Lesson 8: Lech Lecha

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

Concepts

• Sin and guilt.
• Atonement and repair.
• Commandments in the gavra (the person) and in the hefza (the object or state of affairs).
• Commandments of action and of result.

Summary

In this article we discuss the three narratives of “Please say that you are my sister.” We argue that they address three different layers of sin: damage to reality, the human being’s culpability, and punishment.

We then distinguish between the guilt offering, which we argue at length is brought as a repair for a flaw in reality, even in situations where there is no violation in halakha (Jewish law) at all, and the sin offering, which is brought as atonement for a person’s halakhic wrongdoing. We conclude with a short discussion of the relation between the hefza-gavra distinction, that is, the distinction between a commandment oriented toward the object or state of affairs and one oriented toward the person, and the action-result distinction, presented in our article on the portion of Bereshit, which belongs to the sphere of the formal halakhic definition of the commandment. We illustrate this with an example from later authorities who explain the hefza-gavra distinction that appears in Babylonian Talmud, Nedarim 2b.

Among other things, the article addresses questions such as: What is the nature of the offense in doubtful prohibitions? Why is one who eats without a blessing liable for a guilt offering even though there is no prohibition? Why are guilt offerings often brought even for deliberate acts? And more.

The Rules and Principles Emerging from the Article

1. etc.

Between the Sin Offering and the Guilt Offering

A Look at the Relationship Between Halakha, the Commanded Person, and Objective Reality

Introduction

In this article we will present three parallel narratives that appear in the book of Genesis. In all of them, one of the patriarchs tells his wife to present a false picture, namely to say that she is his sister, to a Gentile king who threatens to take her by force. Commentators have discussed these narratives at length, including by way of homiletic interpretation and dialectical analysis. Even so, the plain sense itself still requires explanation, especially the strange repetition of the three narratives.

We will try to explain these narratives, and their similarities and differences. From that point we will attempt to understand the nature of the guilt offering as compared to the sin offering. In the end we will see that this discussion is connected to two different layers that we find in the observance of the commandments and in the service of God generally: the subjective and the objective.

A. The Three Narratives of “Please Say That You Are My Sister”

Introduction

Three times the Torah tells of an almost identical event involving one of the patriarchs and his wife with a Gentile king. In our portion, the episode is between Abraham and Sarah and Pharaoh. In the portion of Vayera, a similar case appears between Abraham and Sarah and Abimelech. In the portion of Toledot, a third case appears between Isaac and Rebekah and Abimelech. There are many differences in detail among these three narratives, and in this week’s essay we will try to understand them, and from them draw broader conclusions.

The Three Narratives

We will cite here the full biblical text of the three narratives, so that the reader can directly observe the differences to which we will point. In Lech-Lecha the text describes the matter as follows (Genesis 12:11-20):

When he was about to enter Egypt, he said to Sarai his wife: “Look, I know that you are a woman beautiful in appearance. And when the Egyptians see you, they will say, ‘This is his wife,’ and they will kill me, but let you live. Please say that you are my sister, so that it may go well with me because of you, and that my life may be spared on your account.”

And when Abram came into Egypt, the Egyptians saw that the woman was very beautiful. Pharaoh’s officials saw her and praised her to Pharaoh, and the woman was taken into Pharaoh’s house. And for her sake he treated Abram well, and he had sheep, cattle, donkeys, male servants, female servants, she-donkeys, and camels.

But the Lord afflicted Pharaoh and his house with great plagues because of Sarai, Abram’s wife. Then Pharaoh called Abram and said: “What is this you have done to me? Why did you not tell me that she was your wife? Why did you say, ‘She is my sister,’ so that I took her to be my wife? Now then, here is your wife. Take her and go.”

And Pharaoh gave men orders concerning him, and they sent him away, and his wife, and all that he had.

In Vayera the text describes it as follows (Genesis 20:1-18):

Abraham journeyed from there to the region of the Negev, and settled between Kadesh and Shur; and he sojourned in Gerar. And Abraham said of Sarah his wife, “She is my sister.” So Abimelech king of Gerar sent and took Sarah.

