The Laws of the Labors – Lesson 16
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Sin offering and guilt offering: sin versus result
- The guilt offering of the designated maidservant and the dismantling of marital domain
- The guilt offering for misuse of sacred property: devastation created only unintentionally
- Two characteristics of the guilt offering: independence from intentional/unintentional status and the possibility even without a prohibition
- The guilt offering for thefts: invading ownership through denial under oath
- Purification guilt offerings: the nazirite and the metzora as repair of a damaged state
- The provisional guilt offering, doubts, and Maimonides versus the Raavad
- The three “she is my sister” passages in Genesis: punishment, sin offering, guilt offering
Summary
General Overview
The text examines the meaning of “unintentional sin” through the basic distinction between a sin offering and a guilt offering. It proposes that the sin offering comes for the person’s sin and therefore applies specifically to an unintentional act, whereas the guilt offering comes for a result created in reality, for the “devastation” produced in the object, in Nachmanides’ language. Therefore it usually does not distinguish between intentional and unintentional action, and can even be brought where there was no prohibition at all. The proposal is tested through different kinds of guilt offerings, and the exception of the guilt offering for misuse of sacred property is also explained: it is brought only for an unintentional act because the devastation of misuse is created there specifically in the unintentional case. It is then argued that the same principle also explains the guilt offering for thefts, the purification guilt offerings of the nazirite and the metzora, and the provisional guilt offering, and even resolves the difficulties in Maimonides regarding the topic of Torah-level doubt. In closing, an anecdote is brought from the three “say you are my sister” passages in Genesis, illustrating a distinction between intentional wrongdoing (punishment), unintentional wrongdoing (sin offering), and coercion/compulsion (guilt offering), as a distinction between sin and result.
Sin offering and guilt offering: sin versus result
The Mishnah and Rashi state that a sin offering is brought only for an unintentional act, while a guilt offering is brought both for an intentional act and for an unintentional act, with the exception of the guilt offering for misuse of sacred property, which is brought only for an unintentional act. The proposed idea is that the sin offering is called that because it comes for the transgression the person committed, and therefore it applies to an unintentional act and not to an intentional one, where the person “receives the punishment itself”; and of course there is no sin offering for an act done under compulsion. Nachmanides is described as explaining that the guilt offering is connected to “devastation,” and that it comes for the result the person created in the world itself, not for the dimension of sin in the person, and therefore it usually makes no difference whether the act was intentional or unintentional.
The guilt offering of the designated maidservant and the dismantling of marital domain
In the case of the designated maidservant, a guilt offering is brought even though there is a difficulty: the man who had relations did not necessarily violate a prohibition, and so the question arises what exactly he is bringing the guilt offering for. The explanation is that the guilt offering comes for the very invasion into a domain that is not his, and for the dismantling of a couplehood, meaning for the devastation created by the act and not for a transgression defined as a prohibition. Pnei Yehoshua is cited as an indication that the reason betrothal does not take effect in forbidden relationships stems from the severity of the prohibition, whereas in the case of a married woman the failure of betrothal to take effect also stems from the fact that she is simply someone else’s wife and is not “on the market.” In the designated maidservant there is only this second aspect, and therefore betrothal does not take effect there as well. The difference between the designated maidservant and an ordinary married woman is explained by saying that with an ordinary married woman, the punishment covers this dimension too, as a kind of “the greater penalty absorbs the lesser,” whereas with the designated maidservant, where there is no such punishment, the obligation of the guilt offering remains.
The guilt offering for misuse of sacred property: devastation created only unintentionally
With the guilt offering for misuse of sacred property, it is argued that the obligation only in the unintentional case stems from the laws of misuse themselves, because only in an unintentional act does the misuse transfer the object into non-sacred status and dismantle the “domain of holiness,” whereas in an intentional act the object remains within the sphere of sacred property. The distinction between intentional and unintentional is thus presented as a function of whether devastation was actually created, not of how severe the wrongdoing was. Therefore, in misuse, devastation exists only in the unintentional case, and so the guilt offering is brought only then. The students of Rabbenu Yonah are brought as an example for the statement that “whoever benefits from this world without a blessing is as if he committed misuse of sacred property.” According to them, one brings a guilt offering even though there is no Torah-level prohibition, because the guilt offering does not require a prohibition but rather the result of invading a domain. The Mishneh LaMelekh is described as struggling with “misuse in vow-prohibitions,” and the explanation given is that a vow creates a prohibition that takes effect on the object, unlike an oath, which is a prohibition on the person. Therefore, someone who violates a vow is as if he invades a domain that was created, and brings a guilt offering on account of that misuse, while for the prohibition of “he shall not profane his word” he receives lashes because of the person’s own wrongdoing.
Two characteristics of the guilt offering: independence from intentional/unintentional status and the possibility even without a prohibition
The conclusion is that the guilt offering comes to repair a result and to repair the “devastation,” or the erasure of the boundary between domains, and therefore it has no fundamental concern with whether the person acted intentionally or unintentionally. The text further states that even the very existence of a prohibition is not a condition for bringing a guilt offering, because the guilt offering does not come for the prohibition but for the damaged reality that was created. The distinction is completed by saying that the sin offering belongs to the dimension of sin and transgression, while the guilt offering belongs to the dimension of result and destruction.
The guilt offering for thefts: invading ownership through denial under oath
The guilt offering for thefts is defined as an obligation in a case where a person is holding someone else’s money, is sued, denies it, and swears; after it becomes clear that he lied, he brings a guilt offering. The text cites the question of Mahariv San: how can the principle “the burden of proof rests upon the one who seeks to extract money from another” be reconciled with a possible prohibition of theft, especially in a case of definite claim versus uncertain response, where the possessor himself does not know the truth. Rabbi Shimon Shkop, in Shaarei Yosher, Gate 5, is brought as arguing that the prohibition of theft differs from other prohibitions, because it derives from the laws of civil order and ownership that precede the command “you shall not steal.” Therefore, if the civil rules determine that in a certain doubt-case the possessor may retain the money, then there is no halakhic prohibition of theft here. On that basis it is argued that in theft there are two dimensions: the prohibition of “you shall not steal,” and the dimension of invading ownership or domain, and the guilt offering belongs to the second dimension.
The text proposes that the guilt offering for thefts does not come for the oath itself, but for “the theft within the matter,” and that the oath is needed in order to seal the denial and turn a case of money that originally came permissibly into one of clearly holding someone else’s money unlawfully, without a classic act of “and he stole the spear.” The explanation compares this to cases where there is punishment or treatment within the prohibition itself, in which case the guilt offering is “absorbed” and not required, whereas here the dimension of the result remains — the injury to ownership — and that obligates a guilt offering. It is also noted that one does not bring the guilt offering until returning the principal, which is presented as a sign of the link between the obligation of the guilt offering and actually repairing the situation.
Purification guilt offerings: the nazirite and the metzora as repair of a damaged state
After the three “sin-related guilt offerings,” it is argued that there is no fundamental difficulty in there also being “purification guilt offerings” for the nazirite and the metzora, because even in the sin-related guilt offerings, the guilt offering does not come for sin but for the repair of a damaged state. The purification guilt offerings are described as part of a process that restores the person to a repaired and purified state after an unhealthy condition of impurity or tsaraat has arisen. The conclusion is that, in its essence, the guilt offering is a sacrifice of repair, and therefore there is one continuous line connecting sin-related guilt offerings and purification guilt offerings.
The provisional guilt offering, doubts, and Maimonides versus the Raavad
The provisional guilt offering is defined as an obligation when a person may have violated, in doubt, something whose intentional violation incurs karet and whose unintentional violation incurs a sin offering — for example, doubtful forbidden fat or doubtful forbidden relations and Sabbath. The dispute between Maimonides and the Raavad is cited (Laws of Impurity of the Dead, chapter 9) regarding whether “a Torah-level doubt is treated stringently” is itself Torah law or rabbinic law. Maimonides rules that doubts are from the Sages, and only definite impurity is from the Torah, while the Raavad calls this “a great error.” The text rejects emendations to Maimonides that try to exclude matters whose intentional violation incurs karet in order to justify the provisional guilt offering, and argues that the added phrase “and nevertheless” looks like a marginal note that entered the body of the text contrary to Maimonides’ intent.
The Shemaita and Pnei Yehoshua are brought as attempts to reconcile Maimonides through distinctions such as “there is some prohibition present” or “one piece out of two pieces,” but the text argues that the question never gets off the ground, because a guilt offering does not depend on the existence of an actual transgression. Rabbi Shimon Shkop, in Shaar HaSfeikot, is cited as presenting two conceptions of doubt: concern lest you stumble into a prohibition, versus a prohibition of “entering the house of doubt.” The text adopts a framework of problematic “territory” from which one ought to stay away, so that the guilt offering comes for the very entry into the zone of doubt and not for a definite prohibition. This sharpens the idea that the halakhic prohibition in a case of doubt may be only rabbinic, while the problematic nature of the act remains a reality that requires repair through a guilt offering.
As evidence that even something halakhically permitted may still remain “not fully clean,” the text cites the law of “something that will later become permitted,” showing that even in a rabbinic doubt there is logic in waiting and refraining from relying on permission when one can obtain full permission later on. From this it is argued that a doubt need not be a Torah-level prohibition in order to create a problematic condition that generates the obligation of a provisional guilt offering. Tosafot in tractate Keritot 17 are cited as saying that even in a double doubt one brings a provisional guilt offering, and the text rejects strained readings that infer from this that a double doubt is prohibited specifically in karet cases or where “there is some prohibition present,” insisting that no prohibition is needed in order for there to be an obligation of a guilt offering.
The three “she is my sister” passages in Genesis: punishment, sin offering, guilt offering
In closing, an anecdote is presented from the three “say you are my sister” passages in Genesis, illustrating the distinction between sin and result. In the portion of Lech Lecha with Pharaoh, an intentional act is described, and therefore we find, “And the Lord afflicted Pharaoh with great plagues,” that is, punishment. In the portion of Vayera with Avimelekh and Abraham, an unintentional act is described, and therefore Avimelekh says, “for you have brought upon me and upon my kingdom a great sin.” In the portion of Toldot with Avimelekh and Isaac, a case of compulsion is described, where Avimelekh investigated and asked, “And the men of the place asked about his wife,” and so when he almost stumbled he says, “and you would have brought guilt upon us,” because here there is no sin, but rather the almost-realized result of damage in reality.
Full Transcript
[Rabbi Michael Abraham] Okay, last time we started trying to clarify the meaning of unintentional sin — actually this is already the second time — but we started clarifying the meaning of unintentional sin by looking at the differences between a sin offering and a guilt offering. And the basic difference, which appears both in the Mishnah and in Rashi, is that a sin offering is brought only for an unintentional act, while a guilt offering is brought both for an intentional act and for an unintentional act. I said there is an exception — someone pointed it out in the lecture too — that the guilt offering for misuse of sacred property is brought only for an unintentional act, and that actually gives us some sort of hint that the fact that a guilt offering does not distinguish between unintentional and intentional action is not the fundamental point. Rather, it is an expression of some other characteristic of the guilt offering, which usually expresses itself in not making a distinction between unintentional and intentional action, but there can also be exceptional cases where that same idea expresses itself differently. For now, just on the purely logical level.
