is not lashed for it.
R. Yochanan infers, had the Torah not given an Aseh, one would be lashed for it, even though the warning is doubtful (perhaps he will finish eating before morning)!
Reish Lakish infers, had the Torah not given an Aseh, one would be lashed for it, even though Ein Bo Ma'aseh.
Question: Why doesn't Reish Lakish also learn like R. Yochanan, that doubtful warning is (proper) warning?
Answer: He holds like a different Tana according to R. Yehudah;
(Beraisa): If we are unsure if Reuven is the son of David or Moshe, and Reuven strikes or curses David and Moshe, one after the other or at the same time, he is liable (even though the warning is doubtful);
R. Yehudah says, he is liable only if he struck or cursed both at the same time.
Question: Why doesn't R. Yochanan also learn like Reish Lakish, that one is lashed for a Lav she'Ein Bo Ma'aseh?
Answer: He holds like the following teaching;
(R. Yochanan citing R. Yehudah citing R. Yosi ha'Galili): One is lashed for a Lav that is done through an action;
The only Lavim without an action for which one is lashed are swearing (falsely), Temurah and cursing a person with Hash-m's name.
Question: According to both R. Yochanan and Reish Lakish, R. Yehudah contradicts himself!
Answer - part 1 (for Reish Lakish): Tana'im argue about the opinion of R. Yehudah.
Answer - part 2 (for R. Yochanan): R. Yehudah himself holds that one is lashed for Lav she'Ein Bo Ma'aseh. He said in the name of R. Yosi ha'Galili that one is not lashed.
LASHES FOR NOT FULFILLING THE ASEH
(Mishnah - R. Yehudah): If one takes a mother bird sitting on her chicks or eggs, he is lashed, and he has no Mitzvah to send it away;
Chachamim say, he sends it away, and he is not lashed;
The general rule is, one is not lashed for a Lav which has an Aseh.
(R. Yochanan): There is only one other such Mitzvah (in which lashes depend on failure to fulfill the Aseh).
Question (R. Elazar): Which is the other Mitzvah?
R. Yochanan: Go investigate!
Answer #1 (R. Elazar - Beraisa): If a Yisrael raped a woman and divorced her, he remarries her, and he is not lashed;
If a Kohen (who may not marry a divorcee) did so, he is lashed, and he does not remarry her.
A Yisrael is not lashed, even though the Aseh precedes the Lav!
Question: We understand according to the opinion Kiymo v'Lo Kiymo. He is lashed if he does not remarry her.
According to the opinion Bitlo v'Lo Bitlo, we understand how he can (permanently) Mevatel the Mitzvah to send the mother bird (he can kill it), but how can a rapist be Mevatel the Mitzvah to remarry her?
If he kills her, he is not lashed, for he is Chayav Misah!
Answer #1 (R. Simi of Chuzna'ah): He accepted Kidushin for her from another man.
Objection (Rav): If she made him her Shali'ach, she was Mevatel the Mitzvah. If she did not, he cannot accept Kidushin for her!
Answer #2 (R. Simi of Chuzna'ah): He vowed in public not to remarry her.
Question: This is like the opinion that a vow taken in public can never be permitted;
However, according to the opinion that it can be permitted, how can we answer?
Answer: He vowed Al Da'as Rabim (according to the will of many people).
(Ameimar): The Halachah is, a vow taken in public can be permitted, but a vow Al Da'as Rabim cannot be permitted.
Question: There are more (Mitzvos in which lashes depend on failure to fulfill the Aseh)!
Question #1: It says "v'Lo Sigzol", and "v'Heshiv Es ha'Gezelah" (a Mitzvah to return the theft)!
Question #2: "Lo Savo El Beiso La'avot Avoto" (do not enter the borrower's house to take a security. If you did, return it -) "Hashev Tashiv Lo Es ha'Avot"!
One can be lashed for these, whether one holds Kiymo v'Lo Kiymo (he does not return it) or Bitlo v'Lo Bitlo (he destroys it)!
Answer (to both qestions): Since he must pay for it, he is not lashed in addition to this.
Question (R. Zeira): If someone took a convert's security and the convert died (without heirs), there is no one to pay! (He should be lashed!)