But God came to Abimelech in a dream by night and said to him: “Behold, you are a dead man because of the woman whom you have taken, for she is a married woman.” Now Abimelech had not come near her. He said: “Lord, will You slay even a righteous nation? Did he not himself say to me, ‘She is my sister’? And she too said, ‘He is my brother.’ In the innocence of my heart and the cleanness of my hands I have done this.”

And God said to him in the dream: “I too know that in the innocence of your heart you did this, and I also withheld you from sinning against Me; that is why I did not let you touch her. And now, restore the man’s wife, for he is a prophet, and he will pray for you and you shall live. But if you do not restore her, know that you shall surely die, you and all that is yours.”

So Abimelech rose early in the morning, called all his servants, and spoke all these words in their hearing; and the men were very afraid. Then Abimelech called Abraham and said to him: “What have you done to us? And how have I sinned against you, that you have brought upon me and my kingdom a great sin? You have done to me deeds that ought not to be done.”

And Abimelech said to Abraham: “What did you see, that you have done this thing?” Abraham said: “Because I thought, surely there is no fear of God in this place, and they will kill me because of my wife. Besides, she truly is my sister, the daughter of my father though not the daughter of my mother; and she became my wife. And when God caused me to wander from my father’s house, I said to her: ‘This is the kindness you shall do me: at every place to which we come, say of me, “He is my brother.”‘”

Then Abimelech took sheep, cattle, male servants, and female servants, and gave them to Abraham, and restored Sarah his wife to him. And Abimelech said: “Behold, my land is before you; dwell wherever it pleases you.” And to Sarah he said: “Behold, I have given your brother a thousand pieces of silver. It is for you a covering of the eyes before all who are with you and before everyone; thus you are vindicated.”

Then Abraham prayed to God, and God healed Abimelech, and his wife, and his female slaves, so that they bore children. For the Lord had completely closed every womb of the house of Abimelech because of Sarah, Abraham’s wife.

And in Toledot the description is as follows (Genesis 26:6-12):

So Isaac settled in Gerar. And the men of the place asked him about his wife, and he said, “She is my sister,” because he was afraid to say, “My wife,” lest the men of the place kill me because of Rebekah, for she was beautiful in appearance.

When he had been there a long time, Abimelech king of the Philistines looked out through the window and saw Isaac laughing intimately with Rebekah his wife. Then Abimelech called Isaac and said: “Surely she is your wife. How could you say, ‘She is my sister’?” Isaac said to him: “Because I said, ‘Lest I die because of her.'”

And Abimelech said: “What is this you have done to us? One of the people might almost have lain with your wife, and you would have brought guilt upon us.” So Abimelech commanded all the people, saying: “Whoever touches this man or his wife shall surely be put to death.”

And Isaac sowed in that land, and in that year reaped a hundredfold, and the Lord blessed him.

The Fundamental Difference and the Main Thesis

The fundamental difference from which we begin is this: in the third narrative, Abimelech claims against Isaac that he almost brought “guilt” upon him. By contrast, that same Abimelech in the second narrative claims against Abraham that he almost brought upon him a “sin.” In the preceding verse as well, the Holy One tells Abimelech that He prevented him from “sinning” against Him. In the first narrative, by contrast, what troubles Pharaoh is neither sin nor guilt, but punishment, the plagues that God brought upon him.

Our claim is that these three narratives describe three kinds of sin. The first narrative deals with fully deliberate sin. Here punishment is imposed, and therefore what troubles Pharaoh is the punishment. In the second narrative the sin is unwitting, and therefore what is expected to come upon Abimelech is “sin.” There is no punishment for such a sin, and therefore he is not troubled by that aspect. In the third narrative there is not even an unwitting sin, since the case is one of coercion. Yet in the end, a married woman has in fact been taken from her husband, and that state of affairs, even if it involves no transgression, is “guilt.”

Justifications and Interpretive Considerations

In the third narrative, the men of the place ask Isaac about his wife. That is, they investigate the situation before taking her. Isaac misleads them, and therefore they act under compulsion. In such a case there is no sin and no culpability, but the reality of taking a married woman is still present. The devastation in reality is the guilt. Below we will see that this is the basis for liability to a guilt offering.