And then I said, I proposed the following: that a sin offering is brought for the sin — that’s why it’s called a sin offering — meaning, for the transgression the person committed. And therefore the sin offering is brought only for an unintentional act and not for an intentional one, because in an intentional case, in the end, you receive the punishment itself. A sin offering is for a lighter transgression, one atoned for by a sacrifice and not by actual punishment. But of course you would not bring it for an act done under compulsion. For an intentional act there is the other punishment.
By contrast, with a guilt offering, there is no difference between intentional and unintentional. Why? Because it is brought for the very fact — for the devastation you created, in Nachmanides’ language; guilt offering from the language of devastation. The very result of your act is what obligates the guilt offering, not the dimension of sin in the person, but the result in the object. And therefore it really makes no difference whether you acted unintentionally or intentionally. In the end, if it happened, then you have to bring a guilt offering. That’s the claim.
Now, if that is really correct, then I started going through the different kinds of guilt offerings and tried to show, in each of them, that this is indeed how the guilt offering can be understood. So we started with the guilt offering of the designated maidservant, and I said that in that case one of the problems the later authorities deal with is that a sacrifice is brought there but there is no sin. That is, the woman may indeed have violated some prohibition — the maidservant — but the man who had relations with her did not violate any prohibition. And if he didn’t violate any prohibition, then for what is he bringing the guilt offering?
I said that he brings the guilt offering for the very fact that he entered a domain that was not his. He had relations with a woman who is the wife of someone else. Not the transgression in the matter, but the result itself: he dismantled a home, he dismantled a pair-bond. That destruction, that devastation he created, is what obligates the guilt offering. I brought a proof or at least an indication from the Pnei Yehoshua, who explains that the reason betrothal does not take effect in forbidden relationships is the severity of the prohibition, and the reason betrothal does not take effect with a married woman is that she is simply another man’s wife — she has no legal capacity to accept betrothal, she’s not available, okay? Aside from the prohibition, of course, there is also the prohibition dimension, like in all forbidden relationships, but there is also this aspect. Where is the practical difference? In the designated maidservant. In the designated maidservant there is no prohibition in that sense, although there is a married-woman aspect; there is no prohibition, but she is still someone else’s wife. Therefore, says the Pnei Yehoshua, betrothal will not take effect even with a designated maidservant, although there is no prohibition there.
Okay, what does that actually mean? That the designated maidservant is the best illustration of this aspect that exists in every case of a married woman. In every married woman there are two aspects: the severity of the prohibition, and the fact that there is some kind of couplehood here that you are dismantling. In the designated maidservant there is only the second aspect. Therefore the fact that betrothal does not take effect there too shows that the failure of betrothal to take effect is not based only on the severity of the prohibition, but also on the fact that you are invading another domain, destroying a couplehood or something like that. So the designated maidservant is a good illustration of this idea; that is why a guilt offering is brought there.
Why is a guilt offering not brought in the case of a regular married woman? After all, aside from the punishment, a guilt offering should also be brought; at the end of the day, you also dismantled a couplehood. Yes, but the punishment is apparently a kind of “the greater penalty absorbs the lesser one”; the punishment itself probably covers that dimension too. In the designated maidservant, where there is no punishment, only the guilt offering remains. After all, in the designated maidservant there is the…
[Speaker B] Two points. The severity of the act may itself be an expression of the destruction of the family unit, so the punishment for a married woman already…
[Rabbi Michael Abraham] Yes, but then why with a guilt offering — why in the designated maidservant is it not like that?
[Speaker B] Because there there isn’t that severity.
[Rabbi Michael Abraham] Why isn’t there that severity? But the destruction of the marital unit exists there too. You’re saying the severity is a result of that.
[Speaker B] So apparently not. There is simply more severity there.
[Rabbi Michael Abraham] Then you’re coming back to what I’m saying.
[Speaker B] Yes, no, I’m saying that the severity itself may stem from…
[Rabbi Michael Abraham] No, no, it can’t be, because if it were like that, then it would have to be true in the designated maidservant too. That’s exactly the point. Meaning, you’re saying no, there are two things here. Okay, so the fact that there are degrees means there are two things. You’re just saying that the difference between them may be quantitative rather than qualitative — that can be debated.
Fine, but for our purposes, that’s the designated maidservant. What about the guilt offering for misuse of sacred property? That’s the second sin-related guilt offering. There too we saw that, yes, even regarding a woman, where it says that when someone has relations with a married woman, it says, “and she commits a trespass against her husband,” and therefore she becomes forbidden. So basically there is misuse there; that’s why she becomes forbidden. And therefore Maharik said that if she is not aware of the prohibition, but she is aware that the man having relations with her is not her husband, then she becomes forbidden. Even though that is an unintentional case. Only if she is not aware that it is not her husband — she simply thinks she is having relations with her husband and she is mistaken and it is not her husband — then she does not become forbidden. Why not? The prohibition is the same prohibition; in both cases there is an unintentional act in the prohibition of adultery. Yes, but the destruction of the marital unit is absent in the first and present in the second. And therefore misuse, in its essence, means the dismantling of the marital unit; misuse is not the prohibition in the matter.
And then I said that in the regular guilt offering for misuse of sacred property — not the guilt offering of the designated maidservant, which is itself also a guilt offering of misuse. The guilt offering of the designated maidservant is also a guilt offering of misuse, based on “she committed a trespass against her husband,” okay? Now in the regular guilt offering for misuse of sacred property, someone who misused sacred property — there the claim is: why is it only in the unintentional case and not the intentional one? Because only in the unintentional case does the misuse transfer the object into non-sacred status. It takes the object out of the domain of sacred property. In other words, only in the unintentional case did you dismantle the sacred domain, the domain of the Temple treasury, the divine domain, right? Because you transferred the thing from sacred to ordinary status. Therefore only there do you bring a guilt offering and pay principal plus an additional fifth. Right. Why? Because in an intentional case it remains within the sphere of sacred property. So there is the prohibition of misuse even in an intentional case, but the dimension of misuse in the sense of the devastation the misuse created — that sense, that you took something out of holiness into ordinary status — exists only in the unintentional case and not in the intentional one. Therefore only in the unintentional case is a guilt offering brought.
And that is the indication that the comparison between unintentional and intentional is not the essence of the guilt offering; it is a consequence. Usually, once there has been an exit, once you dismantled it and the devastation was created — what difference does it make whether it was intentional or unintentional? Bring a guilt offering. In misuse, it’s just that according to the laws of misuse, the devastation is created only unintentionally and not intentionally. Not because of the laws of the guilt offering, but because of the laws of misuse. Meaning, the misuse — the devastation — is created only unintentionally. So the guilt offering will be brought only for an unintentional act, but not because of the laws of the guilt offering. The guilt offering does not distinguish between intentional and unintentional. The guilt offering is not interested in whether you acted intentionally or unintentionally. What interests it is whether the devastation occurred. And in the laws of misuse it turns out that devastation occurs only for an unintentional act and not for an intentional one. Therefore the guilt offering is brought there only for the unintentional case and not for the intentional one.
I brought two examples for this. One example is someone who ate without a blessing — a blessing over enjoyment — who according to the students of Rabbenu Yonah brings a guilt offering. Now how can you bring a guilt offering when there is no prohibition at all? After all, the prohibition to eat without a blessing is rabbinic, right? In cases of doubt concerning blessings we rule leniently. So how can you bring a guilt offering? The answer is: a guilt offering doesn’t need a prohibition. The guilt offering is brought for the result. Once you have, as it were, committed misuse — right? That’s what the Talmud says there: “Whoever benefits from this world without a blessing is as if he committed misuse of sacred property.” What does that mean? The misuse exists — not the prohibition of misuse in the sense of a Torah negative commandment; there is no Torah negative commandment here, it is a rabbinic prohibition. But the misuse exists, the reality that you invaded the domain of the Holy One, blessed be He, took something without permission and benefited from it without first reciting a blessing. Okay? That means you created the devastation here. So there is no Torah-level prohibition here, true, but you bring the guilt offering. That is exactly the point. Therefore there is no need to say that there is a Torah-level prohibition in order to understand why one is liable for a guilt offering here. The guilt offering does not require a prohibition; it does not come for the prohibition. The sin offering comes for the prohibition. When you violated the prohibition, you bring a sin offering. The guilt offering comes for the destruction you created, not for the prohibition that happened here. Exactly as we saw with misuse regarding a woman — all these things are the same, all of them go along the same track.
A second example is the guilt offering for misuse in vow-prohibitions. That’s a real mystery. The Mishneh LaMelekh is tearing his hair out there; he doesn’t understand what is going on. The Talmud suddenly invents that someone who violates a vow-prohibition brings a guilt offering. Why? A guilt offering for misuse — why? Is a vow some holy thing? There is no holiness at all in a vow. We derive it from sacred property, true, but an ordinary vow, a non-sacred vow, has no connection to holiness. You didn’t consecrate the thing to Heaven. You prohibited the thing to yourself. Why is that related to misuse of sacred property? What does it have to do with the issue? There is no source at all for misuse in vow-prohibitions. It is not brought from any source. The Mishneh LaMelekh doesn’t understand where the Talmud came up with this. He remains with the matter unresolved. He does not understand where this came from.
More than that: for the prohibition of vows there are lashes — “he shall not profane his word” — like any other negative commandment. There is a prohibition; there is the punishment of lashes. So where does the guilt offering come from? And by the way, a guilt offering applies both to intentional and unintentional acts. Even if you violated the prohibition intentionally, in which case you are liable to lashes for “he shall not profane his word,” besides that you also bring a guilt offering for misuse in vow-prohibitions, because with a guilt offering there is no difference between intentional and unintentional. Why? What’s the connection?
So I said that the difference between an oath and a vow — the Talmud at the beginning of tractate Nedarim says that with a vow there is an operative prohibition on the object, whereas an oath is a prohibition on the person. If, say, I swear not to eat something, then the thing itself does not become an object of prohibition. I am prohibited from performing the act of eating; I swore not to do it. But if I vow not to derive benefit from something, then it’s not that I merely have a prohibition against benefiting from it; rather the thing itself becomes an object of prohibition. As a result, I am then prohibited from eating it. Meaning, the prohibition on the person is a consequence of the prohibition taking effect on the object, unlike an oath.
Why is that important for our purposes? Because it means that when I violate a vow-prohibition, it is not like violating an oath-prohibition. Violating a vow-prohibition means, once again, ruining or profaning a domain that I created. The vow created a separate domain, one I am supposed to remain outside of; I am forbidden to invade it. That is the operative prohibition resting on the object, as happens with sacred property. Therefore when I enter that domain I bring a guilt offering — not because that domain is a divine domain. There is nothing holy there at all, and the commentators get terribly tangled up in this. There is no need at all to get tangled up in it. There is nothing holy there. But since I invaded a domain that was not mine, that is why I bring a guilt offering. And this has nothing to do with the negative commandment. For the negative commandment I receive lashes — “he shall not profane his word” — and that belongs to the dimension of wrongdoing in the person. Punishment and sin offering belong to the wrongdoing of the person. But for the very fact that I invaded — that yes, I trampled the boundary between that domain and myself, I was supposed to stay outside and I invaded inside — yes, I destroyed something. For that I bring a guilt offering. That is called a guilt offering of misuse in vow-prohibitions.
And in principle, for that you do not even need a source. Meaning, once I invade a domain I am not supposed to be in, that itself means I bring a guilt offering. Once it is defined as an object-centered prohibition, that requires a source. Once it is defined as an object-centered prohibition, then if I invaded it I bring a guilt offering. Meaning, that does not require a source, because a guilt offering is brought for this type of thing.
