The Nature of the Guilt Offering

Majal – 5767

Introduction

The guilt offerings are divided into two main categories: guilt offerings for sin and guilt offerings for purification (a similar phenomenon can be seen with sin offerings as well, though that is beyond our present scope). Each of these two categories is itself divided into several types of offerings. In this article we will try to identify the common element shared by the various sin-related guilt offerings, explain on that basis some of the laws that apply to them (not the laws of offering them, but the laws governing the obligation to bring them), and finally suggest a possible connection between the two general categories of guilt offering.

A. Guilt offerings: a general survey

There are six guilt offerings in Jewish law, and they divide into three principal groups:

1. Three guilt offerings that come for sin: the guilt offering for me’ilah (misuse of consecrated property), the guilt offering for misappropriation (for a false oath concerning a deposit—denial under oath of money that is not his but is claimed from him, such as a laborer’s wages, a lost item, stolen property, and the like), and the guilt offering for intercourse with a designated maidservant.

2. Two guilt offerings for purification (the Nazirite and the person afflicted with tsara’at). These apparently are not offerings brought for sin, but offerings brought for purification (see the passage in Shevuot 22a, where it is explained that a Nazirite does not bring an offering for sin).

3. The provisional guilt offering, brought for an inadvertent act involving a doubtful prohibition. This too is, in essence, a guilt offering brought for sin, but its character differs from the guilt offerings listed in section 1.

Nachmanides, in his commentary on the Torah (Leviticus 5:15), discusses the meaning of the name ‘asham’ and contrasts it with ‘chatat’. This is his wording there:

And he shall bring his guilt offering to the Lord—this sacrifice is called an ‘asham,’ as it says, ‘according to the sanctuary shekel for a guilt offering’… But it has not been clarified why one offering is called a sin offering and another a guilt offering, when all of them come for sin… Nor can one say that it is because of the greater severity of the sin, for the person afflicted with tsara’at brings two offerings, one called a sin offering and the other a guilt offering:

What appears correct to me is that the term ‘asham’ denotes a grave matter for which the doer deserves to become desolate and lost because of it, as in ‘Hold them guilty, O God’ (Psalms 5:11), and ‘the pastures of the wilderness are laid waste,’ and likewise ‘Samaria shall bear her guilt, for she has rebelled against her God’ (Hosea 14:1), and ‘Indeed we are guilty’ (Genesis 42:21)—that is, punished. By contrast, chatat denotes something in which one has deviated from the path, as in ‘and not miss’ (Judges 20:16):

Thus the guilt offering for misappropriation and the guilt offering for a designated maidservant, because they come even for deliberate sin, their sacrifice is called an asham, and likewise the Nazirite’s guilt offering. But the guilt offering for me’ilah, although it is for inadvertence, is called an asham because it concerns the sacred property of the Lord; the sin is grave, and one deserves to bear guilt for it, just as it is called me’ilah:

And in the case of the person afflicted with tsara’at, because the afflicted person is considered like the dead, and he is already desolate and lost, his first offering is called an asham, to protect him from the guilt by which he has been laid waste; the second is a sin offering, which atones for his inadvertent sins:

And the reason for the provisional guilt offering is that its owner assumes there is no punishment upon him, since it is not known that he sinned. Therefore Scripture was more stringent with him in his doubt than in his certainty, and required him to bring a ram worth two shekels, whereas had his sin been known he would have brought a sin offering worth only a small coin. It is called an asham to say that it is worth two sela’im like the more serious guilt offerings, hinting to him that if the matter seems trivial in his eyes and he does not bring his atonement, he will become desolate because of his sin. This is the meaning of ‘It is a guilt offering; he is certainly guilty before the Lord’ (verse 19). That is: this offering, although it comes for doubt, is indeed a guilt offering, for he is guilty before the Lord who knows all hidden things, and if perhaps he sinned against Him, He will punish him…

At the beginning of his remarks, Nachmanides rejects the possibility that the guilt offering is brought for a more severe sin, since a person afflicted with tsara’at brings both a guilt offering and a sin offering together.[1] In the end, Nachmanides explains that a guilt offering is an offering brought because of a grave sin, one for which a person deserves to become desolate and lost from the world. Sometimes the culpability is due to willfulness, and sometimes because of other factors. According to Nachmanides’ conclusion, the term ‘asham’ derives from the language of ‘desolation’ and not from the language of ‘guilt’.

It is difficult to regard this explanation as sufficient, for several reasons. First, as will be clarified below, in a number of places we find that willfulness is an essential criterion of the guilt offering, despite the exceptional cases. Beyond that, as Nachmanides himself notes, there are cases in which a guilt offering and a sin offering are brought together, as with the person afflicted with tsara’at. His wording does not suggest that he retracts his initial claim that the obligation of the guilt offering does not stem from the greater severity of the sins. Yet, prima facie, the obligation to become desolate and be destroyed follows precisely from the fact that the sin is more severe (the ‘desolation’ depends on the ‘guilt’). His explanation also seems insufficient with regard to the provisional guilt offering, since it is hard to understand why an inadvertent sin committed under doubt should be considered specifically a more severe sin.[2]

We will therefore try to propose here a different direction for understanding the guilt offering—one that specifically relies on the connection between ‘asham’ and ‘guilt,’ but not necessarily in the sense of severity, rather in another sense that will be defined below.

We begin with the wording of the Mishnah in Keritot 9a, which lists four offerings that are brought for deliberate sin just as for inadvertent sin. It reads:

And these are those who bring offerings for deliberate sin as for inadvertent sin: one who has intercourse with a designated maidservant, a Nazirite who became impure, an oath of testimony, and an oath concerning a deposit.

Three of the four on this list are guilt offerings: the guilt offering for a designated maidservant, the guilt offering for misappropriation, and the Nazirite’s guilt offering. The exception is the offering for an oath of testimony, which is a sliding-scale offering, but it too is called ‘asham’ in the Torah because it applies even to deliberate sin. It therefore appears from here that the defining characteristic of guilt offerings is that they apply to deliberate sin just as to inadvertence (the Talmud there explains that the Nazirite’s guilt offering is brought even in cases beyond one’s control).

This also emerges from Rashi’s comment on the Mishnah in Horayot 8a, where he writes:

Furthermore, guilt offerings do not have the law of a communal error in a matter, for one is liable to a definite guilt offering for deliberate sin just as for inadvertence.

Now the guilt offering for me’ilah is exceptional in this respect, since it is brought only for inadvertence (indeed, me’ilah as such is defined only in a case of inadvertence). The provisional guilt offering too, which is brought for inadvertent doubtful violations, is a guilt offering brought only for an inadvertent act. The question therefore arises: if liability for deliberate and inadvertent sin alike is indeed an essential feature of guilt offerings, then why do the guilt offering for me’ilah and the provisional guilt offering—which apply only to inadvertence—also belong to the family of guilt offerings?

An obvious solution to this difficulty is that there is a more fundamental characteristic of guilt offerings, not necessarily the fact that they apply even to deliberate sin. The characterization found in the Mishnah and in Rashi above—that a guilt offering generally comes for deliberate and inadvertent sin alike—must be only a derivative of the more basic and general characteristic we are looking for. That foundational characteristic must account for all guilt offerings, including those brought only for inadvertence. In the next chapter we will try to identify this basic feature.

B. The essential characteristic shared by all guilt offerings

To examine what is common to all guilt offerings, we will now go through them one by one and see what distinguishes the acts for which a guilt offering is brought from all other acts.