In the second narrative, Abimelech is described as taking Sarah without asking questions. The inquiry appears only at the end, when he says that he had been told that she was Abraham’s sister. This form of presentation comes to emphasize that there is sin here, and that this is not full coercion. Another hint is that Abimelech tells God that his act was done with clean hands and an innocent heart, and God answers that indeed he acted with an innocent heart. For some reason, however, the text does not recognize “clean hands” here. See Hidushei ha-Griz on the Torah, which notes this point. This is a clear textual hint that there was some lack of clean hands here, because this was an unwitting act, not coercion. Several commentators have written that the difference between inadvertence and coercion is that inadvertence involves some degree of negligence.

By contrast with those two, in the first narrative Pharaoh does not speak at all about sin or guilt. What brings him to Abraham is the plagues that have come upon him, that is, the punishment. This is a description of deliberate sin, which requires punishment. For that reason, one sees that Abraham makes no effort at all to justify himself before Pharaoh, unlike in the two later narratives.

It seems that the main lines of our approach can already be found in Nahmanides. In his commentary on the verses in Lech-Lecha he writes:

It appears from the plain sense of the verses that Sarah did not undertake to say this. Rather, the Egyptians were exceedingly wicked and sinful. When they saw her and praised her to Pharaoh, she was taken into his house, and they did not ask them at all whether she was his wife or his sister. She remained silent and did not say that she was his wife, while Abraham himself said that she was his sister, and therefore they treated him well on her account. This is the meaning of the verse, “What is this you have done to me? Why did you not tell me that she was your wife?” Pharaoh accused him that, when he saw they were taking her, he should have told Pharaoh that she was his wife. He then again accused him for later telling the officials and Pharaoh’s house that she was his sister. He did not accuse the woman at all, for it is not fitting that she contradict her husband, and it is fitting for her to remain silent.

Likewise, in his commentary to Genesis 12:17, he writes:

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

Nahmanides here uses the term “violence,” drawn from the world of robbery. Below we will return to the connection between the offense of a married woman and theft.

By contrast, in his commentary on Vayera Nahmanides writes:

“And Abraham said of Sarah his wife, ‘She is my sister'”—this was not like Egypt. There, when they came to Egypt, the Egyptians saw that the woman was beautiful and praised her to the officials and to the king, for they were men of licentiousness. But this king was innocent and upright, and his people too were good; only Abraham suspected them, and therefore he would say everywhere, “She is my sister.”

So these people were righteous, unlike the Egyptians in the earlier case. In the continuation of Nahmanides’ remarks there, Abimelech too is treated as fully unwitting.

There is no explicit treatment by Nahmanides of the third narrative. But immediately afterward, in his commentary to Genesis 26:19, when discussing Isaac’s quarrel over the wells with Abimelech’s servants, he writes:

…The meaning of “we did not touch you” is that our heart was not tempted by your wife so as to touch either of you, as in the phrase “whoever touches this man or his wife.”

“And we did only good with you” means that we guarded all that was yours by commanding the people to beware of you.

“And we sent you away in peace” means that even in our jealousy of you, we did not take any of the wealth you made among us, but sent you away with all that was yours in peace.

The meaning of this fear which they felt of him is not that the king of the Philistines feared that Isaac would come upon him in war. Abraham had assured them, to him, to his son, and to his grandson. Rather, they said in their hearts that because we broke our covenant with Isaac and sent him away from us, he too would break his covenant with us and his descendants would drive our descendants from the land. Therefore they made a new covenant with him, and apologized by saying that they had not broken the first covenant, for they had done only good with him. This is the meaning of “let there now be an oath between us”—that we now enter with you into an oath that places a ban on anyone who violates the covenant, like the phrase “to enter into the covenant of the Lord your God and into His oath” (Deuteronomy 29:11).

Nahmanides’ words make it quite clear that Abimelech’s people kept the covenant made with Abraham and did not touch Isaac or his wife. It thus appears that there was no sin at all upon them, not even an unwitting one, exactly as we explained above.

Educational Implication

We find, then, that sin has three aspects:

1. The fact that reality has been damaged. This obligates us not to act in a certain way, so that reality will not be damaged. From here the Torah places a prohibition on the act.
2. Once the Torah has prohibited the act, one who performs it becomes an offender in the subjective sense as well. He not only damages reality; he also disobeys the commands of the Torah.
3. The third aspect is that when such an act is performed deliberately, the Torah imposes punishment.