Okay, so these are the two examples that show us the character of the guilt offering. On the one hand it is brought for the devastation; because it is brought for the devastation, it makes no difference whether you acted intentionally or unintentionally. And not only does it make no difference whether you acted intentionally or unintentionally, but you do not even need a prohibition at all. That is, a guilt offering can come even without a prohibition. Because the point is not the prohibition in the matter. If the point were the prohibition in the matter, then there would be room to distinguish between intentional and unintentional, depending on what level of prohibition there is. But if the sacrifice is brought for the result, then the result can occur both where there is a prohibition and where there is no prohibition, and therefore it also makes no difference whether you acted intentionally or unintentionally. Intentional or unintentional is a question of the level of your sin, the level of your prohibition. Sin — that’s the sin offering. But if you are talking about the result, what difference does it make whether it was intentional or unintentional? You need to repair, in some way, the result you brought about, the devastation you created, and that is basically the meaning of the guilt offering.
So much, briefly, for what I did last time. I now need to get to two more kinds of sin-related guilt offerings, and the purification guilt offerings of the nazirite and the metzora. The third sin-related guilt offering is the guilt offering for thefts. After that there is the provisional guilt offering, which is a category of its own but is also basically a sin-related guilt offering, and then the purification guilt offerings of the nazirite and the metzora. I’ll show you the same thing there too. Let’s start with the guilt offering for thefts.
What is the guilt offering for thefts? Not everyone who stole brings a guilt offering, even though it is called the guilt offering for thefts. When do you bring the guilt offering for thefts? When you have in your possession someone else’s money, he claims it from you, you say, “I don’t have it,” and you swear to that. Once you swore to that, if it turns out that you lied — that the money is indeed with you — then you have to bring a guilt offering for thefts. Okay?
Now, the claim I want to make is that the guilt offering for thefts also expresses the same idea. It is a guilt offering because that same idea is expressed there. Why? So maybe I’ll start with the well-known question of Mahariv San. Mahariv San basically asks: why is the rule that the burden of proof rests on the one who seeks to extract money from another? If someone claims money from me and I deny it, then the burden of proof is on him. If he does not bring proof, then the money stays with me. Right? The burden of proof rests on the claimant. In the language of later authorities, a monetary doubt is ruled leniently. Possession matters. Not necessarily presumption, but possession.
Now Mahariv San asks: at the end of the day, if I keep money that is not mine, then I have violated the prohibition of theft, right? So really there is a doubt here about the prohibition of theft. If the money is mine, fine. If it is not mine, then I am violating the prohibition of theft. We do not know whose money it is, because no one brought proof. So there is a doubt about the prohibition of theft here. If there is a doubt about the prohibition of theft, we ought to rule stringently — in a doubtful prohibition we rule stringently. So how can we allow the possessor to keep the money? That is Mahariv San’s question.
Of course, in itself this is not difficult at all. Why? Because the person says the money is his. He knows the truth. The religious court is in doubt, because the court does not know who is lying and who is right, the claimant or the defendant. But the defendant himself, who is keeping the money, knows the truth. Right?
[Speaker B] But there’s some issue here like, wherever you put it, it has to be with one of them; whichever one you don’t give it to, it will be…
[Rabbi Michael Abraham] You can throw it into the sea. Meaning…
[Speaker B] But that would still be theft, because it’s not…
[Rabbi Michael Abraham] No, that’s not theft. No, no — that’s exactly the point.
[Speaker B] Why? In terms of your ruling it’s still something that you are withholding from him…
[Rabbi Michael Abraham] Why? So that neither of them should violate the prohibition of theft, throw it into the sea. Or let it remain until Elijah comes, in the custody of the religious court.
[Speaker B] And that’s exactly what he’s trying to decide, with which of them to place it.
[Rabbi Michael Abraham] No, no. That’s what Mahariv San is asking. Why? Why is he trying? Let him not try. Let him take the money into his own custody, and then neither of them will violate the prohibition of theft.
[Speaker B] But the religious court also needs to know what the Jewish law is concerning which of the two of them keeps the money with him.
[Rabbi Michael Abraham] Neither. Neither. It won’t be with either of them.
[Speaker B] What do you mean?
[Rabbi Michael Abraham] No, no… again. No. The Jewish law is that the religious court takes the money and keeps it. If there is no religious court… what does that have to do with anything? This is not…
[Speaker B] It’s not about the religious court, it’s a rule of…
[Rabbi Michael Abraham] No, the Jewish law is that you place the money with the religious court and wait. That’s the law. What’s the problem?
[Speaker B] And if there is no religious court? What is the law between the two of them?
[Rabbi Michael Abraham] There isn’t — the law is to place the money with the religious court and wait. Let it remain until Elijah comes.
[Speaker B] Surely that’s… you’re adding another solution.
[Rabbi Michael Abraham] I’m not adding any other solution. Again, you’re going back… I’ll say it again. You’re repeating it and I’ll repeat it too. It doesn’t stay with either of them. You place it with the religious court so as not to violate the prohibition of theft. You don’t want it with the religious court? Put it on top of the air conditioner up there. It doesn’t matter. You should not be holding it — that’s theft. That’s all. The religious court is not some extra thing; the religious court is the thing itself. “Let it remain until Elijah comes” was not said only when people come to court. “Let it remain until Elijah comes” is a rule of interpersonal law when dealing with money. Let it remain until Elijah comes — you don’t touch it, because otherwise you are a thief.
Except that the point is that if the person himself knows that this money is his, what do you want from him? He is not in doubt; the court is in doubt. One can say: yes, but the question is not about that. The question is what happens when the claimant claims with certainty and I defend myself with uncertainty. The rule is that certainty defeats uncertainty, but that’s when there is no possessor. If there is a possessor, that is a dispute among the Amoraim. Right? If the claimant claims with certainty and I say, “I don’t know, maybe,” then the possessor is making an uncertain claim. What happens in that case? It is a dispute among the Amoraim, and in practice we rule that certainty does not defeat uncertainty. Meaning, to extract from a possessor, certainty does not help. To extract from a possessor you need proof; you cannot extract from a possessor merely with a claim. Right? Certainty means trying to extract merely on the basis of a claim.
Okay? So in a case of certain claim versus uncertain response, the possessor is claiming uncertainty, the claimant is claiming certainty but brings no proof. What happens in such a case? Still, the burden of proof rests on the one who seeks to extract. The money remains with the possessor. Now there it really is difficult. Why? Because the possessor himself does not know the truth, so he ought to rule stringently because of the doubt, in order not to violate the prohibition of theft. And there Mahariv San asks: so why do we say there too that the burden of proof rests on the claimant?
Fine. So there are various approaches. Rabbi Shimon Shkop talks about this — I think in Gate 5, yes, Gate 5. And what Rabbi Shimon Shkop ultimately argues is the following. He says that the prohibition of theft is different from all other Torah prohibitions. In all other Torah prohibitions, the Torah’s command creates the prohibition. The Torah prohibited eating pork — now there is a prohibition against eating pork because the Torah commanded not to eat it. In theft, you are forbidden to take the money because it belongs to someone else. The fact that the Torah prohibited taking the money is because it belongs to someone else, not that the money belongs to someone else because there is a prohibition of theft. The other way around. The prohibition of theft is because the money belongs to your fellow, and you are forbidden to take the money because it is your fellow’s. When the Torah prohibited it in “you shall not steal,” it gave formal endorsement to a prohibition that already exists before the command.
Where does that prohibition come from? This is what he calls the laws of civil order. There is a prohibition that comes from the laws of civil order. What does that mean? The legal system basically determines the laws of acquisition. What belongs to whom? From various situations — you performed an act of acquisition, you stole, you didn’t steal — each such situation has a definition of who is considered the owner. When you harm the owner, take the money from him, that is where the prohibition of theft applies. That is how Rabbi Shimon Shkop explains it.
He says this has to be so. Why does it have to be so? Because when the Torah says “you shall not steal,” it is basically saying to you: do not take money that belongs to someone else. But where is the definition of to whom the money belongs? You have to presuppose the laws of property, because without first presupposing the laws of property you cannot define the prohibition of theft. You define theft as taking something that is the property of someone else. In other words, the prohibition of theft presupposes the existence of a system that determines what property belongs to whom — a system of property law. Okay, that is the assumption. Where are those definitions found in the Torah?
[Speaker D] That was what was missing here.
[Rabbi Michael Abraham] Exactly. So Rabbi Shimon Shkop says: yes, it is well known that tractate Bava Batra is a tractate without verses. Right? It’s a tractate — and Bava Metzia also has a little bit, but Bava Batra too — a tractate dealing with acquisitions, a tractate without verses. There are reasonings: you acquire this by lifting, by this, by possession, money, document, and all sorts of things of that kind. It’s all logical reasoning. Or not logical reasoning, but social-legal definitions that do not emerge from the Torah. There are certain things that do come from the Torah, but most of them have no source in the Torah.
[Speaker E] For example, symbolic transfer?
[Rabbi Michael Abraham] Yes, but even that is not from the Torah but from the Scroll of Ruth. As for money, or pulling possession, Rabbi Yohanan and Reish Lakish there perhaps bring acquisition by money.
[Speaker F] Yes, but that’s rare.
[Rabbi Michael Abraham] Meaning, most things are basically definitions of the Sages. So Rabbi Shimon Shkop says like this: clearly, when the Torah prohibits stealing, it presupposes the existence of a system of property laws. Where does that system of property laws come from? Apparently from a social-legal determination that precedes the Torah. Once that determination exists, we know what belongs to whom, whose property is whose. Now if you steal, you are harming someone else’s property, and you violate the prohibition of theft. But first of all, there is some legal definition that says what belongs to whom. That is not a definition the Torah states; it is a legal definition. Now, people commonly think — I once had an argument about this with Rabbi Meir Berkowitz — he claims that… and this is the common assumption… that the definition of what belongs to whom is only a definition. Meaning, without the command “you shall not steal,” if I took someone else’s money I would not have violated any prohibition. I only took money that is defined as someone else’s property. The Torah is what created the prohibition; when it said “you shall not steal,” it was basically saying that when you take someone else’s money, there is also a prohibition here — not just that you violated a definition, but that there is an actual prohibition. He is mistaken. You can show this from Rabbi Shimon… well, “mistaken” — that is not what Rabbi Shimon Shkop says. He can say it himself if he wants, but that is not what Rabbi Shimon Shkop says.
Rabbi Shimon Shkop means to say that there is also a prohibition even before “you shall not steal.” There is a legal prohibition, and on top of that there is also a halakhic prohibition. How do I know this? Two proofs. One proof is that Rabbi Shimon Shkop argues that therefore theft from a non-Jew would be prohibited according to all opinions. There is a dispute whether theft from a non-Jew is prohibited by Torah law — whether it is included in “you shall not steal.” Rabbi Shimon Shkop says yes, but really theft from a non-Jew is prohibited by Torah law according to everyone. Even according to those who say that theft from a non-Jew is not prohibited under “you shall not steal,” it is not prohibited under that verse, but it is prohibited by the laws of civil order. Because a non-Jew too obviously has ownership. So if you violate the ownership of a non-Jew, you have violated the legal prohibition of theft. True, here the prohibition of “you shall not steal,” according to those opinions among the medieval authorities, was said only regarding theft from a Jew. But the legal prohibition still exists even with respect to a non-Jew. Clearly, he is saying that what happens on the legal level is not merely a definition that you have ownership, but also a prohibition against harming your ownership. There is legal theft. On top of that the Torah adds “you shall not steal,” religious theft. What? “And you shall do what is right and good,” kind of? No, that’s something else. “And you shall do what is right and good” — fine, maybe it is also included there. Here he is talking about a prohibition of theft, not just “do what is right and good.” And by the way, “do what is right and good” is not itself a prohibition either. No one who counts the commandments includes it in his count.