1. The guilt offering for a designated maidservant. We begin specifically with this case, because it is the clearest example for our purposes. This offering is brought by one who has intercourse with a designated maidservant. According to the Talmud’s conclusion and the accepted law, a designated maidservant is half-slave and half-free, betrothed to a Hebrew slave, and perhaps also to an ordinary Jew. Since she has an aspect of slavery, ordinary marriage does not apply to her, and therefore from a legal standpoint she is not considered a forbidden sexual relation. In practice the maidservant receives lashes, but according to most views there is no negative prohibition at all on the man who has intercourse with her. Yet even though he violates no prohibition, he is liable to bring a guilt offering for this act. This fact is highly puzzling: how can one bring a guilt offering for an act that Jewish law does not even define as an offense?

To clarify this, let us first cite the words of the Penei Yehoshua in the passage in Gittin 43b:

There Rav Hisda said: A woman who is half-slave and half-free, who was betrothed to Reuven and then emancipated… and I do not apply to her the rule of ‘the wife of two dead men’… This is difficult for me, for one can still find ‘the wife of two dead men’ where she was not emancipated and then was betrothed again to Shimon. For although Reuven’s betrothal takes effect with respect to her, nevertheless, since for those betrothals one incurs only a guilt offering, as appears from Rashi’s explanation and as the Rosh wrote [sec. 37], it seems that Shimon’s betrothal should also take effect, for we hold that betrothal takes effect in cases liable only to ordinary negative commandments, and here there is not even a negative commandment, only a mere guilt offering. (Second edition from the author, may his soul rest in Eden. All this belongs with Tosafot, s.v. ‘and I do not apply,’ for they seem to understand that we do not find at all a bond to two levirs by Torah law, and therefore had to explain that we find it elsewhere. On this I raised the above difficulty, for one could find it in precisely the sort of case discussed here, where she was not emancipated. See Tosafot there below, and examine carefully.)

The Penei Yehoshua asks there why betrothal to a designated maidservant should not take effect, since no forbidden relation applies to her. In his own formulation, the question is this: in a case where someone marries a designated maidservant, the betrothal should apparently take effect, since there is no prohibition of forbidden relations with respect to her. And if betrothal does take effect, according to the law, with women prohibited only by ordinary negative commandments, then all the more so where there is no prohibition at all on the intercourse itself, but only sacrificial liability, betrothal ought to take effect. But if so, the Talmudic assertion that ‘we do not find a wife of two men’—that is, a case in which one woman is married to two husbands—would be difficult. Prima facie, if someone betroths a designated maidservant, the betrothal appears to take effect, and that maidservant would then have two husbands.

The Penei Yehoshua resolves the difficulty as follows:

And it appears to me to resolve this as follows: what we hold elsewhere—that betrothal takes effect in cases liable only to ordinary negative commandments—refers to ordinary negative commandments, but not where the prohibition is created by the betrothal itself. And aside from that, one does not find one betrothal taking effect after another, for once Reuven’s betrothal has taken effect, she is in his domain and has no hand to accept betrothal from another. So it seems to me.

The Penei Yehoshua’s claim is not entirely clear. It seems that his intention is that the non-effectiveness of betrothal with another man’s wife is not like the parallel rule in other forbidden relations. As is well known, in the realm of forbidden relations—unlike cases prohibited only by an ordinary negative commandment—betrothal does not take effect. A man cannot betroth his sister. These forbidden relations are of two kinds: kinship prohibitions and the prohibition of another man’s wife. In the case of an ordinary forbidden relation, such as one’s sister, betrothal does not take effect because of the severe prohibition involved in intercourse with her—namely karet, which is more severe than an ordinary negative prohibition. But the fact that betrothal does not take effect with another man’s wife stems from the fact that she is already someone else’s wife. The problem at the root of betrothal to a married woman is not the severity of the offense involved in intercourse with another man’s wife, but that she is already seized and belongs to someone else.[3] It follows that in the case of a designated maidservant, although there is no formal legal prohibition against having intercourse with her, betrothal still cannot take effect, because in the end she is someone else’s wife. In other words, there is here something like taking a woman away from someone else, almost a kind of robbery.[4] The core of the Penei Yehoshua’s innovation is that even if a designated maidservant is another man’s wife, and intercourse with her does not constitute a grave prohibition (indeed, not a prohibition at all), betrothal nonetheless does not take effect in her.

Something of this foundation in the Penei Yehoshua is already implicit in Maimonides’ Laws of Kings 9:14, where he writes:

And how are they commanded concerning the laws? They must appoint judges and magistrates in every district to judge regarding these six commandments and to warn the people. A Noahide who transgresses one of these seven commandments is executed by the sword. For this reason all the people of Shechem became liable to death: Shechem had robbed, and they saw and knew and did not judge him. A Noahide is executed on the testimony of one witness and by one judge, without prior warning, and even on the basis of relatives—but not on a woman’s testimony, and a woman may not judge them.

From Maimonides’ words it emerges that a Noahide who takes another man’s wife violates the prohibition of robbery. This is how Maimonides explains the sin of the people of Shechem, who failed to judge Shechem for ‘robbing’ Jacob’s daughter.[5]

The Minchat Chinukh, commandment 35, infers from here that if a Noahide has intercourse with another man’s wife in an atypical manner—so that he does not violate the prohibition of another man’s wife (see Maimonides there 9:7)—he nevertheless violates the prohibition of robbery. In other words, every marital bond includes a dimension of robbery as well.

Similarly, in Sho’el U-Meishiv, first edition, part I, at the end of sec. 128, the author asks on the basis of these words of Maimonides why the Talmud in Sanhedrin 58a cites the verse about cleaving to one’s own wife and not to another man’s wife. Prima facie, it could have learned this from the prohibition of robbery. Presumably such a dimension exists in the case of a married Jewish woman as well, beyond the sexual prohibition itself.

One could have said that the Penei Yehoshua is innovating that the very definition of the prohibition of another man’s wife is itself a kind of robbery. But it seems more likely that his intention is only with respect to the non-effectiveness of betrothal, and that there are two laws in the prohibition of another man’s wife: forbidden relation and robbery. Each of these provides an independent reason why betrothal should not take effect. By contrast, in the case of a designated maidservant only one of them exists—robbery, but not forbidden relation.[6]

Let us now return to the discussion of the guilt offering for a designated maidservant. We saw above that the guilt offering for intercourse with a designated maidservant comes without there being any prohibition. Yet it is nevertheless clear that if an offering is brought for this act, there is something defective about it. But what can be defective in an act that is not defined at all as an offense? It seems that the defect lies in the very fact that a person has invaded a domain not his own and taken something that ‘belongs’ to someone else. The problem here is not the legal prohibition involved in the act, but the very fact that it disrupts the personal and social order. Below we will see the same problem in the case of robbery.

In another formulation: a guilt offering is brought for an act that is not necessarily an offense, yet contains an intrinsic blemish. There may be no command concerning it, but it is nonetheless clear that the act is improper. Acts that are improper in themselves, even without a command, are generally acts of taking or using something that lies outside a person’s legitimate domain. The basis of the liability lies in the factual reality that the thing taken is found outside the taker’s sphere, even if there is no formal legal prohibition involved.[7] Below we will see further examples of this.

A similar idea can be seen with respect to an ordinary married woman as well, and not only with a designated maidservant. According to Jewish law, a married woman who commits adultery deliberately betrays her husband and thereby becomes forbidden to him. If she committed adultery inadvertently or under coercion, she remains permitted to him (unless he is a priest). Already from this we can see that the Torah’s language of me’ilah does not belong specifically to inadvertence. On the contrary, it appears from here that me’ilah specifically denotes deliberate action. In inadvertence or coercion there is no me’ilah, and therefore the woman does not become forbidden to her husband.

