Temura 3: How Does Temura Fit with Other Laws re:Punishment for Transgressions?

Massechet Makkot taught us that punishments were only given out when perpetrators performed acts forbidden by the Torah.  People were not punished if they did not perform positive commandments.  The Sages did create punishments to 'encourage' people to perform positive mitzvot.  Lav sh'ein bo ma'aseh, negative commandments that do not involve forbidden actions, were never punished.

The law of temura falls into the category of lav sh'ein bo ma'aseh because it appears to involve speech but no actions.  The rabbis ask whether or not speech is considered significant.   Rabbi Yochanan quotes Rabbi Yosei HaGelili when he teaches that there are three exceptions to this rule of no punishment for negative commandments that do not involve forbidden actions:

• nishba, taking a false oath
• meimar, announcing the intent to switch one consecrated animal for another (who will affect substitution)
• u'makalel et chaveiro ba'shem, using the name of G-d to curse one's fellow

The Gemara concludes that temura is not included on this list.  Rabbi Yochanan says that speech is truly an action in this case, for it changes the status of the second animal.  Tosafot note that other examples of speech that end in punishment exist.  These include:

• eidim zomemin, witnesses that are found to be testifying falsely since they were not at the scene that they describe
• motes shem ra, someone who falsely accuses his wife of premarital infidelity

Tosafot explain that in these the Torah clearly states the punishments that are associated with those statements, and thus they are not applicable in this case.