[Speaker B] There’s also a way to understand that there is some prohibition against causing another person a loss even without stealing it. Meaning, it’s forbidden to damage his property.
[Rabbi Michael Abraham] No, that’s something else, though true, it’s like “do what is right and good.”
[Speaker B] You could say that from the standpoint of the laws of civil order.
[Rabbi Michael Abraham] Fine, but I’m saying that here he says there is a prohibition of theft, beyond the prohibition of causing a loss. There is an actual prohibition of theft. The prohibition of theft itself exists even before “you shall not steal.” The prohibition of theft itself, not damaging, not safeguarding…
[Speaker B] This…
[Rabbi Michael Abraham] They too can be a result of the laws of civil order. No, it’s not the same thing. These are different prohibitions. The laws of civil order are not one single thing either. It’s a whole system, an entire Hoshen Mishpat. It’s just a Hoshen Mishpat that does not derive from the Torah’s command, but simply… no, they have the force of prohibitions, not of negative commandments, but they can still be different prohibitions: damaging, stealing, all sorts of things.
[Speaker B] And what does “different” mean? Like, it’s legal… fine, everything’s all right…
[Rabbi Michael Abraham] Different prohibitions, what? Violence, yes. So the claim is basically — perhaps another proof — Rabbi Shimon Shkop asks in chapter 2 of Gate 5: if indeed this has no source in the Torah, then why obey it? Why obey it? What obligates me to obey it?
[Speaker F] Maybe it’s some sort of social mechanisms…
[Rabbi Michael Abraham] Doesn’t matter; those are explanations for why the Torah prohibits it.
[Speaker B] And if that’s the case, then of course you have to obey, because otherwise you won’t be able to keep the Torah if you don’t obey. If there’s no concept of ownership, you won’t be able to keep the Torah…
[Rabbi Michael Abraham] No, no. Maybe I should first say one more thing. How does this resolve Mahariv San’s question? After that I’ll get to this other question. How does it resolve Mahariv San’s question? Mahariv San says: from the standpoint of my holding the money, okay? Now suppose I say “I’m not sure,” so I am in doubt. Mahariv San asks: then why am I allowed to keep the money with me? There is a doubtful prohibition of theft here. He says: no, why? Because if the law of civil order says that I can keep the money with me, then there will not be a prohibition of theft either. Because the prohibition of theft exists only when I am holding money that is not mine according to the law of civil order. But if, according to the laws of civil order — in this case procedural law or rules of evidence — it says that I may keep the money with me even if I have no proof, and even if I do not know, and even if I am in doubt, for all sorts of reasons, but legally I may keep the money with me, then halakhically there will also be no prohibition.
What is this legal reasoning of Hoshen Mishpat? This reasoning that the burden of proof is on the claimant is legal reasoning. There is legal logic in establishing procedure this way. Once there is such legal logic, I should not be troubled by the possibility that there is a prohibition of theft here. And that’s the point.
[Speaker B] Why isn’t the prohibition of theft in force?
[Rabbi Michael Abraham] No, because that’s not what was said in the prohibition of theft. The prohibition of theft is when you hold money that is not yours. No — when you hold money that is not yours, you are a thief. There is no reasoning there.
[Speaker B] If you hold money that is not yours, then you are a thief.
[Rabbi Michael Abraham] So here you are saying that on the legal level there is logic in placing the burden of proof on the claimant. No, in Torah theft it is determined by the laws of ownership, not by logic. It has nothing to do with logic.
[Speaker G] So why is ownership determined that way?
[Rabbi Michael Abraham] Because ownership is factual. Either it is mine or it is not mine. If it is not mine and I am holding it, then I am a thief. No, in cases of doubt — but what is doubt? Again, the doubt says either the money is mine or it is not mine. On the side that it is mine… on the side that it is not mine, if I am holding it, I am a thief. It has nothing to do with the laws of doubt.
[Speaker B] But there is also a concept of doubt. Why is it so much easier for you to say that in civil law and not in law generally?
[Rabbi Michael Abraham] Because that was said only about civil law. In theft you need to check only one thing: is it mine or not mine? The answer is: if it is not mine and I am holding it, that is the prohibition of theft.
[Speaker B] But here you are saying you’re introducing something new in order to resolve…
[Rabbi Michael Abraham] No, this isn’t something new. In monetary law we talk about procedure. Procedure has a logic to placing the burden of proof on the claimant. Right? There’s a logic to it. Now once there is such a logic, that means that on the legal level it’s clear that I’m allowed to keep the money. If legally I’m allowed to keep the money, then there also won’t be a prohibition of theft. That’s the claim. You’ll recognize
[Speaker B] some kind of ownership… no, that’s not connected. Ownership doesn’t…
[Rabbi Michael Abraham] No, that doesn’t belong to the prohibition of theft; it belongs to procedure. In the prohibition of theft there’s no fairness issue. If it’s not yours, you’re a thief. That’s all.
[Speaker B] Yes, I’m just referring to the possibility that something is in doubt as to…
[Rabbi Michael Abraham] No, but the doubt… doubt is not some new state. Doubt is just: I don’t know whether it’s mine or not mine. Fine, I don’t know. But on the possibility that it’s not mine… I’m a thief. That’s all. And that possibility exists. If there is
[Speaker B] a possibility that it isn’t…
[Rabbi Michael Abraham] Where does the prohibition of theft come from? The prohibition of theft is to hold money that isn’t mine. That’s the prohibition of theft.
[Speaker B] But it’s doubtful property…
[Rabbi Michael Abraham] No, no! Regarding property that is doubtful, then on the possibility that it isn’t mine there is a prohibition of theft. So it’s a doubtful prohibition of theft. What difference does it make? It’s the same thing.
[Speaker E] But suppose this enactment, this presumption of ownership over what’s in your possession, is for the sake of social order, because otherwise anyone would come along.
[Rabbi Michael Abraham] Fine,
[Speaker E] it’s
[Rabbi Michael Abraham] the legal logic for placing the burden of proof on the claimant. Consequently, Rabbi Shimon Shkop says that if there is legal logic here, then legally I’m allowed to hold it, so halakhically there also won’t be a prohibition, since the halakhic prohibition comes to back up or reinforce the legal prohibition. That’s his claim. And the prohibition of theft is just an additional layer on top of the legal prohibition. Where the legal prohibition does not exist, there is no need to worry about the halakhic prohibition of theft. That is basically his claim.
[Speaker F] There’s an example, say a worker: I’m a worker, I’m employed by some crook, I’m afraid, I seize some of his property, but you’re saying that it’s doubtful whether it belongs to me or not.
[Rabbi Michael Abraham] No, there’s no doubt at all, it doesn’t belong to you. He owes you money.
[Speaker F] No, he owes me money, so I take it in exchange for the money.
[Rabbi Michael Abraham] Fine, so that’s the question of whether a person may take the law into his own hands; that has nothing to do with doubts. Just the ordinary question of taking the law into your own hands. It’s certain that money is owed to you, there’s no doubt here, but that this object is his is also certain, that it’s his and not yours. The question is whether you’re allowed to take the law into your own hands. That’s another discussion; it has nothing to do with us.
[Speaker F] You’re not allowed to take it.
[Rabbi Michael Abraham] Fine, it’s not connected to us, because you’re taking it as collateral. You’re taking it to make sure he pays you. That doesn’t belong to the law of doubts.
[Speaker H] Seizing it as collateral or actually taking it outright?
[Rabbi Michael Abraham] No, so I’m saying, whether as collateral or actually taking it, all of that has no connection whatsoever to the law of doubts. No connection to the law of doubts. Fine.
[Speaker H] Regarding the doubt, when a person says, “I don’t know whether it’s in my possession or not,” what does the court… what does the religious court determine here? Do they take it away from him and return it, or does it stay in his hands?
[Rabbi Michael Abraham] You’re asking whether “the burden of proof rests on the one seeking to extract from another” is judicial withdrawal or an actual ruling? Those are analytical questions from the later authorities (Acharonim); I don’t think that concerns us. It could be that the court withdraws, it could be that it’s a ruling, but practically the question is why I’m not troubled by a doubtful prohibition of theft. The answer is that if legally I’m allowed to hold it, then halakhically I’m also allowed to hold it. That’s Rabbi Shimon Shkop’s claim. Or another practical implication: for example, Rabbi Shimon Shkop says, as I said earlier, that regarding a gentile there is no prohibition of “you shall not steal,” but it is still forbidden for you to hold the object. Why? A Torah-level prohibition, basically. Why? Because of monetary law. That’s an example of a situation where there is a legal prohibition but there would not be a halakhic prohibition. And the halakhic prohibition cannot be broader than the legal one, but it can be narrower. For example, regarding a gentile there would be a legal prohibition but not a halakhic prohibition. “You shall not steal” does not apply according to some of the medieval authorities (Rishonim), but the legal prohibition still exists. Yes, and for the law of “it shall be yours,” for example, Terumat HaDeshen, the Magen Avraham. Regarding the law of “it shall be yours,” if you stole an etrog from a gentile, is there a problem of “it shall be yours”? There is no theft from a gentile. Right, there isn’t, but the property is the property of…
[Speaker B] What? Between one gentile and another there is also only that.
[Rabbi Michael Abraham] The laws are basically the laws of justice. That’s the claim.
[Speaker B] So that means that the Noahide commandments also apply to a Jew?
[Rabbi Michael Abraham] Correct. In a certain sense that is exactly it. “There is nothing that is forbidden to a Noahide and permitted to a Jew.” That is basically it. No, that’s his claim. Therefore he says that if theft by a gentile from a gentile is forbidden, it cannot be that a Jew would be permitted. So how do those medieval authorities (Rishonim) say that there is no prohibition of stealing from a gentile? He says: no, in truth there is—the gentile’s prohibition exists, not the Jews’ prohibition. Fine. The point is, in short, what I want to say here is that in theft, the problem is not the halakhic problem that you violate “you shall not steal.” The problem is that you are taking money that isn’t yours. The halakhic problem is a consequence of the fact that you are taking money that is not yours, not the cause. Usually people think: no, there is a prohibition of “you shall not steal,” and therefore the other person’s property is off-limits to me. Rabbi Shimon Shkop says no, it’s the other way around. The other person’s property is off-limits to me, and therefore there is a prohibition of “you shall not steal.” The prohibition of “you shall not steal” exists because the other person’s property is off-limits. Why is all this important for our issue? Because I want to argue that the guilt-offering for thefts does not come for the prohibition of “you shall not steal,” but rather for the invasion of someone else’s domain or ownership. Wait a second—so in any case, what about the law of theft? Without the oath it isn’t theft. One second: the claim is that in every act of robbery, in principle—let’s leave the oaths and all that aside for a moment—in principle, in every robbery there are two things. There is the prohibitory dimension of “you shall not steal,” and there is the dimension of invading someone else’s domain or ownership. The guilt-offering comes for the second dimension. That is basically the claim. And therefore the guilt-offering for thefts is added to the list of guilt-offerings that do not come for the prohibition. They come for the invasion of a domain that is not yours, for the devastation you created. Some commentators really do discuss why it comes specifically in a case where you swore. More than that, the later authorities (Acharonim) investigate what exactly the guilt-offering is brought for. Is the guilt-offering brought for the theft within the case, or for the oath within the case? Because the fact is that without an oath, if you stole, you do not bring a guilt-offering. Do they come together? I want to argue that it comes for the theft, but an oath is required because only when you stole by means of an oath does it obligate you—it obligates you to bring a guilt-offering. And if… what didn’t I understand?