The Mishnah at the beginning of the chapter Kelal Gadol in tractate Shabbat distinguishes between two kinds of inadvertence: inadvertence about the labor itself (when a person does not know that his act constitutes Sabbath desecration) and inadvertence about the Sabbath itself (when a person does not know that today is the Sabbath). In law there is no difference at all between these two forms of inadvertence, and both have the status of inadvertence not only in the laws of the Sabbath but throughout the Torah. Yet the Maharik, in a responsum, rules that with respect to the prohibition of a woman who committed adultery becoming forbidden to her husband, there is a difference between these two forms of inadvertence. In his responsa (root 167, s.v. ‘Ve’al’; also cited by the Rema, Even HaEzer 178:3), he writes:

As to what our teacher Maharil asked regarding a woman who willingly committed adultery under her husband, but did not know whether there is a prohibition in the matter—whether she should be considered inadvertent—in my humble opinion it seems that she does not have the law of an inadvertent sinner so as to be permitted to her husband, since she intended to betray her husband and commit adultery under him. For Scripture does not say, ‘If a man’s wife goes astray and commits betrayal against the Lord,’ which would imply specifically intending the prohibition; rather it says, ‘and commits betrayal against him.’

According to the Maharik, if that married woman did not know that the act was forbidden, then although this is indeed an inadvertent transgression and she is not punished for it, she nevertheless becomes forbidden to her husband as a woman who committed adultery deliberately. Only if the woman acted out of a mistake in the act itself—meaning she did not realize that what she was now doing was an act of adultery—does she not become forbidden to him. What is the difference between these two forms of inadvertence? As we noted, in the laws of the Sabbath we do not distinguish between inadvertence about the Sabbath and inadvertence about the labors. If so, why is such a distinction made in the matter of betrayal of the marital bond?

The Maharik’s explanation is that the woman’s prohibition to her husband following adultery does not stem from the offense in the act. It stems from the fact that the act damages the bond between husband and wife. If she deliberately damages such a bond, even if she does not know that there is a prohibition involved, she has betrayed her husband, and therefore she becomes forbidden to him.

From the standpoint of the offense involved, it is clear that such an act counts as inadvertent. But the damage—the me’ilah—to the marital bond is not connected specifically to offense, but to the blurring of the real boundaries of marriage. Here too, that woman and her sexual partner invaded a domain that was not theirs, and by doing so they violated the social-marital order. Such an invasion is called me’ilah.

From here we learn two things relevant to our subject: 1. The marital bond between husband and wife is not merely a formal legal bond. It is some sort of real state of affairs, and damaging it is not merely a bare offense but an injury to a certain reality. From here arises the possibility suggested by the Penei Yehoshua, that if one attempts to betroth another man’s wife, the betrothal does not fail only because of the offense involved, but also because she is already bound and situated within someone else’s domain. 2. A second thing we learn from the Maharik is that the Torah’s language of me’ilah refers to a factual injury and not necessarily to an offense. This conclusion joins what we have said thus far.

In the next subsection we will see that from such a conception there also follows the obligation of the guilt offering for ordinary me’ilah in consecrated property. The guilt offering for a designated maidservant, like me’ilah in ordinary marital relations, and like the guilt offering for misuse of consecrated property, all come for invasion of a domain that is not ours, and not because of violation of a formal legal prohibition.

2. The guilt offering for me’ilah. As noted, one of the sin-related guilt offerings is the guilt offering for me’ilah, and it is specifically brought only for inadvertence. As we recalled, this case posed a difficulty for our claim that willfulness is an essential component of the guilt offering’s defining characteristics. We can now propose a solution to this problem.

From the Maharik’s principle it clearly follows that the act of that woman is called me’ilah not because it was done inadvertently, but despite the fact that it was inadvertent. Inadvertence is not the essential characteristic of me’ilah. On the contrary, it appears that deliberate injury is what is called me’ilah (which is why a woman becomes forbidden to her husband only when she acted deliberately, or in a kind of inadvertence that was deliberate with respect to the injury to the marital bond). If so, what defines an act as me’ilah? From what we have said here, it appears that an act is called me’ilah because it damages the reality of the marital bond between husband and wife, even if there is no formal offense here. The essential feature is the very fact that such a thing occurred—that is, the blurring of the boundary between the family unit and what lies outside it. That woman and her partner laid hands on something outside their domain, thereby destroying a boundary and demarcation that ought to exist. The inadvertence here does not create the me’ilah; rather, it is an aspect that can exempt—provided there truly was no inner betrayal of her husband at all.

If so, it is entirely possible that in the prohibition of me’ilah in consecrated property the situation is similar. There too the act of me’ilah is not defined by being an act done inadvertently, but by the damage done to the boundary between the domain of sacred property and the ordinary domain of the trespasser. The trespasser invaded a sphere that was not his—exactly like the husband’s wife in the Maharik’s case.

We can now understand why the guilt offering for me’ilah in consecrated property exists only in cases of inadvertence. This is a consequence of the laws of me’ilah itself, not of the nature of guilt-offering liability. As is well known, only when a person commits me’ilah inadvertently does the object leave the sacred domain and pass into ordinary use, whereas when the me’ilah occurs deliberately there is no transfer into ordinary status. Since the guilt offering for me’ilah is brought for the injury to the sacred domain (just as every guilt offering is brought for injury to and invasion of another domain), and such injury occurs only in inadvertence, it is clear that liability to the guilt offering too applies only in inadvertence. Thus the guilt offering for me’ilah actually constitutes evidence for our argument. After all, the offense exists in deliberate action as well, and nevertheless no guilt offering is brought for it. The reason is that the guilt offering is not for the offense, but for the object’s exit into ordinary status—and that exists only in inadvertence. This proves that the guilt offering for me’ilah too is not brought for an offense, but for invasion of another domain.

We arrive at the conclusion that guilt offerings in general, and the guilt offering for me’ilah in particular, are brought for a defective state of affairs—or for invasion of a sphere not ours—and not necessarily for an offense in the legal sense. When a person performs an act that injures some real-juridical boundary, he must bring a guilt offering. This obligation exists even if the act involves no formal legal offense, and there is no formal source prohibiting it. Before we move on to examine the other guilt offerings, we will now discuss two puzzling examples of the guilt offering for me’ilah, and explain them in light of this principle.

I Blessings over enjoyment

In the Babylonian Talmud, Berakhot 35a, the discussion concerns the source of the obligation to recite blessings before deriving enjoyment. The Talmud says there:

From where are these words? For the rabbis taught: ‘Holy praises to the Lord’—this teaches that they require a blessing before them and after them. From here Rabbi Akiva said: It is forbidden for a person to taste anything before he recites a blessing… Rather, it is a matter of reason: it is forbidden for a person to derive benefit from this world without a blessing. The rabbis taught: It is forbidden for a person to derive benefit from this world without a blessing, and whoever derives benefit from this world without a blessing commits me’ilah. What is his remedy? He should go to a sage. — He should go to a sage? What can the sage do for him? He has already committed the prohibition! — Rather, Rava said: He should go to a sage from the outset and learn the blessings, so that he should not come to me’ilah.

The Talmud seeks a source for the obligation of blessings before enjoyment, and in the end it finds it in reason: it is forbidden to derive enjoyment from this world without a blessing, and anyone who does so commits me’ilah. On its face, it is clear that this does not mean legal me’ilah in the full sense of the term, but an aggadic expression saying that one who benefits without a blessing is as if he committed me’ilah.

