Today’s daf continues a (very long!) stretch of discussions about the various laws pertaining to the sacrifice of the Passover offering. The second mishnah on the page informs us of the punishment for breaking some of those rules.
One who breaks the bones of a paschal lamb that is pure receives forty lashes. But one who leaves over part of a ritually pure paschal offering and one who breaks the bones of a ritually impure paschal offering do not receive lashes.
The first part of this mishnah is very standard — so much so that the Gemara has no comment. The Torah (Exodus 12:46) is quite explicit that one should not break the bones of the paschal offering. There is a general rabbinic rule that violating a negative commandment that lacks an explicitly prescribed punishment in the Torah incurs 40 lashes. (Reduced to 39 by the rabbis.) Since the Torah gives no specific punishment for breaking the bones of a paschal offering, 40 lashes is the rabbinic answer.
The Gemara is more interested in the second part of the mishnah because it appears unexpectedly lenient: no flogging for one who breaks the bones of an impure offering, and no flogging for one who leaves any portion of the offering over to the next day (see Exodus 12:10 which prohibits leftovers). The ensuing rabbinic discussion makes clear that in the case of the broken-boned impure paschal offering no prohibition has, in fact, been violated. The rabbis understand the Torah’s specificity in the prohibition “you shall not break a bone in it” (Exodus 12:46) to exclude any disqualified paschal offering.
The case of the left-over offering is different however. (Recall: the Torah says no leftovers are allowed.) In this case, one clearly has violated a biblical prohibition. Why then should one not receive lashes? It turns out there are two possible reasons.
Rabbi Yehudah argues that while the Torah clearly prohibits paschal leftovers (eat up, everyone!), the Torah also offers this solution: …any of it that was left until morning you shall burn in. (Exodus 12:10) Some talmudic rabbis hold that when the Torah offers a positive commandment like this one (burn the leftovers) that resolves a transgression (having leftovers), there is no flogging for the violation.
That is, one who leaves the paschal offering overnight and into the morning does violate a negative commandment, but because there is a way to undo the damage (burn the leftovers) there is no flogging.
Rabbi Ya’akov disagrees with the reasoning. (Although not stated explicitly here, this seems to imply that Rabbi Ya’akov does not hold with this principle that prohibitions resolvable by positive commandments are not subject to flogging.) Instead, he argues that because the transgression itself does not involve an action it cannot be punished by flogging. What has the person done, after all? He or she has simply not eaten (or burned) the entire offering. For Rabbi Ya’akov, one is not flogged for doing something, not for not doing something.
Although we (thankfully) no longer use lashes as a punishment, the theoretical underpinnings of this debate between Rabbis Yehudah and Ya’akov are consequential. How do we think about what it means to violate a prohibition of the Torah? If there are violations that we can “clean up” with subsequent actions are those somehow less important transgressions? Or, if the lapse we commit contains no action — maybe simply a thought or an omission — should we consider such failings less weighty? The Talmud does not decide on our daf today, but the lenient ruling of the mishnah in the case of the left-over paschal offering suggests that, at least for some prohibitions, not all sins are created equal.