These three stages are also relevant to education in the commandments:

1. At the first stage one must educate toward fear of punishment: one should not sin so as not to be punished. This is the layer of deliberate sin, and of course no sacrificial liability exists there. The lesson is that one may not sin deliberately.
2. After that one must educate toward fear of sin: to guard the divine commands and not transgress them, even without malicious intent. The problematic element here is the person’s subjective culpability, and this is the layer of the sin offering. The lesson is that one may not sin even unwittingly.
3. At the third stage one must internalize the fact that God prohibited these acts for a reason. Apparently they damage some layer of objective reality. Therefore, even where there is no personal sin, and certainly no deliberate rebellion, one must still be concerned that reality itself remain whole.

B. What Is the Guilt Offering?¹

Introduction

In this section we will begin to clarify the three aspects presented in the previous section, in light of the relation between the guilt offering and the sin offering.

The guilt offerings are divided into two principal categories: guilt offerings for sin and guilt offerings for purification. Each of these categories is itself divided into several subtypes. In this section we will try to identify the common denominator of the various guilt offerings for sin, and on that basis explain some of the laws that govern them, not the sacrificial procedure itself, but the rules determining liability to bring the offering. In the end we will also suggest a possible connection between the two general categories of guilt offering.

Guilt Offerings: A General Survey

There are six guilt offerings in halakha, divided into three principal groups:

1. Three guilt offerings brought for sin: the guilt offering for misuse of consecrated property, the guilt offering for robbery, brought for a false oath concerning property not one’s own that is being claimed from him, such as wages due to a laborer, a lost object, stolen property, and the like, and the guilt offering for a designated maidservant.
2. Two guilt offerings for purification: that of the Nazirite and that of the leper. These apparently are not offerings brought for sin, but offerings brought for purification. See the discussion in Babylonian Talmud, Shevuot 22a, where it is explained that a Nazirite does not bring a sacrifice for sin.
3. The suspensive guilt offering, brought for an unwitting violation in a case of doubtful prohibition. This too is, in essence, a guilt offering brought for sin, but its character differs from that of the guilt offerings listed in the first category.

Nahmanides, in his commentary to the Torah on Leviticus 5:15, discusses the meaning of the name asham, and contrasts it with hatat. Here we will try to propose an understanding, apparently different from his, of the meaning of the guilt offerings.

A Guilt Offering Is Brought for Deliberate and Unwitting Acts Alike

We begin with the language of the mishnah cited in Babylonian Talmud, Keritot 9a, which lists four offerings that are brought for deliberate acts just as for unwitting ones:

These are brought for deliberate acts just as for unwitting ones: one who has relations with a designated maidservant, a Nazirite who became impure, an oath of testimony, and an oath concerning a deposit.

Three of the four items on this list are guilt offerings: the guilt offering of the designated maidservant, the guilt offering for robbery, and the guilt offering of the Nazirite. The exception is the offering for an oath of testimony, which is a sliding-scale offering, but the Torah also calls it an asham, and the explanation is that it too is brought for deliberate acts. It is plainly evident that a substantive characteristic of guilt offerings is that they are brought for deliberate acts just as for unwitting ones. In the Gemara there it is explained that the Nazirite’s guilt offering is brought even in a case beyond his control.

The same point appears in Rashi’s comment to the mishnah in Babylonian Talmud, Horayot 8a:

Moreover, with guilt offerings there is no law of an erroneous communal ruling, for one is liable to a definite guilt offering for deliberate acts just as for unwitting ones.

True, the guilt offering for misuse of consecrated property is exceptional in this respect, since it is brought only for an unwitting act; indeed, misuse of consecrated property is generally defined only in a case of inadvertence. The suspensive guilt offering too, which is brought in cases of doubtful unwitting violation, is a guilt offering brought for an unwitting act. The question therefore arises: if liability for deliberate acts just as for unwitting ones is indeed an essential feature of guilt offerings, then why do the suspensive guilt offering and the guilt offering for misuse of consecrated property, which are brought only for unwitting acts, belong to the family of guilt offerings at all?