And indeed, the students of Rabbenu Yonah write there as follows:

‘Holy praises to the Lord’—this teaches that it requires a blessing before it and after it… But this is only an asmakhta, for certainly by Torah law even the seven species, which require a blessing afterward by Torah law as it says, ‘and you shall eat and be satisfied and bless,’ do not require a blessing before them by Torah law, only rabbinically…

That is, it is clear to them that even at the stage when the Talmud derived the obligation from a verse, this is only an asmakhta, and the obligation is rabbinic. And according to the Talmud’s conclusion, the obligation rests on reason, so it is certainly rabbinic. However, later in their discussion there we find a surprising formulation:

That is, one who does not know the blessings—how can he eat at all? For if he eats, he will be liable for a guilt offering for me’ilah each and every time. And we answer: let him go to an expert and learn the blessings for each and every thing. And the same applies: even if he knows only the blessing ‘by whose word all things came to be,’ he is thereby exempt from me’ilah. For we learned (Berakhot 40a): ‘For all of them, if he said “by whose word all things came to be,” he has fulfilled his obligation,’ although he still needs to learn so that he may recite the appropriate blessing for each and every thing.

That is, despite the fact that the obligation to recite a blessing before food is only rabbinic, Rabbenu Yonah’s students rule that one who derives enjoyment without a first blessing commits actual me’ilah—not merely ‘as if’ he committed me’ilah, which is also the plain sense of the Talmud and Rif there. They conclude that he is obligated to bring a guilt offering for me’ilah. Prima facie this is astonishing: the prohibition against eating without a prior blessing is only rabbinic, so how can someone who eats without a blessing be obligated to bring the guilt offering for me’ilah? Such an offering would apparently be an unconsecrated animal brought into the Temple courtyard.

The explanation of this likely lies in the well-known words of the Penei Yehoshua there:

In the Talmud: ‘Rather, it is a matter of reason; it is forbidden for a person…’ From the language of all the decisors it appears that according to this conclusion here, all blessings over enjoyment are rabbinic except grace after meals alone… In my humble opinion this seems astonishing, for throughout the Talmud it appears that anything derived from reason is Torah law; indeed the Talmud often asks, ‘Why do I need a verse? It is a matter of reason.’ Moreover, regarding food one blesses afterward, so he is not deriving benefit from this world without a blessing. So it seems to me, though the matter still requires further study; see my later note.

The Penei Yehoshua explains that anything learned from reason has the status of Torah law, and therefore he is puzzled by the accepted ruling that the obligation to bless before food is only rabbinic. We should note that the Tzelach there disagrees with him and holds that reason indeed generates only a rabbinic obligation.[8] Prima facie there is a practical ramification here regarding doubtful blessings—should we be stringent or lenient? But in practice it seems clear that with doubtful blessings we rule leniently, and therefore the Penei Yehoshua remains with an unresolved difficulty.

It seems that according to the Penei Yehoshua, who holds that reason is Torah-level, we must conclude that the obligation to bless before food is indeed Torah-level, except that the specific formula instituted by the Sages is rabbinic. According to this, in a case of doubt whether one recited a blessing over the food, he should be stringent and bless and thank the Holy One in his own words—not in the formal liturgical formula, and without the Divine Name. Only with respect to the precise formula of the blessing, which is a rabbinic enactment, if there is doubt whether he used the correct wording, one should be lenient.

It seems that this is the source of Rabbenu Yonah’s students’ ruling cited above. What is the law for someone who ate with no blessing at all—in any form, even in his own words? They write that he is liable for a guilt offering, and this liability rests on reason, which is quasi–Torah-level. True, this obligation is based on reason and not on a formal norm with an explicit source, but this is not an unconsecrated offering in the Temple courtyard. That person committed me’ilah, since he took something that was not in his domain without obtaining permission, and that is like me’ilah. The real boundary has been crossed, and even if there is no formal Torah rule prohibiting this, he is liable to bring a guilt offering.

For this reason Rabbenu Yonah’s students rule that if he recites the generic blessing ‘by whose word all things came to be,’ he is exempt from liability for the guilt offering of me’ilah, since in the end he has fulfilled the Torah-level obligation. He thanked the Holy One for the food, even if he did not do so in the precise formula required by the Sages. This is exactly in line with our resolution of the Penei Yehoshua’s difficulty.

Here again we see that because the issue is taking something outside my domain without permission, we can generate the guilt offering on the basis of reason, even without a formal source for prohibition. Exactly as we saw with the designated maidservant. Once again, then, we find that the guilt offering for me’ilah is brought for invasion of a domain not one’s own, even where there is no explicit command and no formal transgression involved.

II Me’ilah in konamot

In several places the Talmud assumes that one who derives benefit from something he has forbidden to himself by a konam commits me’ilah; in its language, ‘there is me’ilah in konamot.’ Maimonides also rules this as law, and says:

There is me’ilah in vows. How so? If one says, ‘This loaf is for me like a sacrifice’ or ‘like consecrated property,’ and then eats it, he has committed me’ilah, even though it is permitted to others. Therefore it cannot be redeemed, for it is not holy except for this person alone. If he said, ‘This loaf is holy’ or ‘a sacrifice,’ and then he or someone else ate it, he has committed me’ilah; therefore it can be redeemed.

This law is puzzling, because a konam is an ordinary vow, and it has no connection to sanctity or consecrated property. The prohibition is the ordinary prohibition of violating a vow, not a prohibition of me’ilah. What sharpens the difficulty is that the Talmud gives no source for the law of me’ilah in konamot, and it appears to be learned from reason. How can one innovate sacrificial liability with no source at all? Is there not a problem here of bringing unconsecrated animals into the Temple courtyard? Quite a number of the later authorities were deeply perplexed by this.

Well known is the inquiry of the Mishneh LaMelekh (Laws of Me’ilah 4:9) and of other later authorities: does me’ilah in konamot also involve an actual negative prohibition of me’ilah, or is the innovation only with respect to sacrificial liability (for this is explicit in the Talmud—that according to the view that there is me’ilah in konamot, one incurs a guilt offering), while there is no prohibition of me’ilah at all here? The Mishneh LaMelekh notes with surprise that Maimonides did not spell this out, and it somewhat appears that one violates not me’ilah, but only the ordinary prohibition of violating the vow.

If so, according to Maimonides it is unclear how there can be liability to a guilt offering for me’ilah without any corresponding prohibition (beyond the prohibition of violating a vow, which is the ordinary law of vows and oaths, not a prohibition connected to consecrated property). Once again we see that the guilt offering for me’ilah is brought for the very act of penetrating another domain, and there need not be any legal prohibition tied to it.

We should note that according to our approach, this is apparently true of the ordinary guilt offering for me’ilah as well—the one brought for misuse of consecrated property. Its meaning is likewise a sacrifice for penetrating another domain, and it need not depend on a negative prohibition, just as we suggested on the basis of the Maharik. True, in me’ilah involving consecrated property there is an actual prohibition and not only sacrificial liability, unlike the case of the designated maidservant. But the guilt-offering liability is apparently only for the invasion of the divine domain, not for the prohibition involved. Thus we saw in the two examples we brought that there can be liability for a guilt offering for me’ilah even without any prohibition at all.

3. The guilt offering for misappropriation. There is the well-known question of Rabbi Yosef of Aisen: why are we not stringent because of the negative prohibition against robbery, and how can we rule leniently in monetary doubt in favor of the defendant? Equally well known are Rabbi Shimon Shkop’s remarks in Sha’arei Yosher, Gate 5, that in the laws of robbery this prohibitory obligation is founded on a meta-halakhic legal situation.[9] If so, the fact that money not mine is in my possession is not grounded in the prohibition of robbery itself, but in a value-laden juridical reality. The prohibition against robbery is built on top of that. The natural conclusion is that the guilt offering for misappropriation, which comes for holding money unlawfully and denying it under oath, is likewise a sacrifice for a state of affairs and not necessarily for the legal prohibition itself, like all the guilt offerings we have seen so far.