[Speaker I] What about money? What’s the difference—leave theft aside—between stealing secretly and robbery.
[Rabbi Michael Abraham] In ordinary robbery, not secret theft, there also is no guilt-offering. Why? I want to argue that when there is the transgression of robbery in ordinary robbery, there is a robbery transgression. When there is a robbery transgression, the robbery transgression is dealt with separately. For that you don’t need to bring a guilt-offering; it is defined in the Torah as a prohibition. Fine—a prohibition of robbery. The prohibition is dealt with in the normal way the prohibition is dealt with. Like with a married woman, what I said. Why don’t you bring a guilt-offering if someone has relations with an ordinary married woman, and not with a designated maidservant? The answer is that there there is the prohibition of a married woman, and it is dealt with using the tools of the prohibition of a married woman; consequently there is no need to resort to a guilt-offering. I bring the guilt-offering where the prohibition itself is not being dealt with—that’s the designated maidservant. In a place where the prohibition is not being dealt with, only the guilt-offering dimension remains; otherwise the guilt-offering is already absorbed into the prohibition. It could be that with “you shall not steal” it’s the same. In ordinary robbery—or secret theft, it doesn’t matter—the guilt-offering, in principle, you ought to bring a guilt-offering. But simply there is double payment for secret theft, or “he shall return what he stole” in robbery, and therefore the prohibition is already being dealt with, and that makes the guilt-offering unnecessary. The guilt-offering is brought where the dimension of the prohibition of “you shall not steal” is absent. But you still have in your possession money that isn’t yours. But it did not come to you in the form of robbery in the sense of “and he robbed the spear,” because then there is the dimension of prohibition here. Rather what is there? Only the result. Your fellow’s money is with you without there having been an illicit act of robbery. The result—that your fellow’s money is with you—exists here without the dimension of prohibition. There you bring a guilt-offering, because the guilt-offering is brought for that, not for the prohibition that exists in the robbery itself. Now what is the situation in which your fellow’s money is with you without there having been an illicit act of robbery? That is when the money is with you and you deny it. You say, “It’s not mine.” What does “deny” mean? Just denying means nothing. If you deny with an oath, you can later retract if it was just denial. If you deny with an oath, that is already something conclusive. Meaning, your denial means that you have essentially taken your fellow’s money, you created the devastation—so for that you bring a guilt-offering. So the guilt-offering is not brought for the transgression in the oath. The oath is the way in which you rob without there being the prohibition of robbery in the sense of “and he robbed the spear,” an act of robbery. Rather, how can you define in a very sharp and unequivocal way that here you are holding your fellow’s money unlawfully in your hands? Right? You created the devastation if you swore. Okay? Because otherwise it came permissibly and then became such. Meaning, an offense of this type is always something that came permissibly and then became such. Meaning, someone deposited something with me for safekeeping. Fine? And now I deny it: what are you talking about, you didn’t deposit anything with me, nothing of the sort ever happened. There was no act of robbery here—the deposit was permitted; he deposited it with me; the money came to me permissibly. So there is no robbery prohibition here like “and he robbed the spear.” So when can I define that I am holding my fellow’s money unlawfully, without the prohibition of “you shall not steal,” but still unlawfully? When I swore and denied it. Once I swore and denied it, I essentially created a situation in which my fellow’s money is with me without my having performed an illicit act of robbery. But the situation is now already defined in a one-directional, unequivocal way as my fellow’s money being with me. I harmed my fellow’s ownership of his money. Therefore the oath is needed. Not because the guilt-offering comes for the oath. The guilt-offering comes for the theft within the matter. The oath merely fixes the situation as one of theft—a situation in which I am holding someone else’s money.
[Speaker B] What? If you returned the principal, you can’t bring the guilt-offering sacrifice. Okay. So what are you saying? That means the guilt-offering sacrifice is connected to the fact that it’s with you—meaning without that it’s not… so it’s not that you are liable for some one-time act that you did and then became obligated in a guilt-offering sacrifice, but rather it’s something ongoing, because you see that you can’t bring it until you’ve actually repaired it, until you’ve returned the principal. It’s not clear.
[Rabbi Michael Abraham] I don’t see why that follows from it. It can fit with what I’m saying, and it could also be that if the law had been that I would bring the guilt-offering even without returning it—fine—I could still say everything I’m saying. What difference does it make? On the contrary, in a certain sense, after I’ve already returned it, I’m no longer holding my fellow’s money by me, so why bring a guilt-offering?
[Speaker B] It’s still by me—sorry—you’re still transgressing, and you would need to bring another guilt-offering. Meaning, your guilt-offering isn’t enough; you continue to transgress after bringing the guilt-offering. If you can bring it twice.
[Rabbi Michael Abraham] You’re saying that all his days he stands under the obligation to rise and return, like in the case of rape and seduction.
[Speaker B] A guilt-offering means he is guilty, guilty.
[Rabbi Michael Abraham] Okay, maybe. Fine, so with that I’ve basically finished the three basic sin-guilt-offerings: the guilt-offering of the designated maidservant, the guilt-offering for misuse of sanctified property, and the guilt-offering for thefts. In all three we saw that basically the guilt-offering is brought for a result—for the devastation of a domain, for the breach of the separation between domains. Yes, I erased a fence that was supposed to separate between domains, I created some sort of wasteland in the world, and for that I bring a guilt-offering. Okay, that’s what you see in these three sin-guilt-offerings. If so, then now it’s also not so hard to understand why there are also purity guilt-offerings. Yes, there are guilt-offerings of a Nazirite and of a leper. There is no sin there; it is not brought for a sin. Sometimes there is a sin, but it is not brought for the sin. It comes as part of the purification process. And again, why? Because even in the context of sin-guilt-offerings it is not brought for the sin, but rather it comes to repair a damaged state. Right? You created devastation, you destroyed some separation that existed between domains, and the guilt-offering comes to restore the damaged state, to repair the damaged state. That is exactly what the purity guilt-offerings do. The purity guilt-offerings of the Nazirite and the leper basically repair a damaged state; they return you, purify you back again. A Nazirite who became impure, or a leper—some problematic state was created here, and the guilt-offering repairs it. Right? Therefore, in fact, even the sin-guilt-offerings do not come for a sin. So it is no wonder that there are guilt-offerings of sin and guilt-offerings of purity, because even the sin-guilt-offerings are really guilt-offerings of purification. The sin-guilt-offerings simply come to repair a damaged state, unlike a sin-offering, which comes to atone for a sin that you committed. Therefore a sin-offering, apparently, does not really belong in the case of the Nazirite and the leper—a sin-offering for purification. There are also contexts of sin-offerings there. But with the guilt-offering, even when it is brought for a sin, it is not really brought to atone; it comes to repair. Therefore in the purity guilt-offerings too it is exactly the same thing: there too they come to repair, to purify something that became impure. Now I want to get to the provisional guilt-offering. So we spoke about the three sin-guilt-offerings. We said there are three categories of guilt-offering. There are the sin-guilt-offerings: the guilt-offering of the designated maidservant, the guilt-offering for misuse of sanctified property, and the guilt-offering for thefts. There are the purity guilt-offerings—the purification guilt-offering of the Nazirite and the leper. And the third category is the provisional guilt-offering. So we spoke about the first two categories. Now I move to the third category: the provisional guilt-offering. And when you look at the provisional guilt-offering, it too is basically a guilt-offering for sin. Right? You committed a doubtful sin. Something that was doubtfully a matter whose intentional violation incurs karet and whose unwitting violation incurs a sin-offering, and now you transgressed it in doubt. You ate doubtful forbidden fat, or there’s doubt whether it was a married woman, or all kinds of things of that type, doubt regarding the Sabbath, or things of that kind—you bring a provisional guilt-offering. Okay? If it was certain, you would be liable for a sin-offering; if it is doubtful, you are liable for a guilt-offering, and that is the provisional guilt-offering. Now what is this provisional guilt-offering? So I want to argue that here too you see the same principle. Why indeed, in a doubtful prohibition, do you bring a guilt-offering, whereas for a definite unwitting transgression it is a sin-offering, and for an intentional one it is karet and stoning or death? So I want to shed a little light on states of doubt. “Appear, appear from Your holy mountain.” Maimonides in chapter 9 of the laws of impurity from a corpse says this: “It is well known that all these impurities and the like that are due to doubt are by rabbinic law, and no one is impure by Torah law except one who became definitely impure. But all doubts, whether in impurities, or forbidden foods, or forbidden sexual relations and Sabbaths, have no force except by the words of the sages. Even so, something whose intentional violation incurs karet—its doubtful case is forbidden by Torah law, for one who does it is liable for a provisional guilt-offering, as we explained in the laws of forbidden relations and in several places.” The gloss of the Raavad: “It is well known that all these impurities, etc.—Abraham said: this is a great error, for they said in many places: Torah-level doubt is ruled stringently and rabbinic-level doubt leniently, and this is a Torah-level doubt. Rather, he should have said that this is a double doubt, and even in Torah law a double doubt is ruled leniently.” That is the well-known dispute, the well-known dispute among the medieval authorities (Rishonim). Maimonides’ view is that a Torah-level doubt is lenient by Torah law. By rabbinic law they require me to be stringent. The difference between a Torah-level doubt and a… We know that Torah-level doubt is ruled stringently, rabbinic-level doubt leniently, right? Is this very rule itself Torah law or rabbinic law? Maimonides says it is rabbinic. Meaning, by Torah law, an outright Torah-level doubt is lenient, just like a rabbinic-level doubt. The rabbis are the ones who require stringency in a Torah-level doubt. Fine? And in a rabbinic-level doubt they leave it as lenient. The view of other medieval authorities (Rishonim), the Ran, the Rashba, is that “Torah-level doubt is ruled stringently” is itself a Torah law rule, and such is also the Raavad’s view here. That is what he disputes with Maimonides. Fine? Now the big question that arises regarding Maimonides is that if indeed a Torah-level doubt is lenient by Torah law and only by rabbinic law do they require stringency, then how do you bring a provisional guilt-offering for it? After all, when you transgressed a doubtful prohibition, you bring a provisional guilt-offering. Now if there is no prohibition in going ahead with the doubt—with the doubtful prohibition—then this guilt-offering is just ordinary non-sacred meat slaughtered in the Temple courtyard. There is no transgression, so for what are you bringing the provisional guilt-offering?
[Speaker B] That’s what Maimonides himself says.