The natural solution is that there must be a more fundamental characteristic of guilt offerings, and not specifically the fact that they apply even to deliberate acts. The feature noted in the mishnah and in Rashi, according to which a guilt offering is generally brought for deliberate acts just as for unwitting ones, must be only a derivative of the more fundamental characteristic we are seeking. The fundamental characteristic must account for all guilt offerings, including those brought only for unwitting acts, and also the guilt offerings of purification. In the next subsection we will try to identify that basic characteristic.

The Essential Characteristic Common to All Guilt Offerings

To examine what is common to all guilt offerings, we will now consider them one by one and ask what distinguishes the offenses for which a guilt offering is brought from all other offenses.

1. The Guilt Offering of the Designated Maidservant

The guilt offering of the designated maidservant is the clearest example for our purposes. This offering is brought by a man who has relations with a designated maidservant. According to the conclusion of the Gemara and the halakhic ruling, a designated maidservant is a woman who is half slave and half free, betrothed to a Hebrew slave, and perhaps also to an ordinary Jew. Since she has a slave dimension, ordinary marriage does not fully apply to her, and therefore she is not considered, in strict halakhic terms, a sexually forbidden relation. In practice, the maidservant receives lashes, but according to most opinions the man who has relations with her does not violate any negative commandment at all. Yet even though he violates no negative commandment, he is still liable for a guilt offering. This is highly puzzling: how can one bring a guilt offering for an act that is not even defined in halakha as a transgression?

To explain this, let us first cite the remarks of Penei Yehoshua in the discussion in Babylonian Talmud, Gittin 43b:

There Rav Hisda said: a woman who is half slave and half free, who was betrothed to Reuven and then emancipated … regarding her I cannot apply the phrase “the wife of two dead men” … This is difficult for me, for even without emancipation one could still find a “wife of two dead men” if, after Reuven betrothed her, she returned and became betrothed to Shimon. Granted, Reuven’s betrothal takes effect in her, but since one is liable because of those betrothals only for a guilt offering, as implied by Rashi and as the Rosh wrote, it would seem that Shimon’s betrothal should also take effect in her, for we hold that betrothal takes effect even in cases of ordinary negative commandments, and here there is not even a negative commandment, only a bare guilt offering.

This is the way the matter appears to me. In the later edition by the author, all this fits the language of Tosafot on the phrase “and I cannot apply,” for they seem to hold that we do not find, on the biblical level, a bond to two levirs at all, and therefore they had to explain that it exists elsewhere. Against that, my question stands well, for one would indeed find it in the configuration discussed here when she was not emancipated. See further below in Tosafot’s language and consider it carefully.

Penei Yehoshua asks why betrothal to a designated maidservant should not take effect, given that the prohibition of an ervah, a sexually forbidden relation, does not apply there. In his own formulation, the problem is this: if someone marries a designated maidservant, the betrothal should apparently take effect, since she is not forbidden as an ervah. And if betrothal does take effect where intercourse is prohibited only by an ordinary negative commandment, as opposed to cases punishable by karet, then where there is no prohibition on intercourse at all, but only sacrificial liability, all the more so the betrothal should take effect. But if so, the Talmud’s assertion that “we do not find the wife of two dead men,” meaning a situation in which one woman is married to two husbands, becomes difficult. In a case where one betroths a designated maidservant, it would seem that the second man’s betrothal takes effect, and thus that designated maidservant would have two husbands.

Penei Yehoshua answers as follows:

It seems to me that the rule that betrothal takes effect in cases of ordinary negative commandments applies only to negative commandments in general. But once Reuven’s betrothal has taken effect, she is under his authority, and she has no legal capacity to receive betrothal from someone else. So it seems to me.