One should note, however, that the guilt offering here does not apply to every act of robbery, but only where there is denial under oath of money that is not his (an oath regarding a deposit). Moreover, some commentators explained that this guilt offering is brought for the oath and not for the robbery. If so, prima facie the liability to the guilt offering here does not stem from invasion of another domain, but from the prohibition itself, and perhaps from the oath. That does not fit well with our proposal thus far.

Perhaps the explanation is that specifically in these cases, one has money that is not his in his possession, but it did not come into his hands specifically by way of an act of robbery proper (as in withholding a laborer’s wages, or denying possession of a lost object, and the like). In other words, here the issue is not the offense in the act of robbery itself, but the presence of someone else’s money in my possession (and the ‘robbery’ is effected here through the denial and oath concerning that money). By contrast, in ordinary robbery there is also an offense in the act itself, and not merely in the state of having money that is not mine in my possession, and that is dealt with by other means—similar to what we saw above in the case of an ordinary married woman, who is not liable to the guilt offering for the designated maidservant, even though there too there is an element of robbery and injury to marriage. If so, the limitation that one brings a guilt offering only for a false oath denying money, and not for ordinary robbery, precisely points in the same direction as our proposal: the guilt offering does not come for sin, but for a state in which lines and boundaries were crossed, by a person who invaded a domain that was not his.

The provisional guilt offering will be discussed below, immediately after the interim summary.

C. Summary and connection to the purification guilt offerings

We have seen that the guilt offering is brought for a defective state of affairs and not for a legal offense. Even where there is a legal offense, the guilt offering comes because of the dimension of factual defect. A state of factual defect without a formal legal rule prohibiting the act is generally a case in which there exists a meta-halakhic boundary—something like Rabbi Shimon Shkop’s theory of the juridical order—and some person crosses it without permission. Such an act is problematic by virtue of what it is, and no command is needed to establish that. Generally speaking, acts whose prohibition is meta-halakhic tend to have the character of invasion and taking something from a domain that is not mine (the definition of that ‘domain’ is itself meta-halakhic; sometimes Jewish law anchors it in a prohibition, such as the prohibition of robbery, and sometimes not). Even where there is a legal prohibition on such an ‘invasion,’ that prohibition itself is derived from the reality (just as the guilt offering is brought for the defect in reality), rather than the reality being derived from the prohibition. For example, according to Rabbi Shimon Shkop, ownership is not derived from the prohibition of robbery; on the contrary, the prohibition is derived from concepts of ownership that precede it. By contrast, the sin offering comes for the sin or transgression involved in the act, and not necessarily for the factual defect. It serves as atonement for the transgressive act of the person and not for the objective defect in the state of affairs created by it.

One implication of this difference is that with the sin offering there is a distinction between inadvertent and deliberate sin. With respect to offenses rooted in the person’s transgression, the distinction between inadvertent and deliberate has clear meaning. Deliberate sin is too grave, and therefore it is not atoned for by sacrifice. By contrast, in the guilt offering we saw that the sacrifice comes for the very reality of having something not mine in my domain. As far as the objective state of affairs itself is concerned, there is no difference at all between inadvertence and deliberateness. In the end, the reality exists, and it makes no difference whether it came about inadvertently or deliberately, or whether there was an act of transgression here at all. The guilt offering atones for the factual defect that was created, irrespective of the offense committed in order to create that reality.

If so, the sin offering bears that name because it comes for the ‘sin’ in the act. A guilt offering is always an expression of guilt for something—that is, guilt that something happened. Therefore the guilt offering is called ‘asham’ because it comes for what happened, not for the sin inherent in that reality. True, one expression of this is that the guilt offering applies even to deliberate acts, but that is only a consequence of a deeper difference and not the essence itself. Hence some of the sin-related guilt offerings are brought for deliberate and inadvertent sin alike; this is an important feature of the guilt offering, though not an absolutely necessary one. If the defect exists only in the case of inadvertence, then the guilt offering will come only for inadvertence—as happens with the guilt offering for me’ilah, where only inadvertence creates a defect in the sacred domain.

It may be that the term ‘asham’ is indeed to be understood as Nachmanides suggested, from the language of desolation. A person performed an act whose consequences laid something waste. The guilt offering comes to atone for the devastation created, and not for the person’s sin.

It should be noted that until now we have dealt only with guilt offerings that come for sin. But in the purification guilt offerings this can be seen even more sharply. Those two guilt offerings certainly come for purification from a defective state of affairs, and not directly as atonement for some specific sin. In other words, in them too the factor that generates the sacrifice is a defective reality, not a matter of legal transgression. Perhaps this is the connection between the two different categories of guilt offerings.

D. The provisional guilt offering

We are left now with the third type of guilt offering, namely the provisional guilt offering. Here we encounter an even more extreme case: the sacrifice comes for an inadvertent act in a situation of doubt. This is the furthest possible case from deliberate sin, and yet one is still required to bring a guilt offering. Let us recall that the provisional guilt offering is one of the sin-related guilt offerings. We will see that our proposal resolves the problem here as well. The provisional guilt offering too comes for the defect, not for the offense.

Maimonides, in Laws of Corpse Impurity 9:12, writes as follows:

It is well known that all these impurities and the like that arise because of doubt are of rabbinic force, and no one is impure by Torah law except one who has become impure with definite impurity. But all doubtful cases—whether in impurity, forbidden foods, sexual prohibitions, or Sabbaths—have no status except by rabbinic enactment [even so, anything whose deliberate violation incurs karet, its doubtful case is forbidden by Torah law, for one who does it is liable to a provisional guilt offering], as we explained in the Laws of Forbidden Relations and in several places.

And the Ra’avad comments there:

Objection of the Ra’avad: ‘It is well known that all these impurities…’ This is a great error, for they said in many places: Torah-level doubt is treated stringently, and rabbinic doubt leniently; and this is a Torah-level doubt. Rather, he should have said that this is because it is a double doubt, and even with Torah law one is lenient.

From Maimonides’ wording—if we ignore for the moment the parenthetical clause, which has no convincing basis in the printed editions, and see further below—it clearly emerges that in his view, Torah-level doubt is treated leniently by Torah law in all types of doubtful cases. The obligation to be stringent in all doubtful cases involving Torah prohibitions is only rabbinic.

Several later authorities noted that this cannot be right, because according to it there are no cases of offense for which one would be liable to a provisional guilt offering. Even in a case where the prohibited status has been established—the very kind of case in which the obligation to bring a provisional guilt offering applies—the duty to be stringent in cases of doubt is only rabbinic. If so, there is no room for guilt-offering liability, because there is no offense here. Prima facie, according to Maimonides there is no place at all for the provisional guilt offering.

For this reason, some later authorities strained the wording of Maimonides and inserted the parenthetical clause cited above. By doing so they altered the text in order to explain that Maimonides meant only cases of doubt where no prohibited status had been established. But in cases where prohibited status had been established, they argued, the obligation to be stringent is Torah law even according to Maimonides, and therefore one who fails to be stringent in such a case is liable to bring a provisional guilt offering.

But all this is forced, and it is clear that Maimonides’ precise wording is that the obligation to be stringent is rabbinic both in doubts where no prohibited status has been established and in doubts where it has. Those parentheses are plainly implausible, because they say that with offenses whose deliberate violation incurs karet, the doubtful case is prohibited by Torah law. Yet in that same sentence Maimonides cites the Sabbath and idolatry as examples—both offenses carrying karet—and there too the obligation to be stringent is only rabbinic. Therefore this solution cannot be accepted.

