Latest update: March 13th, 2015
The act of temurah, consecrating another animal in place of an already consecrated animal, incurs the punishment of malkot, lashes. This is somewhat surprising. There is a halachic rule that a prohibition that does not involve an overt act does not incur the punishment of malkot – “lav she’einbBo ma’aseh, ein lokin alav.”
Thus, even though the Torah prohibits one from hating another person in one’s heart, no malkot are administered for doing so because no act is involved. But neither does temurah involve an act. It merely involves the articulation of the words “zu temurat zu,” “this animal is a substitute for that hekdesh animal.” Why then does a person incur malkot?
The answer is that the rule lav she’ein bo ma’aseh, ein lokin ala does not apply to a situation in which the lo ta’aseh, the prohibited act, violates not just one injunction of the Torah but two. In the case of temurah, there are two injunctions involved. The first is expressed by the words of the Torah “lo yachlifenu” – “he should not exchange it,” and the second is expressed by the words “lo yamir” – “he shall not substitute it.”
This also explains why another exculpatory rule that would ordinarily absolve a violator from the punishment of malkot does not apply in the case of temurah. This exculpatory rule is known as “lav hanitak le’aseh.” It provides that a person does not incur lashes for violating a commandment if the Torah prescribes a cure for such violation.
For example, the Torah commands us not to steal. But the Torah also provides a cure for theft. It requires the thief to return the stolen article. Similarly, the Torah commands us not to take the eggs from under the nesting mother. But the Torah also provides a cure by instructing one to send the bird away if one does so. Accordingly, neither the act of theft nor the act of taking the eggs from under the nesting bird incurs the punishment of malkot.
Temurah, it would seem, should be no different. True, the Torah proscribes the violation of temurah. But it also gives the cure, namely that both the substituted animal and the original hekdesh animal remain hekdesh. Why then does the rule of lav hanitak le’aseh not absolve the person who violated the laws of temurah from receiving the punishment of lashes?
The answer is as before – that this exculpatory rule does not apply in a situation in which one prohibited act violates two negative commandments.
Since temurah is a way – albeit a prohibited way – of making an animal hekdesh, it follows that, as is the case with hekdesh, a person can only effect temurah with an animal that belongs to him but not with an animal that belongs to someone else. Accordingly, a kohen cannot effect temurah with an animal of a non-kohen that is offered up on the altar as a chattat, a sin offering, or an asham, a guilt offering.
Even though the kohen has ownership rights in certain parts of the chattat and asham animal that are not burned on the altar, these rights are only triggered once the animal is slaughtered and its blood is sprinkled on the altar. Before that occurs, no part of the chattat and asham offering belong to the kohen and he therefore has no power to effect temurah with respect to them.
Similarly, a kohen cannot effect temurah with a firstborn – bechor – animal that an Israelite dedicates to the him because at the time of dedication, the bechor animal still belongs to the Israelite. A kohen could, of course, effect temurah in a bechor that was born to his own flock.
It is only the person who receives atonement from the sacrifice of the animal that has the power to effect temurah but not someone who donates the animal for the atonement of someone else.
An animal owned by more than one person cannot be rendered hekdesh through temurah because, in describing temurah, the Torah uses the singular form, thereby excluding a jointly owned animal. Similarly, an animal brought for communal atonement rather than individual atonement is not subject to the laws of temurah.
Temurah can only be effected with respect to animals that are intended for the altar but not with respect to animals that are given to the Temple for sale for their proceeds to be used for bedek habayit, the upkeep of the Temple. Neither can temurah be effected with bird offerings or with menachot, meal offerings.
In the absence of the Temple, the laws of temurah might seem a little detached from our lives. But they send an important message. Just as we cannot take our property with us after our lifetime, we cannot claw back property that we have given during our lifetime.Raphael Grunfeld
About the Author: Raphael Grunfeld’s book, “Ner Eyal on Seder Moed” (distributed by Mesorah) is available at OU.org and your local Jewish bookstore. His new book, “Ner Eyal on Seder Nashim & Nezikin,” will be available shortly.
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