Penei Yehoshua‘s claim is not entirely clear. It appears that his intention is to argue that the non-effectiveness of betrothal with respect to a married woman is not similar to the corresponding rule in the other forbidden relations. As is well known, in the case of forbidden relations, unlike ordinary negative commandments, betrothal does not take effect. A man cannot betroth his sister. Such forbidden relations fall into two groups: kinship prohibitions and the prohibition of a married woman. Now, in the case of an ordinary forbidden relation, such as a sister, betrothal does not take effect because intercourse with her carries a severe prohibition, namely karet, which is more severe than an ordinary negative commandment. But the non-effectiveness of betrothal in the case of a married woman stems from the fact that she is another man’s wife. The fundamental problem is not the severity of the offense of intercourse with a married woman, but the fact that she is already bound and belongs to someone else. From this Penei Yehoshua concludes that with a designated maidservant, although there is no formal halakhic prohibition against intercourse with her, betrothal nevertheless does not take effect, since in the end she is another man’s wife. That is, there is here something like the theft of a woman from someone else.²

The heart of Penei Yehoshua‘s innovation is that even if a designated maidservant is another man’s wife, and intercourse with her does not constitute a severe prohibition, indeed is not formally prohibited at all, betrothal nevertheless does not take effect in her. Something of this very idea already appears in Maimonides, Laws of Kings 9:14:

How are they commanded concerning the legal system? They are obligated to appoint judges and magistrates in every district and district to judge concerning these six commandments and to warn the people. A Noahide who transgresses one of these seven commandments is executed by the sword. For this reason all the inhabitants of Shechem were liable to execution: Shechem robbed, and they saw and knew and did not judge him. A Noahide is executed on the testimony of one witness and by one judge, without prior warning, and even on the testimony of relatives, though not on a woman’s testimony, and a woman may not judge for them.

It emerges from Maimonides that a Noahide who takes another man’s wife violates the prohibition of theft. This is how Maimonides explains the sin of the people of Shechem in not judging Shechem for having “robbed” the daughter of Jacob.³

In this language one may say that Penei Yehoshua is renewing the idea that the definition of the prohibition of a married woman also contains something akin to theft. Most likely, however, his intent is only with respect to the non-effectiveness of betrothal. There are thus two laws in the prohibition of a married woman: forbidden sexuality and theft, and each supplies a reason why betrothal should not take effect. In the case of the designated maidservant, by contrast, only one of these is present, namely theft and not forbidden sexuality.⁴

Let us return now to the discussion of the guilt offering of the designated maidservant. We saw above that the guilt offering for intercourse with such a maidservant comes without any prohibition. Yet if a sacrifice is brought for this act, there must clearly be something flawed about it. But what can be flawed in an act that is not defined as a halakhic transgression at all? Presumably, the flaw lies in the very fact that a person has invaded a domain that is not his and taken something that “belongs” to someone else. The problem here is not the halakhic prohibition in the act, but the simple fact that it violates the personal and social order. Below we will see an identical problem in ordinary monetary theft as well.

According to our approach, a guilt offering is brought for an act that is not necessarily a transgression, but that has an essential defect. There may be no explicit commandment regarding it, but the act is clearly improper. Acts that are improper in themselves, even without a commandment, are generally acts of taking or using something outside the sphere of a person’s rightful domain. The basis of liability is the factual reality that the thing taken lies outside the taker’s domain, even if no formal halakhic prohibition is involved.⁵ Below we will see additional examples of this.

A similar idea can be seen with regard to an ordinary married woman as well, not only a designated maidservant. According to halakha, if a married woman commits adultery deliberately, she “commits a trespass against her husband” and becomes forbidden to him. But if she committed adultery unwittingly or under coercion, she remains permitted to him, unless he is a priest. From this alone one can already see that the language of trespass does not belong specifically to inadvertence. On the contrary, here trespass appears specifically in a deliberate act. If the act was unwitting or coerced, there is no trespass, and therefore the woman is not forbidden to her husband.

The mishnah at the beginning of the chapter Kelal Gadol in tractate Shabbat distinguishes between two kinds of inadvertence: inadvertence concerning the labor, when a person does not know that his act constitutes desecration of the Sabbath, and inadvertence concerning the Sabbath, when a person does not know that today is the Sabbath. In halakha there is no difference at all between these two forms of inadvertence, not only in the laws of Sabbath but throughout the Torah. Yet Maharik, in a responsum, rules that with respect to the prohibition of a woman to her husband after adultery, there is a difference between these two forms of inadvertence. In Responsa Maharik, root 167, cited also by Rema in Even ha-Ezer 178:3, he writes:

As for what Rabbi Yehiel asked concerning a woman who committed adultery under her husband willingly, but she did not know whether the matter was prohibited, whether that counts as inadvertence: in my humble opinion this woman does not have the status of inadvertence so as to be permitted to her husband, since she intended to commit a trespass against her husband and to commit adultery beneath him. For Scripture does not say, “If a man’s wife goes astray and commits a trespass against the Lord,” which would imply only one who intended the prohibition. Rather it says, “and commits a trespass against him.”