The question therefore returns: how can we understand the obligation to bring a provisional guilt offering according to Maimonides, if there is in fact no Torah-level offense here at all?[10]

According to our approach, there is no difficulty at all and no need to force Maimonides’ wording. His words remain in place and are understood in their plain sense. True, there is no Torah obligation to be stringent in situations of doubt. But it is fitting to do so on the basis of reason, even without an explicit source. One who is not stringent in doubtful cases may infringe a prohibition and create a defective state of affairs, even if he has not violated any formal legal prohibition. For example, someone who ate forbidden fat deliberately committed a formal offense and also damaged the world or the soul by transgressing. But someone who ate possible forbidden fat committed no formal offense, since according to Maimonides there is no Torah command to suspect that this piece is indeed forbidden fat. Yet if in fact he did eat forbidden fat, then the factual defect has nevertheless occurred.

What should we do when there is a factual defect without any formal act of transgression? By now we will not be surprised to discover that one must bring a guilt offering—and in this case, the provisional guilt offering. Thus the provisional guilt offering continues the chain of evidence that guilt offerings are not brought for sin and offense, but for a defect in reality. The guilt offering relates to the objective state of affairs, not to the person.

Let us broaden the picture slightly and look at this from another, somewhat different angle. Maimonides’ view in several places (see, for example, the first root, and Nachmanides’ objections there) is that the obligation to observe rabbinic prohibitions is derived from the Torah prohibition against deviating from the sages. Nachmanides disputes Maimonides on this point in his glosses to the first root. He challenges Maimonides and argues that on his approach we should have to be stringent even with doubtful rabbinic prohibitions, since every doubtful rabbinic prohibition is really a Torah-level doubt about the command not to depart from the sages’ rulings.

Rabbi Shlomo Zalman Auerbach, in his commentary to Shema’ata A (preceded in this by Rabbi Shimon Shkop in Sha’arei Yosher, Gate 2), explains that the basis of rabbinic prohibitions is rebellion against the command. They contain no objective dimension of defect in the state of affairs; there is only an obligation of obedience to the commands of the Sages.[11] But when we are dealing with a doubtful case, there is here only a doubtful command. An act against a doubtful command cannot be defined as rebellion, and therefore it is not prohibited by Torah law. In their formulation: a doubtful command is not a command. By contrast, ordinary Torah prohibitions contain two dimensions: both a dimension of defect in the objective state of affairs and an element of rebellion against God’s command (a transgression in the person), and therefore one must be stringent in doubtful Torah prohibitions.[12]

Now let us ask ourselves: why must one be stringent in ordinary Torah law? Is it because of the command involved, or because of the factual defect caused by transgressing it? From the description above it emerges clearly that the obligation to be stringent stems only from the factual defect, because a doubtful command is not a command. If so, when we face a doubt about an ordinary Torah prohibition (not the command against deviating from the sages), the command element is absent because of the doubt, since a doubtful command is not a command—exactly as in the case of the prohibition against deviating from the sages. What remains is only the dimension of factual defect, and only because of it must one be stringent in doubtful cases. Thus the obligation to be stringent in doubts is not due to the command, but due to the concern for the defect created by the act. But according to our approach, a defect that is not produced through a formal act of transgression obligates one to bring a guilt offering. This is precisely the obligation of the provisional guilt offering in doubtful cases.

We should add that Tosafot on Keritot 17b, s.v. ‘mideseifa,’ holds that even in a double doubt one is obligated to bring a provisional guilt offering. The Lechem Mishneh on the Laws of Inadvertent Transgressions 8:2 infers that Maimonides apparently disagrees with them. The later authorities (see, for example, Sha’ar HaMelekh, Laws of Corpse Impurity 9:12) ask against Tosafot: how can there be liability for a provisional guilt offering when there is no obligation at all to be stringent in a double doubt—not even a rabbinic obligation? According to our approach, this is perfectly understandable, since the obligation to bring the guilt offering is not connected to the question whether there is a legal obligation to be stringent. Even if the person who was lenient committed no prohibition, he will still be liable to a provisional guilt offering if a defect was created.

True, according to the Lechem Mishneh, Maimonides disagrees with Tosafot. But it is likely that this is only for a side reason, since we have now seen that Maimonides too agrees that the provisional guilt offering, like the other guilt offerings, can apply even without sin. If so, this is a dispute about the precise parameters of the provisional guilt offering, but it does not depend on the question whether there is a legal obligation to be stringent in doubtful cases.

See also Sha’ar HaMelekh there, who asks against Tosafot how they could impose a provisional guilt offering in a double doubt. He answers in the name of the Pri Chadash (Yoreh De’ah, sec. 110, rules of double doubt, subsec. 17) that according to Tosafot, if the prohibited status had been established one must be stringent even in a double doubt. This is contrary to the Pri Chadash’s own conclusion there, where he rules leniently, against the Taz and other later authorities. The author of Sha’ar HaMelekh is astonished that the Pri Chadash did not notice that this is a dispute between Maimonides and Tosafot.

According to our approach, one may say that the Pri Chadash omitted nothing at all. He understood that whether according to Maimonides or according to Tosafot, one can say that in a double doubt there is room to be lenient, independently of the question of bringing a provisional guilt offering (which is the only point on which they disagree). The obligation of the provisional guilt offering is not connected to the question of legal transgression and the legal duty to be stringent in doubtful cases.

See further there in Sha’ar HaMelekh, who raises another difficulty against Tosafot: according to them, it follows from the first clause of the Mishnah in Keritot that even in the case of a single piece—and not only one piece out of two—there is liability for a provisional guilt offering in a double doubt, even though in such a case there is no room to say that one must be stringent in a double doubt. He is forced there to explain that according to Tosafot the first clause too is speaking of two pieces. But according to our approach there is no need for that, since on our reading Tosafot maintain that the provisional guilt offering exists even without any legal duty to be stringent in a doubtful case.

E. Summary

The conclusion that emerges from all the above is that guilt offerings, including the provisional guilt offering, are brought for a factual, meta-halakhic defect, even if no formal transgression accompanies it. We saw that all the sin-related guilt offerings follow this rule, and we explained several guilt offerings that are innovated in the Talmud (me’ilah in konamot) and among the medieval authorities (me’ilah for one who eats without first reciting a blessing), without any explicit source and without any formal Torah-level prohibition.

This also explains the fact that in most guilt offerings there is no distinction between deliberate and inadvertent action, because the guilt offering does not come for the person’s sin, but for the defect created in reality. The distinction between inadvertent and deliberate relates only to the degree of the person’s culpability, not to the question of the factual defect. We also noted that this makes it possible to understand the connection between the sin-related guilt offerings and the purification guilt offerings, since they too come to repair a factual defect and not a sin.

Underlying all this is the conception that there are binding meta-halakhic prohibitions even without any source in verses or in a law transmitted to Moses at Sinai. The guilt offering deals primarily with such prohibitions. We noted that the character of such prohibitions generally resembles crossing some boundary and invading a domain not our own. And the archetype of them all is me’ilah and the guilt offering for me’ilah.

Appendix: Explaining the duplication in the passage ‘Please say that you are my sister’

The entire line of thought above—according to which the difference between a guilt offering and a sin offering turns on whether the sacrifice comes for the person’s sin or for the injury (‘desolation’) in the objective state of affairs—first occurred to me while reading three puzzling passages in Genesis (see Torah Sheleimah on the portion of Toldot in the name of Midrash Ner HaSekhalim). Three times the Torah tells of almost the same incident involving one of the Patriarchs and his wife with a foreign king. In Lekh-Lekha, a story is told about Abraham and Sarah with Pharaoh. In Vayera, a similar case is described involving Abraham and Sarah with Abimelech. In Toldot, a third case is described involving Isaac and Rebekah with Abimelech. There are a number of differences between these three passages, and many of them can be understood in light of what we have said so far. We will now see this briefly.

