When discussing an animal that has been sanctified as a korban the Torah teaches (Vayikra 27:10):
He shall not exchange it nor substitute it, whether good for bad or bad for good; but if he does substitute one animal for another animal, then it and its substitute shall be holy.
We learn a number of things from this pasuk. Firstly, there is a prohibition against trying to exchange one animal with another that is to be used as a korban. Furthermore, if one does so, then both animals will be sanctified.
The Mishnah (1:1) teaches that if one does violate the prohibition then it is punishable with lashes. Since the default punishment for violating a negative commandment is lashes, the Mishnah’s ruling is expected. Yet the Bartenura addresses a number of issues with this ruling. Firstly, there is a principle that any prohibition that does not involve an action (lav shein bo maaseh) is not punishable with lashes. Yet this prohibition, along with the prohibition of swearing falsely and cursing another using Hashem’s name, are exceptions to the rule. Why it is an exception requires further explanation. Secondly, any negative prohibition that is followed with a positive commandment to remedy the situation is also not punishable with lashes. Temura appears to qualify for this exemption. Yet the Bartenura explains that there are cases where the prohibition is violated, yet the animal offered as a substitute is not sanctified. One example is if partners shared in the korban. Since the scope of the prohibition is broader than the partnering positive commandment, Temura does not qualify for this exemption.
Returning to the question of lav shein bo maaseh, the Gemara (3a) lists the three prohibitions above as exceptions and precedes to explain the reason and textual basis for each of them. However once it reaches Temura (3b), R’ Yochanan explains that it should be removed from the list, since “with his speech it affects an action”. Rashi explains that through his speech he caused the regular animal to become sanctified. In other words, the prohibition of Temurah is not a lav shein bo maaseh. The Tosfot Yom Tov therefore asks why the Bartunera raised the question of lav shein bo ma’aseh and listed it as an exception, disregarding to the Gemara’s conclusion.
The Kesef Mishnah raises the same question on the Rambam (Temura 1:1) and directs us to the Magid Mishnah in Hilchot Schirut(13:1). The Rambam there address the prohibition of muzzling an animal, preventing it from eating while it works. The Rambam rules that even if one prevents the animal by using his voice, he would still be punishable with lashes. This ruling reflects the opinion of R’ Yochanan who rules that moving ones lips is considered an action. The mefarshim raise our Gemara as a difficulty since it considers the three exception above, each of which involving speech, as prohibitions that are a lav shein bo maaseh.
The Magid Mishnah explains that the movement of lips is only considered an action if its effect is concrete. In the above case, the animal is effectively muzzled as a result of the owner’s voice. We have applied a similar logic to Temurah above in the name of Rashi. Yet, noting the Rambam’s inclusion of Temura as a lav shein bo maaseh, the Maggid Mishnah refines his explanation. The Rambam must understand that for a prohibition involving speech to be considered an action it must also be possible for it to be violated with an action alone. For Temura however, since it can only be violated with speech it is considered a lav shein bo maaseh. The Rambam would therefore not be ruling like the R’ Yochanan in our Gemara.1
The Lechem Mishnah (Sanhedrin 28:1) raises a number of difficulties on the Magid Mishnah and provides a different explanation. Muzzling and bearing false witness are not a lav shein bo maaseh because of the concrete outcome of the verbal action. More than that, the Lechem Mishnah explains that the prohibition is attached to that outcome, e.g. the animal being muzzled. For Temura however, even though it affects a change (the temura animal becoming sanctified) the prohibition is not in creating a sanctified temura. The prohibition is in the forbidden declaration regarding the korban itself, intended on exchanging it. That itself has not direct effect and is therefore a lav shein bo maaseh.
1 The Achronim deal with the question of why, how and if the Rambam argues with R’ Yochanan, yet we have already run out of space in this article.
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