According to Maharik, if the married woman did not know that the act was prohibited, then the act is indeed an unwitting transgression and she is not punished for it. But despite that, she becomes forbidden to her husband, just like a woman who committed adultery deliberately. Only if she acted under an error about the act itself, that is, she did not know that what she was doing was adulterous intercourse, does she not become forbidden to him. What is the difference between these two forms of inadvertence? As noted, in the laws of Sabbath we do not distinguish between inadvertence concerning the day and inadvertence concerning the labor. Why, then, is such a distinction drawn in the case of marital trespass?

Maharik’s explanation is that the woman’s prohibition to her husband after adultery does not stem from the transgression contained in the act. It stems from the fact that the act damages the bond between husband and wife. If she intentionally damages such a bond, even if she does not know that this is prohibited, and even if in truth she violated no prohibition at all, as we saw above regarding the designated maidservant, she has still committed a trespass against her husband, and therefore she becomes forbidden to him.

From the standpoint of the transgression, such an act is obviously still counted as inadvertent. But the damage, that is, the trespass, to the marital bond is not tied specifically to the formal prohibition; rather, it is tied to the blurring of the factual boundaries of marriage. Here too, the woman and her partner invaded a domain that was not theirs, thereby violating the social and marital order. Such an invasion is called trespass.

We learn two things from this that are relevant to our discussion.

First, the marital bond between a woman and her husband is not merely a formal halakhic bond. The bond is also a factual reality, and damaging it is not merely a transgression but a blow to reality itself. This opens the possibility suggested by Penei Yehoshua: that betrothal to a married woman does not fail to take effect only because of the transgression involved, but also because she is already bound and already situated in someone else’s domain.

Second, Maharik shows that the Torah’s language of trespass means factual damage, not necessarily transgression. This conclusion joins everything we have said thus far.

In the next subsection we will see that, from such a conception, liability to the guilt offering for ordinary misuse of consecrated property follows as well. The guilt offering of the designated maidservant, like trespass in an ordinary marital bond, and like the guilt offering for misuse of consecrated property, are all brought for invasion into a domain that is not ours, and not because of a formal halakhic prohibition.

2. The Guilt Offering for Misuse of Consecrated Property

As noted, one of the guilt offerings for sin is the guilt offering for misuse of consecrated property, and it is brought specifically for an unwitting act. As we saw, this offering posed a problem for our claim that deliberate action is an essential component in the profile of guilt offerings. We can now propose a solution.

From Maharik’s principle it follows without doubt that the act of that adulterous woman is called a trespass not because it was done unwittingly, but despite the fact that it was unwitting. Inadvertence is not the essential feature of trespass. On the contrary, it seems that it is specifically a deliberate act that is called trespass. That is why a woman becomes forbidden to her husband only in a deliberate case, or in an unwitting case that is effectively deliberate from the standpoint of damage to the marital bond. If so, what defines an act as trespass? From what we have said here, the act is called trespass because it damages the reality of the bond between husband and wife, even if no formal transgression is involved. The essential feature is the very reality that such a thing has occurred, namely the blurring of boundaries between the family unit and what lies outside it. The woman and her partner laid hands on something outside their rightful sphere and thereby destroyed a boundary and a delimitation that ought to exist. We saw the same thing in the case of Abimelech and Isaac: there too the problem was factual trespass into the marital bond.

If so, it is entirely possible that the prohibition of misuse of consecrated property is similar. There too, the offense is not constituted as an offense because it is done unwittingly. Rather, it is constituted by the fact that the boundary between the domain of the sanctuary and the non-sacred, the ordinary sphere of the trespasser, has been breached. The trespasser has invaded a domain not his own, exactly like the adulterous pair in Maharik.