In the portion of Lekh-Lekha, the text describes the matter as follows (Genesis 12:11–20):

When he was about to enter Egypt, he said to Sarai his wife: ‘Behold, I know that you are a woman of beautiful appearance. And when the Egyptians see you, they will say: This is his wife. Then they will kill me, but let you live. Please say that you are my sister, so that it may go well with me because of you, and that my life may be spared on your account.’ And when Abram came to Egypt, the Egyptians saw that the woman was very beautiful. Pharaoh’s officials saw her and praised her to Pharaoh, and the woman was taken into Pharaoh’s house. And because of her he treated Abram well, and he had sheep and cattle and donkeys and male servants and maidservants and female donkeys and camels. But the Lord afflicted Pharaoh and his house with great plagues because of Sarai, Abram’s wife. And Pharaoh called Abram and said: ‘What is this you have done to me? Why did you not tell me that she was your wife? Why did you say, “She is my sister,” so that I took her for myself as a wife? And now, here is your wife; take her and go.’ And Pharaoh gave men orders concerning him, and they sent him away with his wife and all that was his.

In the portion of Vayera, the text describes it thus (Genesis 20:1–18):

Abraham journeyed from there to the land of the Negev, and settled between Kadesh and Shur, and sojourned in Gerar. Abraham said of Sarah his wife, ‘She is my sister,’ and Abimelech king of Gerar sent and took Sarah. But God came to Abimelech in a dream by night and said to him: ‘Behold, you are a dead man because of the woman whom you have taken, for she is a married woman.’ Now Abimelech had not approached her, and he said: ‘Lord, will You slay even a righteous nation? Did he not himself say to me, “She is my sister”? And she too said, “He is my brother.” In the integrity of my heart and the innocence of my hands I did this.’ And God said to him in the dream: ‘I too know that you did this in the integrity of your heart, and I also withheld you from sinning against Me. Therefore I did not let you touch her. And now, restore the man’s wife, for he is a prophet, and he will pray for you and you shall live. But if you do not restore her, know that you shall surely die, you and all that is yours.’ Abimelech arose early in the morning and called all his servants and told all these matters in their ears, and the men were very afraid. Abimelech called Abraham and said to him: ‘What have you done to us? And how have I sinned against you that you have brought upon me and my kingdom a great sin? You have done to me deeds that ought not to be done.’ And Abimelech said to Abraham: ‘What did you see that you did this thing?’ Abraham said: ‘Because I said, Surely there is no fear of God in this place, and they will kill me because of my wife. And besides, she truly is my sister, the daughter of my father though not the daughter of my mother, and she became my wife. And when God caused me to wander from my father’s house, I said to her: This is the kindness you shall do with me—at every place to which we come, say of me, “He is my brother.”’ Then Abimelech took sheep and cattle and male servants and maidservants and gave them to Abraham, and he restored Sarah his wife to him. And Abimelech said: ‘Behold, my land is before you; dwell wherever it is good in your eyes.’ And to Sarah he said: ‘Behold, I have given your brother a thousand pieces of silver; behold, it is for you a covering of the eyes before all who are with you, and before everyone, and you are vindicated.’ Abraham prayed to God, and God healed Abimelech and his wife and his maidservants, and they bore children. For the Lord had completely closed up every womb of the house of Abimelech because of Sarah, Abraham’s wife.

In the portion of Toldot, the description is as follows (Genesis 26:6–12):

Isaac settled in Gerar. The men of the place asked him about his wife, and he said, ‘She is my sister,’ for he was afraid to say, ‘My wife,’ lest the men of the place kill him because of Rebekah, for she was beautiful in appearance. And when he had been there a long time, Abimelech king of the Philistines looked out through the window and saw, and behold, Isaac was being intimate with Rebekah his wife. Abimelech called Isaac and said: ‘But behold, she is your wife! So how could you say, “She is my sister”?’ Isaac said to him: ‘Because I said, lest I die because of her.’ And Abimelech said: ‘What is this you have done to us? One of the people might easily have lain with your wife, and you would have brought guilt upon us.’ And Abimelech commanded all the people, saying: ‘Whoever touches this man or his wife shall surely be put to death.’ Isaac sowed in that land and found in that year a hundredfold, and the Lord blessed him.

The principal difference relevant to our subject is that in the third passage Abimelech says to Isaac that he almost brought upon him an ‘asham.’ By contrast, the same Abimelech in the second passage says to Abraham that he almost brought upon him a ‘great sin.’ In the preceding verse too, the Holy One says to Abimelech that He prevented him from ‘sinning’ against Him. In the first passage, by contrast, what troubles Pharaoh is neither sin nor guilt, but punishment—the plagues that the Holy One brought upon him.

According to our approach, these three passages describe three kinds of wrongdoing. The first passage deals with fully deliberate sin. Here punishments follow, and therefore what troubles Pharaoh is only the punishment. In the second passage the act is inadvertent sin, and therefore what is poised to come upon Abimelech is ‘sin.’ In the third passage there is not even inadvertent sin, yet in the end another man’s wife has been taken from her husband, and that factual state, even if no transgression is involved, is an ‘asham.’

In the third passage, the men of the place ask Isaac about his wife—that is, they clarified the situation before taking her. Isaac misled them, and therefore they were acting under compulsion. In such a case there is not even ‘sin,’ but only ‘asham.’ The reality exists even if there is no sin, and for the reality one brings a guilt offering. The desolation in reality is the guilt.

In the second passage, Abimelech is described as taking Sarah without asking questions. The clarification is presented only at the end, when he claims that he had been told she was Abraham’s sister. This mode of presentation is meant to emphasize that there is sin here; this is not complete coercion. Another hint in that direction is that Abimelech claims before the Holy One that he acted with purity of hands and integrity of heart, and the Holy One answers him that indeed he acted with integrity of heart. Purity of hands is not mentioned here (see the novellae of Rabbi Yitzhak Zev on the Torah, who notes this). There is a clear textual hint here to a lack of purity of hands, because this is a case of inadvertence and not of coercion.

In the first passage Pharaoh does not speak at all either of sin or of guilt. What brings him to Abraham is the plagues that came upon him—that is, the punishment. This is a portrayal of deliberate sin that calls for punishment. For this reason we see that Abraham makes no effort at all to justify himself before Pharaoh, unlike in the next two passages.

After writing all this, I found the essence of our approach in Nachmanides. In his commentary on the verses in Lekh-Lekha he writes as follows:

It appears from the plain sense of the verses that Sarah did not agree to say so. Rather, the Egyptians were very wicked and sinful, and when they saw her and praised her to Pharaoh, she was taken to his house, and they did not ask them at all whether she was his wife or his sister. She remained silent and did not say that she was his wife, while Abraham himself said that she was his sister, and therefore they treated him well on her account. This is the meaning of the verse, ‘What is this you have done to me? Why did you not tell me that she was your wife?’ (below verse 18): he blamed him because when he saw that they were taking her, he ought to have told Pharaoh that she was his wife. Then he blamed him again for having said to the officials and to Pharaoh’s household that she was his sister. But he did not blame the woman at all, for it is not fitting that she should contradict her husband; what was fitting for her was to remain silent.

And the meaning of ‘because of Sarai, Abram’s wife’ is that because of the violence done to Sarah, and also to Abraham, and by the merit of both of them, those great plagues came upon him.

The term ‘violence’ or ‘wrongful taking’ appears here in Nachmanides’ words, drawn from the world of robbery. We saw the same above with regard to taking another man’s wife.

By contrast, in his commentary on the portion of Vayera, Nachmanides writes:

And Abraham said of Sarah his wife, ‘She is my sister’—this was not like in Egypt. For there, when they entered Egypt, ‘the Egyptians saw that the woman was very beautiful and praised her to the officials and to the king,’ for they were licentious people. But this king was innocent and upright, and his people as well were good; Abraham only suspected them and would say everywhere, ‘She is my sister.’

