Commentary for Makkot 3:4
הַנּוֹטֵל אֵם עַל הַבָּנִים, רַבִּי יְהוּדָה אוֹמֵר, לוֹקֶה וְאֵינוֹ מְשַׁלֵּחַ. וַחֲכָמִים אוֹמְרִים, מְשַׁלֵּחַ וְאֵינוֹ לוֹקֶה. זֶה הַכְּלָל, כָּל מִצְוַת לֹא תַעֲשֶׂה שֶׁיֶּשׁ בָּהּ קוּם עֲשֵׂה, אֵין חַיָּבִין עָלֶיהָ:
If one takes the mother bird together with the fledglings — R. Yehudah says: He receives stripes and does not send (the mother) away. [R. Yehudah holds that (Deuteronomy 22:7): "Send shall you send" connotes ab initio (i.e., if you have not taken it). And even though "Send shall you send" is written after (Ibid. 6): "You shall not take," the connotation is not: If you have taken it, send it away, but: Do not take it; rather, send it away. So that this is not a negative commandment linked to a positive one (for which there is no stripes liability)]. And the sages say: He sends it away and does not receive stripes. [They hold that "Send it away after you have taken it" is connoted, so that it is a negative commandment linked to a positive one. The halachah is in accordance with the rabbis.] This is the rule: There is no stripes liability for any negative commandment accompanied by a positive one, [where the Torah states, as it were: If you have transgressed the negative commandment, fulfill the positive one, e.g.: "You shall not take the mother bird together with the fledglings" — and if you did, "Send shall you send, etc."; (Deuteronomy 24:10): "Do not enter his house to claim his pledge" — and if you did, (Ibid. 13): "Return shall you return to him the pledge." In all such instances, if he fulfills the positive commandment, he does not receive stripes. But if he does not fulfill the positive commandment, as when he takes the mother together with the fledglings, and he slaughters it or it dies; or if he takes the pledge from his house and it is burned, in which case he cannot fulfill the positive commandment, he receives stripes.]
Bartenura on Mishnah Makkot
English Explanation of Mishnah Makkot
This is the general principle; any negative commandment which involves a positive deed, one is not liable (for transgressing over.
Mishnah four discusses the prohibition of taking a mother bird with her young.
The last section of the mishnah states the principle that will explain the Sages’ position in the previous section as well as the last section of the previous mishnah. According to the mishnah any negative commandment which can be immediately remedied by a positive deed is not punishable by lashing. Our two mishnayoth illustrate commandments of this nature. Deuteronomy 22:6-7 states: “Do not take the mother (bird) with the young, Let the mother go”. The Sages understand the first half of this statement to be a negative commandment and the second half a positive deed which would remedy the violation of the negative commandment. In other words one who violates the negative commandment by taking the mother and the young can remedy it by doing a positive deed, namely by releasing the mother. Therefore, the Sages say that since he released the mother, he is not liable to be flogged.
Rabbi Judah reads the verse differently. He understands the second half to mean “Let the mother go” before you take her and the young. Once the person has taken the mother bird while the young are together with her in the nest he is immediately punishable by flogging, since he cannot remedy the situation. Since the commandment has already been violated and cannot be remedied, he is not obligated to release the mother bird.
This same general rule is also applicable with regards to the end of the previous mishnah which discussed leaving the Passover offering until morning. Exodus 12:10 states: “You shall not leave any of it until morning; if any of it is left until morning you shall burn it.” Again the first half of the verse is a negative commandment and the second half contains a remedy to the violation of that commandment. Therefore one who violates the prohibition of leaving the sacrifice until morning is not flogged.