[Rabbi Michael Abraham] Wait, that’s the question on Maimonides. Fine? The Shema’ata, in Shema’ata 1, brings this in the name of the Pnei Yehoshua and others. What do they say? They say what is added here in parentheses. “Even so”—do you see? Here in Maimonides in parentheses: “Even so, something whose intentional violation incurs karet—its doubtful case is forbidden by Torah law, for one who does it is liable for a provisional guilt-offering.” The rule regarding a provisional guilt-offering is that a provisional guilt-offering is brought only for matters whose intentional violation incurs karet and whose unwitting violation incurs a sin-offering; for their doubtful case one brings a provisional guilt-offering. But for transgressions—if someone ate doubtful pork, he does not bring a provisional guilt-offering. Why? Because definite pork is just a prohibition; it is not something that involves karet and a sin-offering. It is a simple prohibition. A doubt concerning a simple prohibition has no provisional guilt-offering. Only a doubt concerning something whose intentional violation incurs karet and whose unwitting violation incurs a sin-offering. This version in Maimonides says: all that Maimonides says—that a Torah-level doubt is lenient by Torah law—is only about things whose intentional violation does not incur karet and whose unwitting violation does not incur a sin-offering. But these matters are obviously stringent even in doubt by Torah law, because otherwise how could one bring a provisional guilt-offering for them? Complete nonsense, of course. First of all, in Maimonides it is complete nonsense. Afterward I’ll also explain why you don’t even need… the objection is not difficult. Why? Because look here at what I underlined. What is it? “Whether in forbidden foods or in forbidden sexual relations and Sabbaths.” Forbidden sexual relations and Sabbaths are matters whose intentional violation incurs karet. If Maimonides means to say that a Torah-level doubt is lenient but not in matters whose intentional violation incurs karet, the examples he gives are forbidden sexual relations and Sabbaths. Forbidden sexual relations and Sabbaths incur karet intentionally. So how can you suddenly add here, “Even so, something whose intentional violation incurs karet—its doubtful case is forbidden by Torah law”? Forbidden sexual relations and Sabbaths were the very examples he gave for cases where the doubtful case is rabbinic. Not for nothing did Rabbenu Tam institute a rule that we do not emend versions in the body of the text. You see, that was Rabbenu Tam’s enactment. From Rabbenu Tam onward, all textual emendations—like the Bach—use a symbol and on the side you write your version; you do not change the body of the thing itself. Why? Because don’t load your nonsense onto Maimonides—put it on the side. Then those who come after you will explain to you why you were wrong, or not; sometimes you aren’t wrong, and maybe you are. Don’t do irreversible things. Don’t emend the text itself, because afterward we’ve lost the original version because you had some difficulty. What happened here is exactly that. People added a foolish version in Maimonides because it bothered them: how can it be that one is liable for a provisional guilt-offering for this? In my opinion—I haven’t checked the historical chain—these parentheses got in because someone wrote a note on the side. Someone noted on the side about Maimonides: even so, clearly in something whose intentional violation incurs karet this can’t be, because otherwise how do you bring a provisional guilt-offering? It got inserted as part of Maimonides’ wording; it was only someone’s note. It also isn’t typical of Maimonides. Maimonides says therefore how can this be, after all how do you bring a provisional guilt-offering for something doubtful? It’s obvious that this is an objection and an answer. After all, there is a problem here—how are you liable for a provisional guilt-offering? Therefore it is clear that Maimonides didn’t say this about something whose intentional violation incurs karet or whose certainty incurs karet, right? That is not Maimonides’ style. And since the objection is not difficult, there is no need to reach the answer, and certainly that is not Maimonides’ intent. Because Maimonides himself also said that in forbidden sexual relations and Sabbaths the doubtful case is lenient by Torah law. So why a provisional guilt-offering? By the way, the Shema’ata does emend it, and the Pnei Yehoshua, I think—in the name of the Pnei Yehoshua—says it does not deal with something whose intentional violation incurs karet. Forbidden sexual relations and Sabbaths are things whose intentional violation incurs karet. The exception is for a case where there is a fixed prohibited status. There is another rule in the laws of the provisional guilt-offering: a provisional guilt-offering is brought only for a doubt in a case of fixed prohibition, what is called one piece out of two pieces. What does that mean? If I ate a piece that is doubtfully forbidden fat or permissible fat, I do not bring a provisional guilt-offering. But if there are two pieces here, one forbidden fat and one permissible fat, and I don’t know which is which, and I ate one of them—I don’t know whether I ate the forbidden fat or the permissible fat—for that I bring a provisional guilt-offering. That is called a doubt in a case of fixed prohibition, sometimes they call it a presumption of prohibition, fixed prohibition. What does that mean? That there is definitely forbidden fat here, I just don’t know whether I ate it. But with one piece, when I don’t know whether it is forbidden fat or permissible fat, it isn’t even clear that forbidden fat was in the picture. I don’t know if it’s forbidden fat or permissible fat. Here it is clear that there is forbidden fat, I’m just not sure I ate it. Only for the second kind does one bring a provisional guilt-offering. An interesting question: if in both cases it’s fifty-fifty, then why is there a difference? Statistically, in both cases the chance is fifty-fifty. So contrary to what people mistakenly think, no, in both cases the chance is not fifty-fifty—but that’s a topic I perhaps discuss in other lectures, not in the institute lectures. I have another series on doubts, on doubt and probability. In any case, the Shema’ata and the Pnei Yehoshua say that what Maimonides writes—that a Torah-level doubt is lenient—does not refer to a case of fixed prohibition. In doubts of fixed prohibition, the doubt has to be stringent, because otherwise how can you bring a provisional guilt-offering for it? That already doesn’t contradict Maimonides’ wording. Maimonides says Sabbaths and forbidden sexual relations, but he is not speaking specifically about fixed prohibition versus not fixed prohibition. You could say that all he said concerns cases that are not fixed prohibition, only that the main point is missing from the text. I would expect Maimonides to say: yes, but in a place of fixed prohibition its doubtful case is stringent. Here he says it as a sweeping rule: every Torah-level doubt is lenient. Say: provided it is not a case of fixed prohibition. Provisional guilt-offering. He writes nothing—he writes that in a case of fixed prohibition you bring a provisional guilt-offering, and in a case without fixed prohibition you do not. He doesn’t discuss there where there is a prohibition and where there isn’t. Yes, yes, that’s in the laws of sacrifices, in the laws of unwitting sins and things like that. He doesn’t discuss there where there is a prohibition and where there isn’t. When he discusses prohibitions he says a doubtful prohibition is lenient, period. Nowhere does he distinguish between fixed and not fixed prohibition. Nowhere. Therefore it is clear that even the Pnei Yehoshua’s and the Shema’ata’s version—although here this version before us can fit in—this one is complete nonsense, fine. It says forbidden sexual relations and Sabbaths. Somebody inserted it; no doubt in the Frankel edition they comment on it, I don’t know. It has no basis. The Pnei Yehoshua and the Shema’ata add a version that is not contradicted by Maimonides’ wording here, but it is still very unlikely because Maimonides says this nowhere. He says a Torah-level doubt is lenient, period. He does not say unless it is a case of fixed prohibition or not fixed prohibition. Therefore that too. What necessity drove them to adopt both this version and the Shema’ata and the Pnei Yehoshua—what necessity led them to read it this way? How can you bring a provisional guilt-offering if there is no transgression? And we already know that this is not difficult, right? Obviously, guilt-offerings never come for a transgression. You don’t need a transgression at all in order to incur a guilt-offering. In the designated maidservant there is no transgression, yet you bring a guilt-offering. In misuse of sanctified property there is a transgression, but the guilt-offering is not brought for the transgression. In theft sometimes there is a transgression and sometimes not; the guilt-offering is not brought for the transgression. In a doubtful prohibition there is no transgression, and that does not prevent liability for a guilt-offering. A guilt-offering does not need a transgression. Liability for a guilt-offering is invasion of a domain that is not yours. That is the liability of the guilt-offering. Now, what is happening here? Why—this is what I think you intended to ask—what is happening here with doubts? So I’ll explain what is happening. Rabbi Shimon Shkop, in Gate 1, the Gate of Doubts, in Sha’arei Yosher, speaks there about the concept of doubt, a doubtful prohibition. What is the meaning of the idea that a doubtful prohibition is ruled stringently? Two possibilities. One possibility: it is simply a concern lest you end up touching a prohibition. You have doubtful pork—maybe there is pork here, right? You have to be careful. Therefore, don’t enter that doubt. According to this view, on the side where I actually went ahead—I ate that piece—and in the end it turned out it wasn’t pork at all, then nothing happened. All they are telling me is just: pay attention, you could get into trouble. Meaning, if it turns out to be pork, you won’t be able to say I was coerced, because they warned you: there is doubtful pork here. But if in the end it turns out it wasn’t pork, nothing happened. You took a risk and gained; you got away with it. That is one possibility. Second possibility: no, there is a prohibition on entering the house of doubt. Once something is defined as doubtful, you are forbidden to enter there. The practical difference: I entered, I ate that piece, it turned out it wasn’t pork, it was kosher meat—I still violated a prohibition. Why? Because the prohibition is on entering the house of doubt. It isn’t a warning lest you hit pork; the prohibition is entering the house of doubt itself. Or in other words, according to that assumption, with a doubtful prohibition the obligation to be stringent is because there is a prohibition on entering that zone, the house of doubt. Therefore if you entered, you bring a guilt-offering. You bring a guilt-offering not because of the— not for the pork. If it later turns out that you ate pork, you bring a sin-offering for that—well, there is no sin-offering for pork, but if it were something for which there is a sin-offering, you would bring a sin-offering. As long as it has not become clear that there was an actual prohibition here—just a second—then what is the prohibition you violated? That you entered a territory, an area, that is outside your boundary. The house of doubt—like a vow, where there is a binding prohibition. You entered a territory, an area, that you were not supposed to enter, and for that you bring a guilt-offering. The provisional guilt-offering is brought for that, not for the prohibition involved in the substance itself. And the definition of fixed prohibition is simply that once there is forbidden fat in the picture, they put a fence around these two pieces and say: entry here is forbidden. If there is no forbidden fat—there is one piece—look, it could turn out that this piece is forbidden fat and it could turn out not. So there is reason to be careful, but there is no territory here that you are forbidden to enter; it is simply the prohibition of forbidden fat, that’s all. On the side where you transgressed, you did not transgress a prohibition of doubt; you transgressed the prohibition of forbidden fat. And on the side where you did not transgress, then you did not transgress anything. But if there are two pieces here, one forbidden fat and one permissible fat, then even if you ate the permissible fat you transgressed a prohibition. What prohibition? Not the prohibition of forbidden fat—the prohibition of doubts. It is an independent prohibition. Just as they discuss half a measure—whether half a measure is an independent prohibition or really an extension of the prohibition of pork or the original prohibition—so here too. Therefore there is a guilt-offering here. That is what exists in doubt and not in certainty. When you eat forbidden fat, you did not invade a domain that is not yours; you transgressed the prohibition of forbidden fat. So for that you are punished as one is punished for the prohibition of forbidden fat. But if there is doubtful forbidden fat here—at least in a case of fixed prohibition—it is not about the forbidden fat along the way, but about what? About the very fact that you entered a situation called the house of doubt. Essentially, that situation was supposed to be off-limits to you. Once you invaded it, you broke the fence between you and the house of doubt—just like breaking the fence of the binding prohibition in a vow, or of the relationship, like “he committed a trespass against the woman,” in the designated maidservant, or things of that sort, or theft. All these things are always entry into a territory that you are forbidden to enter.