Answer: When he destroyed the security, he became liable to pay (and not be lashed). When the convert died, his obligation to pay went away.
Question #3: "Lo Sechaleh Pe'as... (do not harvest your entire field. Rather, leave a corner for the poor. If you did not, give the poor from what you harvested -) "le'Ani vela'Ger Ta'azov Osam"!
One can be lashed for this, whether one holds Kiymo v'Lo Kiymo or Bitlo v'Lo Bitlo!
(Beraisa): Pe'ah should be designated and left attached (the poor take it themselves). If the owner harvested his entire field, he separates (the amount which should have been left) from the sheaves (and gives it to the poor); if this was not done, he separates from the stack before Miru'ach (final processing);
If Miru'ach was already done, he separates the proper amount, takes Ma'aseros on it, and gives it to the poor.
(However, if he ground the grain, he acquires it like a thief, and he can no longer fulfill the Mitzvah!)
Answer #1: He holds like R. Yishmael, who says that, even if he made a dough, he separates from the dough and gives to the poor. (He still did not acquire it.)
Objection: Even according to R. Yishmael, if he ate the dough, he can no longer fulfill the Mitzvah!
Answer #2 (to questions (b) and (n)): Rather, the other Mitzvah (in which lashes depend on failure to fulfill the Aseh) is Pe'ah. A rapist is never lashed;
Even if he vowed not to remarry her, it can be permitted;
A vow Al Da'as Rabim cannot be permitted for Reshus, but it can be permitted for the sake of a Mitzvah.
There was a teacher of children who used to hit them too much. Rav Acha made him vow (Al Da'as Rabim) that he would not teach children anymore;
Ravina (permitted the vow and) reinstated him, because they could not find someone else who teaches so well.
MULTIPLE LASHES FOR EATING INSECTS
(Mishnah): One who eats Neveilos, Treifos, Shekatzim u'Rmasim.
(Rav Yehudah): If one ate a worm found in cabbage, he is lashed for "ha'Sheretz ha'Shoretz Al ha'Aretz (may not be eaten)."
Rav Yehudah lashed a man who ate such a worm.
(Abaye): If one ate Potisa (a bug found in water), he is lashed four times (there are two Lavim for water Sheratzim, and two Lavim for all kinds of Sheratzim);
If one ate an ant, he is lashed five times (there are two Lavim for all Sheratzim, and three Lavim for land Sheratzim);
If he ate a wasp, he is lashed six times (for the above five and for "Sheretz ha'Of").
(Rav Achai): If one urgently needs to excrete and holds it in, he transgresses "v'Lo Seshaktzu (do not make yourselves detestable)";
(Rav Bivi bar Abaye): If one drinks from a bloodletter's vessel (which is disgusting), he transgresses "v'Lo Seshaktzu."
(Rabah bar Rav Huna): If one ground up nine ants and completed the quantity of a k'Zayis with a live (Rashi; Tosfos - intact) ant, he is lashed five times for eating a full creation (an ant, like Abaye taught) and once for eating a k'Zayis of Neveilah.
(Rava): The same applies if he ground up two ants and a full ant completed a k'Zayis.
(Rav Yosef): The same applies if one minced ant and a full ant comprised a k'Zayis.
They do not argue. Rabah discusses small ants, Rava discusses bigger ants, and Rav Yosef discusses very big ants.
LASHES FOR EATING TEVEL
(Mishnah): One who eats Tevel or Ma'aser Rishon...
(Rav): If one ate Tevel to Ma'aser Oni (Peros from which Ma'aser Oni was not taken), he is lashed.
This is like the following Tana.
(Beraisa - R. Yosi) Question: Perhaps one is liable only for Tevel from which no Terumah or Ma'aser was taken. What is the source to obligate for Tevel from which Terumah was taken, but not Ma'aser Rishon, or (also Ma'aser Rishon was taken but not) Ma'aser Sheni or even Ma'aser Oni?
Answer: It says "Lo Suchal Le'echol bi'Sh'arecha", and "v'Ochlu vi'Sh'arecha v'Sove'u";
The latter refers to Ma'aser Oni. Likewise, the former forbids Peros that still 'contain' (i.e. are Tevel to) Ma'aser Oni.