We have seen that the Gemara has been discussing at some length the classic rule of aseh dokheh lo ta’aseh – that performance of a positive commandment can push aside a negative commandment – of which the mitzva of yibum is an example. One of the issues that comes under investigation is whether we treat all prohibitions as being the same, or, perhaps, we differentiate between ordinary prohibitions (those whose punishment is malkot – 39 lashes) and those whose punishment is more severe (i.e. death penalties like karet or mitat beit din). The Gemara concludes that the rule of aseh dokheh lo ta’aseh applies only to ordinary prohibitions and not to more severe prohibitions.
In the course of the discussion it becomes clear that the Gemara perceives the rule of aseh dokheh lo ta’aseh as being a hidush – a new or unexpected idea – since transgressing negative commandments is seen as being more severe than transgressing positive commandments. Rashi explains this assumption by pointing to the punishments meted out for each transgression. Whereas a person who performs a forbidden act will receive punishment (most often, malkot), someone who misses out on the opportunity to perform a positive commandment is not punished at all. A question raised in response to this argument is that we find, on occasion, forbidden acts that are so severe that the transgressor does not receive malkot because it is not enough of a punishment to offer atonement for such an act. Some point to the levels of atonement (hilukei kaparah) that are needed for different types of transgressions as the source for this idea. The Rambam (see Hilkhot Teshuva 1:4 ) teaches that someone who transgressed a positive commandment and repents is forgiven immediately, whereas transgressing a negative commandment demands not only repentance but also the power of Yom Kippur for atonement. The Arukh LaNer suggests that we distinguish between positive and negative commandments not because of the punishment, but rather as a result of the severity of the action. Someone who misses fulfilling a positive commandment has not actually performed a negative act, while someone who has transgressed a negative commandment has done something significant.