[Speaker B] So that’s what bothered me about all these emendations—that the main point is missing from the text, namely that two is the main point missing from the text. He says all doubts have force only by rabbinic law, but if the doubt itself is prohibited by Torah law, that’s something…
[Rabbi Michael Abraham] No, it isn’t prohibited by Torah law. This is not a Torah-level prohibition. That’s exactly the point. There is no Torah-level prohibition; the prohibition is rabbinic. Even in a case of fixed prohibition, the prohibition is rabbinic. Even in a matter whose doubtful case corresponds to something whose certain intentional violation incurs karet. But what is the provisional guilt-offering for?
[Speaker B] The provisional guilt-offering is for the fact that you entered outside the boundary.
[Rabbi Michael Abraham] There is no prohibition.
[Speaker B] Also
[Rabbi Michael Abraham] I’m saying, the distinction is not a distinction in the laws of prohibition. The prohibition is rabbinic in all areas. Whether its intentional violation incurs karet or not, whether it is fixed prohibition or not fixed prohibition. No, the rabbinic prohibition reflects the fact that there is a territory here that you should not enter. But that fact is a fact that exists regardless of the prohibition. Why do you enter a rabbinic prohibition? Because it isn’t right. No, it isn’t right to enter there. It is devastation to enter there. You are doing something problematic. The problematic nature is the reason for the guilt-offering, not the prohibition. Sometimes there is a prohibition that reflects the problematic nature, but even if there is no prohibition that reflects it, the problematic nature remains in place, like the laws of justice. In monetary law, what is it—is it a prohibition? No, it’s a problematic state. It’s not a prohibition. Often there is a Torah-level prohibition of “you shall not steal” that reflects the existence of the problematic nature. But the guilt-offering is brought for the problematic character of your act, not for the prohibition. And that is exactly the point. Therefore Maimonides is right; nothing is missing from the text. From a halakhic standpoint, all of this is rabbinic prohibition. There is no other prohibition here. The question is
[Speaker B] that it’s a doubt, and it’s as if we’re talking about full Torah law, and the actual ruling is that it’s permitted, meaning… Torah law.
[Rabbi Michael Abraham] Permitted, but with a taint. Permitted, but problematic.
[Speaker B] No
[Rabbi Michael Abraham] No, it is all permitted by Torah law, including fixed prohibition, including everything. There is only problematicness. For that problematicness you bring a guilt-offering. So another person may come and tell you: this animal is permitted, they slaughtered it… permitted—what does “permitted” mean?
[Speaker B] There is no halakhic prohibition. There is a problematic aspect here, but no halakhic prohibition.
[Rabbi Michael Abraham] What is the problem?
[Speaker B] He goes there too casually.
[Rabbi Michael Abraham] The religious court is responsible for telling you what the halakhic prohibitions are.
[Speaker B] You’re asking what the halakhic prohibition is—there is no halakhic prohibition. If they ask whether there is a problematic aspect, obviously there is. And he brought a guilt-offering, and good. There is no halakhic prohibition, but there is a problematic aspect. “You shall be holy”—there is no halakhic prohibition, but there is a problematic aspect. What’s the issue? If a person did it without weighing it… no, no, with weighing it. With everything. With the doubt. With weighing it, after all it is permitted. There is always some sort of doubt.
[Rabbi Michael Abraham] Halakhically permitted, but there is still a problematic aspect. That is exactly the point. No, no, not gambling. I’m going according to the view that it is not gambling. If it is gambling, then it is something entirely different. Then there’s nothing to discuss. If it is gambling, then the whole point is just that maybe there is forbidden fat here. But I’m not speaking about the gambling conception. I’m speaking about a conception in which there is a house of doubt here. Even if you did not run into forbidden fat, you still committed a wrong. What wrong? You still stumbled into the problematic thing; you didn’t transgress a prohibition. What is the problematic thing? Entering the house of doubt. Even if you ate permissible fat…
[Speaker F] Not liable, but he did something problematic…
[Rabbi Michael Abraham] He did something problematic.
[Speaker F] And here all the responsibility is on the person.
[Speaker B] There are doubts that are completely permitted… this is only in fixed prohibition.
[Rabbi Michael Abraham] No, right, there are certain doubts where there also is no provisional guilt-offering. By the way, it is not at all clear that in those doubts there is no problematic aspect whatsoever. A problematic aspect that doesn’t obligate a guilt-offering. But it could be that to some degree the problematic aspect exists there too. What is the proof? I’ll give you proof. For example, a rabbinic-level doubt is lenient according to all views. Certainly no provisional guilt-offering. A rabbinic-level doubt is permitted, right? Now, are you familiar with the rule of something that will become permitted later? The meaning of something that will become permitted later is that in doubts or mixtures there is a rule of something that will become permitted later. What does that mean? Say doubtful set-aside property on the Sabbath. Fine? So with doubtful set-aside property there is room to say: they didn’t permit it to you, even though it is a rabbinic-level doubt—wait until after the Sabbath and you can use it freely. Why do you need to use it on the Sabbath? Instead of eating it in prohibition, wait until after the Sabbath and eat it permissibly. That is the accepted approach. The Ran tries to suggest another explanation, but the accepted approach regarding something that will become permitted later means: instead of needing it in prohibition, wait and need it permissibly. There is no reason to permit you a doubtful rabbinic prohibition if by waiting one day you can use it without needing that permission. Right? Now, if a doubtful prohibition is something fully permitted, then there is no logic in this. They didn’t permit you anything—doubtful prohibition was never prohibited. What’s the problem? Why wait until after the Sabbath? Is there some problem in doubtful prohibition? Only if you say that in doubtful prohibition there is some kind of issue. Usually they say: fine, there’s an issue, but you can be lenient. Where there is no need, wait until after the Sabbath; then they don’t permit it to you. If the rule of something that will become permitted later really exists, that means—you can argue about it a bit, but the simple view is—that there is a problematic aspect even in a rabbinic-level doubt. But usually they say: they don’t want to burden you, so in such a small problem you can be lenient. If it doesn’t burden you, you can wait until after the Sabbath and use it, and so indeed they do not permit you the rabbinic-level doubt. So you see that the leniency of a rabbinic-level doubt is also not perfectly clean. Say, for example, if I ask you a question: if something is a rabbinic-level doubt, is there value in being stringent? Well, still—you’re not obligated. Is there value? According to the law of something that will become permitted later, apparently yes. There is reason to distance oneself even from a rabbinic prohibition. You’re not obligated; if you didn’t do it no one will come complaining. But it is an elevated practice. In a case where you can avoid it easily, without paying a price, then there are complaints even there. There it is a demand. Don’t permit yourself a rabbinic-level doubt; wait until after the Sabbath and use it freely. The same thing in mixtures. In mixtures too there is a law of something that will become permitted later, and that applies even in Torah law. Rabbinic-level doubt is in rabbinic law, but in mixtures it is also in Torah law. A mixture, say, is permitted at sixty-to-one or whatever every mixture according to its rules. Okay? But if there is a situation where I can wait a few days and it will become completely permitted to me, then even if it is one in sixty they did not permit it. Wait until it is permitted, and don’t rely on the permission of nullification in a mixture. What does that mean? That in a mixture which is supposedly permitted at sixty-to-one, there is no problem? No. It isn’t really permitted. They permitted it to you because they don’t want to burden you; there is no halakhic prohibition. But if there is a way for you to use this thing without relying on nullification, then there is no nullification. What is the idea behind this? Think, for example, about some prohibited thing—I don’t know—falling into a dish, some set-aside food on the Sabbath into a cooked dish. Fine? It is nullified at sixty-to-one, it doesn’t impart taste, everything is fine. But they tell me: look, if you wait until after the Sabbath, then there is no prohibition of set-aside property, and you’ll be able to eat it even without relying on nullification, right? So don’t use it. He says: and if it wouldn’t be permitted after the Sabbath, then use it; there is a mixture. What’s the idea? The idea is: what is the alternative? If they had forbidden it to me, what would I have had to do? How could I avoid the prohibition? Not eat the entire dish. Do you understand? I lose sixty liters in order not to eat one liter of prohibited food. Look, that’s a high price. We do not require a person to throw sixty liters of cooked food into the garbage in order not to stumble on one liter of prohibited food, right? That is not a price—yes, that is not a price demanded of a person. It’s too high a price. Therefore they say: fine, so we permit it to you. “We permit it to you” does not mean that eating a liter of prohibited food is not problematic. Eating a liter of prohibited food is problematic. Fine, but at that cost we do not demand that of you. But if you can wait until after the Sabbath and eat everything fine without stumbling, then yes, we do demand it of you—so don’t eat. What do you see from this? You see that the idea of something that will become permitted later basically says that even when something is halakhically permitted, that does not mean it has no problem in it. It only means that sometimes, despite there being a problem, we do not halakhically forbid it to you. We do not demand such a demand of you. In a case where that is not too burdensome a demand, we will demand it, because there is still a problematic aspect. But we waive it for you. The same thing I’m saying here. In doubts, Maimonides says the prohibition is rabbinic. There is no Torah-level prohibition in any doubts, including fixed prohibition, including something whose intentional violation incurs karet—everything, from a halakhic standpoint. But if you ask me whether there is a problematic aspect—of course there is a problematic aspect. Therefore if you did it, then you did not transgress a Torah-level halakhic prohibition. Rabbinically you did, but not by Torah law. But there is still a provisional guilt-offering, because there is a problematic aspect here. The problematic aspect is Torah-level. There is no Torah-level prohibition here; the problematic aspect is Torah-level. Problematicness is a fact—what do you mean, Torah-level? It is a reality. There was a problematic thing here. Halakhically we do not require you to guard against such problematicness except rabbinically, but not by Torah law. Fine? That is the point I want to claim.
[Speaker B] Provisional guilt-offering there—very nice. With the provisional guilt-offering they obligate him only if it is really doubtful whether you transgressed some prohibition. Meaning, if you did labor at twilight between Sabbath and Yom Kippur, then you committed a doubtful transgression—you are not liable for a sin-offering because it is doubtful whether you transgressed this or that, and you don’t know which one you transgressed, so you’re not liable—but a provisional guilt-offering he does not give. He doesn’t, because it’s like not a case of fixed prohibition.
[Rabbi Michael Abraham] It’s like not a case of fixed prohibition, in my opinion; it’s the same idea. Because on both sides, basically, you transgressed a prohibition. It’s more like—it’s very similar to the distinction between fixed prohibition and not fixed prohibition. In the case of not fixed prohibition, you basically say: it’s not even certain that there is a prohibited side here; I just don’t know. In fixed prohibition there is clearly a prohibited side here, only it isn’t certain that you transgressed it. It seems to me a similar distinction.
[Speaker B] I asked why here suddenly, because it isn’t doubtful that there is another additional prohibition, you still enter two houses of prohibition.
[Rabbi Michael Abraham] Fine, but that’s exactly like—it’s similar, not exactly
[Speaker B] but it’s similar to the difference between fixed and not fixed prohibition.
[Rabbi Michael Abraham] You would not bring a provisional guilt-offering because there too it is not a case of fixed prohibition.
[Speaker B] It’s closer to fixed prohibition.