If so, these people were righteous, unlike the Egyptians in the earlier case. Further on in Nachmanides’ comments there, Abimelech is treated as a completely inadvertent transgressor; see there.

There is no explicit reference to the third passage in Nachmanides’ commentary. But immediately afterward, in his commentary to verse 19, when discussing Isaac’s dispute over the wells with Abimelech’s servants, he writes:

…And the meaning of ‘we did not touch you’ is: our hearts were not enticed by your wife so as to lay a hand on either of you, as in the phrase ‘whoever touches this man or his wife’:

‘We did only good to you’—by safeguarding all that was yours, for we commanded the people to beware of harming you:

‘And we sent you away in peace’—for even in our jealousy of you we did not take any of the wealth you amassed among us, but sent you away in peace with all that was yours:

And this fear that they feared him does not seem to mean that the king of the Philistines feared that Isaac would come against him in war. Rather, Abraham had assured them—him and his descendants and grandchildren (above 21:23). Now they said in their hearts that because we violated our covenant with Isaac and sent him away from us, he too might violate his covenant with us, and his descendants might drive our descendants from the land. Therefore they made a new covenant with him, and excused themselves by saying that they had not violated the first covenant, for they had done only good to him. This is the meaning of ‘let there now be an oath between us’—that we now enter with you into an oath, invoking a ban upon anyone who violates the covenant, like ‘that you may enter into the covenant of the Lord your God and into His oath’ (Deuteronomy 29:11):

It clearly emerges from Nachmanides that Abimelech’s people kept the covenant made with Abraham and did not touch Isaac or his wife. It appears from this that there was indeed no sin upon them at all—not even inadvertent sin—as we explained above.

These three stages are also valid in education toward commandment observance:

1. At the first stage one must educate toward fear of punishment: not to sin in order not to be punished. This is the first layer, the layer of deliberate sin, for which of course there is no sacrificial liability. From here it follows that one may not sin deliberately.

2. Afterward one must educate toward fear of sin—that is, to keep the commands of the Holy One and not violate His words, even without wicked intent. The problematic factor here is the transgression itself, and this is the layer of the sin offering. From here it follows that one may not sin even inadvertently.

3. At the third stage one must internalize the fact that the Holy One forbade these acts for some reason. Presumably they damage some layer of reality. Therefore, even if no sin rests on us, and certainly no deliberate wrongdoing, we must still be concerned that reality remain whole. This is the layer of the guilt offering, from which we learn that we are obligated to care for the wholeness of reality, beyond the various layers of sin.

[1] One might have said that in the case of the person afflicted with tsara’at there are two aspects: one severe, for which a guilt offering is brought, and one lighter, for which a sin offering is brought. This too seems implied in the continuation of Nachmanides’ words (‘the matter of the person afflicted with tsara’at…’). Therefore this rejection does not seem compelling, perhaps not even to Nachmanides himself.

[2] To be sure, this does emerge from Torat Kohanim, which is mentioned in Nachmanides’ own remarks (see also Kiddushin 12a). One might perhaps rely here on the words of Rabbenu Yonah’s students on folio 1b of the Rif to Berakhot, who explain that doubt is more severe than certainty because in doubtful cases a person tends to find excuses and view his act as though he had not sinned. And perhaps one can infer something similar from Nachmanides’ words, where he writes that this is meant to alert the sinner lest he become lax in bringing his atonement. Perhaps he does not mean that the sin itself is really more severe. But here the question concerns not a person’s perception of the sin, but the sin itself. Therefore this explanation does not really remedy the problem.

[3] In the case of Isaac and Abimelech (Genesis 26), the word ‘asham’ is used regarding the taking of Rebekah from Isaac, whereas in an earlier case (that of Abraham and Sarah with Pharaoh/Abimelech, in Genesis 20) the word ‘sin’ is used. In Appendix B to my book on Maimonides’ Sefer HaShorashim (still unpublished), I discuss the connection between those cases and the relation of that distinction to the distinction between the sin offering and the guilt offering, and to the two dimensions present in injury to marriage and in taking and violating another man’s wife. See further below, and in the appendix at the end of this article.

[4] See Avnei Milu’im, sec. 44, subsec. 3 (and also subsec. 5), who disagrees with him on this point.

[5] I later saw in Torah Sheleimah on Genesis ch. 26, sec. 54, in Rabbi Menachem Mendel Kasher’s notes, that he cites Rashi on Sanhedrin 57 (and see also the novellae of Rabbi Yitzhak Zev on the Torah to Vayera), as well as proofs from Nachmanides’ commentary to Genesis 34:13, that in the case of another man’s wife there are dimensions of robbery as well.

[6] It should be noted that in principle, Avnei Milu’im in sec. 44, who disagrees here with the Penei Yehoshua, can also accept the understanding that every married woman contains some dimension of robbery. The dispute is not on that question, but on whether that dimension prevents the betrothal from taking effect, or whether only the offense involved prevents it from taking effect. After all, with money one can steal it and the theft is effective. If so, perhaps in marriage too the robbery could be effective and the betrothal would take hold despite the prohibition.

However, in the case of money, what the act accomplishes in transferring the object to the robber is only to give him legal rights of theft so that we can hold him liable for unavoidable losses. That rationale is irrelevant to one who attempts to betroth another man’s wife, and therefore it is quite possible that there the betrothal will be ineffective even after the fact. See Kovetz Shiurim, Pesahim, sec. 18, though this is not the place to elaborate.

[7] According to this, it would seem that one should also bring a guilt offering for intercourse with an ordinary married woman, since clearly there too the same logic as in the designated maidservant applies (except that there is also the regular rule of forbidden relation). It may be that no guilt offering is brought there because a formal offense is also present, and therefore the sin offering or the death penalty serves the function of the guilt offering as well—perhaps something like the principle that the greater liability displaces the lesser.

[8] As the Penei Yehoshua notes, in several places in the Talmud we find formulations such as: ‘Why do I need a verse? It is a matter of reason,’ or ‘if you wish, say a verse; and if you wish, say reason.’ Such expressions apparently support the Penei Yehoshua’s view (see, for example, at the beginning of the book Mefa’aneach Tzefunot by Rabbi Menachem Mendel Kasher, in the essay ‘Svara as Torah law’). The Tzelach’s view seems to be that a logical argument whose purpose is to interpret some Torah law can generate Torah-level law, but a logical argument that creates a new law (as in the requirement of blessing before eating) cannot attain Torah status.

[9] See my article ‘How shall I curse whom God has not cursed, and how shall I denounce whom the Lord has not denounced’ (a discussion of monetary law in the Kovno Ghetto), Tzohar 20, Tevet 5765, p. 9, where at the end I pointed out that Rabbi Shimon Shkop gives two reasons for his novel principle. The first is that the prohibition of robbery itself presupposes prior concepts of ownership, for otherwise the concept of ‘robbery’ is undefined. The second is that the obligation to observe the Torah’s commandments is itself grounded in our own reasoning, and therefore additional obligations that arise from reason are no worse, and we too are obligated to observe them. The first rationale shows that there is a juridical boundary of ownership that the prohibition of robbery forbids one to cross. But the second rationale shows that there is also a legal prohibition, grounded in reason, against crossing that boundary—even before the specific legal prohibition of robbery exists. See further on this in the article by Avi Sagi cited there in note 15.

[10] See also Sha’arei Yosher, Gate 1, chapters 2–4, where he asks how one can confess over this guilt offering if there is no sin involved.

[11] See in this connection the well-known remarks of Netivot HaMishpat, Choshen Mishpat sec. 234, and in Atvan D’Oraita by Rabbi Yosef Engel, rule 10, and much more.

[12] See at length in Kovetz Ma’amarim by the martyred Rabbi Elchanan Wasserman, ‘Essay on Repentance.’