[Rabbi Michael Abraham] That too is not fixed prohibition—doubt between one day
[Speaker B] and the next day, so
[Rabbi Michael Abraham] This needs to be understood. Well, I don’t know, you have to look there at what exactly the definition is, because on the face of it this is not a fixed prohibition. No, that’s the Magen Avraham, who distinguishes between bringing the day in and taking the day out; that’s something else entirely, it’s really one of those astonishing midrashim. But let’s get back to our issue for a moment. What I basically want to argue is that in a provisional guilt-offering as well, you see that the offering does not come to atone for a transgression. You don’t need a transgression for that, unlike a sin-offering. A sin-offering addresses the problem that you sinned, because you committed a transgression. A guilt-offering comes to repair the devastation you created, the reality itself. Therefore you don’t need there to have been any prohibition at all in order to become liable for a guilt-offering. So all these difficulties raised against Maimonides—how can you say that with a rabbinic doubt and a Torah-level doubt we rule leniently if one brings a provisional guilt-offering—the assumption behind all those questions is that it can’t be that you bring a provisional guilt-offering if there was no prohibition in the background. That’s not true. A provisional guilt-offering does not need to be for a prohibition; even if there is no prohibition, you still bring a provisional guilt-offering. Now look at the implications. For example, Tosafot in tractate Keritot 17 says that even in a double doubt one brings a provisional guilt-offering. In a case involving something whose intentional violation incurs karet, even in a double doubt you bring a provisional guilt-offering, not only in a single doubt. So everyone is astonished by this, because according to all opinions there isn’t even a rabbinic prohibition in a double doubt. A double doubt regarding a Torah-level prohibition is completely permitted; there isn’t even a rabbinic prohibition. According to Maimonides, a Torah-level doubt is treated stringently only rabbinically—there is a rabbinic prohibition, not a Torah-level prohibition. In a double doubt, even those who disagree with Maimonides say it is permitted, not just as to rabbinic prohibition. So how can you bring a provisional guilt-offering? So some want to argue—the Lechem Mishneh, the Sha’ar HaMelekh, and other later authorities—that according to this Tosafot it follows that the rule that a double doubt is permitted does not apply in cases where intentional violation incurs karet or where the prohibition was fixed in place, because there too even in a double doubt there is a prohibition; otherwise, how could you bring a provisional guilt-offering? The Shema’tata says this regarding a fixed prohibition in a single doubt: that according to Maimonides, in a single doubt we go leniently on the rabbinic level, but if the prohibition was fixed in place, that is Torah-level—because otherwise, how could there be a provisional guilt-offering? Here I’m talking about Tosafot, not about Maimonides. Tosafot disagrees with Maimonides in principle: a doubtful prohibition is treated stringently on the Torah level. But in a double doubt, Tosafot too agrees that it is permitted, even from the standpoint of rabbinic prohibition—so how is there a provisional guilt-offering? So everyone infers from Tosafot—and this is a very major novelty—that the rule of treating doubt stringently and double doubt leniently was not said about things whose intentional violation incurs karet, or where the prohibition was fixed in place, because otherwise how could one bring a provisional guilt-offering? Again, not true. That’s the whole idea: a guilt-offering doesn’t require a prohibition in order to be brought. So what do I care whether it’s a double doubt? As long as there is some possibility that you entered problematic territory, you bring a guilt-offering—not because there is a prohibition. There is no prohibition at all. You don’t need a prohibition in order to be liable for a guilt-offering. And all this squeezing and forced interpretation in Tosafot has no source whatsoever. On the contrary, everywhere you see that a double doubt is permitted in every kind of prohibition you can think of. A double doubt is permitted; only a single doubt is prohibited. So they force Tosafot because of this difficulty, but there is no difficulty; there is no need to force the text. A guilt-offering does not require a prohibition. The same thing with those who want to argue—the Sha’ar HaMelekh cites this in the name of the Pri Chadash—that in the case of a fixed prohibition, one must be stringent even in a double doubt, against the Pri Chadash who tends to be lenient, right? They claim this is a dispute between Maimonides and Tosafot. There is no dispute and nothing of the sort. The Tosafot that says a double doubt requires bringing a provisional guilt-offering does not mean it says one must be stringent in a double doubt. There is no prohibition—but you still bring a guilt-offering. Now, just to conclude, I want to show you an interesting anecdote. In the book of Genesis there are three passages of “Please say that you are my sister,” right? There are two passages there with Abraham our forefather and one with Isaac—three times this issue appears. The first is in the portion of Lech Lecha, here. Yes: “And it came to pass, when he drew near to enter Egypt…”
[Speaker F] “Please say that you are my sister.”
[Rabbi Michael Abraham] “And he said to Sarai his wife: Behold now, I know that you are a woman beautiful in appearance. And it will be, when the Egyptians see you, they will say, ‘This is his wife,’ and they will kill me and let you live. Please say that you are my sister, so that it may go well with me because of you, and my life will be spared on your account. And it came to pass, when Abram entered Egypt, that the Egyptians saw that the woman was very beautiful. And Pharaoh’s princes saw her and praised her to Pharaoh, and the woman was taken into Pharaoh’s house. And he treated Abram well because of her, and he had sheep and cattle and donkeys and male servants and female servants and she-donkeys and camels. And 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 that you have done to me? Why did you not tell me that she is your wife? Why did you say, “She is my sister,” so that I took her to be my wife? Now then, here is your wife; take her and go.’ And Pharaoh commanded men concerning him, and they sent him away with his wife and all that he had.” That’s the first passage. All right? The second passage is in the portion of Vayera, again Abraham with Avimelekh, yes. I won’t read the whole thing; look there: “And Abraham journeyed…” and so on, “and sojourned in Gerar. And Abraham said of Sarah his wife, ‘She is my sister.’” By now they shorten it; we already know the procedure here. “And Avimelekh king of Gerar sent and took Sarah. But God came to Avimelekh in a dream at night and said to him, ‘Behold, you are a dead man because of the woman you have taken, for she is a married woman.’ Now Avimelekh had not come near her, and he said, ‘Lord, will You kill even a righteous nation? Did he not say to me, “She is my sister”? And she too said, “He is my brother.” In the innocence of my heart and the cleanness of my hands I did this.’ And God said to him in the dream, ‘I too know that in the innocence of your heart you did this.’” He mentions and says, “in the innocence of my heart and the cleanness of my hands,” and the Holy One, blessed be He, answers him, “in the innocence of your heart”—but not “the cleanness of your hands.” There’s a difference there. Never mind. In any case: “If you do not return her, know that you shall surely die, you and all that are yours,” and so on. Now look: he comes to Avimelekh—“And Avimelekh called Abraham and said to him, ‘What have you done to us? And how have I sinned against you, that you brought upon me and my kingdom a great sin?’” Sin, right? A sin-offering. What about here? In the third case: “And Isaac dwelt in Gerar. And the men of the place asked him about his wife, and he said, ‘She is my sister.’” And what does it say? “Almost one of the people lay with your wife, and you would have brought guilt upon us.” Before it was “a great sin,” and now it is “guilt.” What’s the difference? I’ll tell you what the difference is. In the third case, Avimelekh says to Isaac that he brought guilt upon him. What does that mean, brought guilt upon him? He brought about a problematic result. Right? He brought about a problematic result. Why is only the result problematic? There is no sin here. Why? “The men of the place asked him about his wife, and he said, ‘She is my sister.’” What do you want? They did everything they could. They asked, who is this lady? He said, my sister. So then he married her. What’s the problem? He made the necessary inquiries and married her; everything is fine. In effect, Avimelekh was not guilty at all. He did everything he needed to do. Therefore, in the end, if he had stumbled, what would have happened? What would have happened? There would not have been a sin-offering here. The first passage is an intentional transgression. The second passage is an unintentional transgression. The third passage is a transgression under duress. In a transgression under duress there is no sin-offering, no sin. What is there? Guilt. The result could have happened—that is, he could have slept with a married woman. Sleeping with a married woman, from the standpoint of the result, happened; but there is no transgression here, no sin, because he did everything he was supposed to do. But the result would have occurred. Guilt would have occurred. So that is what he means by guilt. And here the whole description of the passage is exactly this: they ask him about his wife and he says, “She is my sister.” Then after some days passed there, Avimelekh looked through the window and saw Isaac being intimate with Rebecca, and immediately he backed off. He suddenly realized he had made a mistake. You see, there is nothing coercive here at all. He was completely clean. Here there really was complete innocence and cleanness of hands. He was completely all right. The moment he saw that there was some problem, he immediately backed off and returned her at once. He recoiled immediately. So what does he claim against Isaac? “You brought guilt upon me.” What is guilt? There is no sin here at all; I’m not guilty of anything. But the result almost happened; I almost slept with a married woman. That is guilt. Guilt is when the result happens independent of any transgression; there was no transgression here at all. This was under duress. By contrast, look what happens in the previous passage. In the previous passage it says, “And Abraham said of his wife, ‘She is my sister.’” They didn’t ask him anything. They didn’t bother to ask. So they are not clean; this is not cleanness of hands, not “the innocence of my heart and the cleanness of my hands.” The third case is innocence of heart and cleanness of hands. Here he said “my sister” because he was trying to protect himself, but they didn’t bother to ask. They could have thought: why is he suddenly jumping in to say “my sister”? Maybe he’s afraid of them. Don’t you have any reason to investigate? You are not entirely clean. It’s not intentional—he said “my sister.” Fine, so not intentional. Unintentional. Therefore it says here: “You brought upon me and my kingdom a great sin.” Yes—“How have I sinned against you?” Here the basic word is “sin,” because there is unintentional wrongdoing here. You did not make inquiries. In the third passage they begin by asking about his wife, then he says “my sister,” then they marry—everything is clean. They see them, and immediately, immediately they back off. Avimelekh is truly completely clean there. All that remains is only the result—that is the guilt. In that case he is not completely clean. Fine. Also, how does he back off? Only when he sees Abraham being intimate with his wife. How does he back off? “And God came to Avimelekh in a dream at night and said to him, ‘Behold, you are a dead man because of the woman you have taken.’” He was simply afraid of the punishment. But in the third case, there was no punishment involved at all; that wasn’t even the issue. He just saw that she was Isaac’s wife and immediately recoiled. What, take her? What do you want from me? Why did you trip me up? That is the plain meaning of the verses; it’s not some linguistic nuance—the plain meaning of the verses. And therefore here it was only the threat of punishment that disturbed him, right? In truth he was not really so pure and righteous. What happens in the first case? In the first case, they of course do not investigate at all, right? Abraham knows whom he is dealing with, so he says, “Please say that you are my sister.” Then “the Egyptians saw that the woman was very beautiful, and they praised her to Pharaoh, and she was taken to Pharaoh’s house.” They did not ask him at all. He only planned with her to say “my sister.” What is described here is not what they told the Egyptians; what is described here is the plan between Abraham and Sarah. The Egyptians did not ask him. Maybe he would even have had to lie—they simply took her. That is fully intentional. It is neither sin nor guilt; it is outright intentional wrongdoing. Therefore this is the only place where it says: “And the Lord afflicted Pharaoh and his house with great plagues because of Sarah, Abraham’s wife.” He got punished. You do not get punishment for an unintentional act or for an act under duress; you get punishment for intentional wrongdoing. Because you acted intentionally—that is exactly the point. Therefore you receive punishment. And about this he says to Abraham, “What have you done to me?” And what is this? He suddenly remembers that he is such a righteous person? This whole story was outright intentional wrongdoing—don’t tell me stories. The first passage is intentional, and therefore punishment; the second passage is unintentional, and therefore sin-offering or sin; the third passage is under duress, and therefore guilt-offering. That is the difference. Up to here. May you have a kosher, happy, and delightful Passover.