We can now understand why the guilt offering for misuse of consecrated property exists only for inadvertence. This is a consequence of the laws of misuse of consecrated property, not of the laws of guilt offerings. Only when a person commits such misuse unwittingly does the object pass from sacred to ordinary status. When the misuse is deliberate, no such transfer occurs. Since the guilt offering is brought for the injury done to the domain of consecration, as every guilt offering is brought for damage done by invasion into another domain, and such damage occurs only in inadvertence, it is obvious that liability to this guilt offering will likewise arise only in inadvertence.

We can therefore see that the guilt offering for misuse of consecrated property, although brought only for unwitting acts, actually proves our claim rather than contradicting it. The offense of misuse exists in consecrated property even in deliberate cases, and yet no guilt offering is brought for it. The reason is that the guilt offering is not for the transgression, but for the object’s transition into ordinary status, and that transition occurs only in inadvertence. This proves that the guilt offering for misuse of consecrated property, too, is not brought for transgression, but for invasion into another domain.

We arrive at the conclusion that guilt offerings in general, and the guilt offering for misuse of consecrated property in particular, are brought for a damaged reality, or for invasion into a domain not ours, and not necessarily for transgression in the halakhic sense. When a person performs an act that harms some factual-legal boundary, he must bring a guilt offering. The obligation exists even if his act is not accompanied by a formal halakhic transgression, and there is no explicit source forbidding it. Before we turn to the other guilt offerings, let us discuss two puzzling examples of misuse of consecrated property and explain them in light of this principle.

I. Blessings Before Enjoyment

In Babylonian Talmud, Berakhot 35a, the Gemara discusses the source of the obligation to recite blessings before eating and similar acts of enjoyment. It states:

From where are these matters derived? For our Rabbis taught: “holy praises to the Lord” teaches that they require a blessing before them and after them. From here Rabbi Akiva said: It is forbidden for a person to taste anything before reciting a blessing… Rather, it is a matter of reason: it is forbidden for a person to derive benefit from this world without a blessing. Our Rabbis taught: It is forbidden for a person to derive benefit from this world without a blessing, and whoever derives benefit from this world without a blessing commits trespass. What is his remedy? He should go to a sage. What can a sage do for him? He has already committed the prohibition. Rather, Rava said: He should go to a sage beforehand and learn the blessings, so that he not come to trespass.

The Gemara seeks a source for the obligation of these blessings, and in the end grounds it in reason: one may not derive benefit from this world without a blessing, and whoever does so is a trespasser. It is obvious that the intent is not to the full halakhic category of misuse of consecrated property, but to an aggadic expression, saying that one who benefits without a blessing is as though he committed trespass.

And indeed, the disciples of Rabbi Yonah write there as follows:

“‘Holy praises to the Lord’ teaches that it requires a blessing before and after… But this is only a scriptural support. Certainly, from the Torah, even the seven species, which require an after-blessing by biblical law because Scripture says, ‘And you shall eat and be satisfied and bless,’ do not require a blessing beforehand by biblical law, but only by rabbinic law…”

So it is clear to them that even when the Gemara initially derived the obligation from a verse, it was only a scriptural support, and the obligation itself is rabbinic. And once the Gemara concludes that the obligation is based on reason, it is all the more obvious that it is rabbinic. Yet later, in the same discussion, we find in the disciples of Rabbi Yonah a surprising statement:

That is, one who does not know the blessings—how can he eat? If he eats, every single time he will become liable for a guilt offering for misuse of consecrated property. The answer is that he should go to one proficient and learn the blessings for each and every thing. The same applies even if he knows only the blessing “Everything came to be by His word”; he thereby escapes trespass immediately. For we learned in Babylonian Talmud, Berakhot 40a: regarding all foods, if he said “Everything came to be by His word,” he has fulfilled his obligation. He still must learn, however, in order to recite the proper blessing for each and every kind of thing.

That is, despite the fact that the obligation to bless before food is rabbinic, the disciples of Rabbi Yonah rule that one who derives benefit without such a blessing is truly a trespasser, and not merely “as though” a trespasser, as is also the plain sense of the Gemara and of Rif there. They conclude that if he ate without a blessing, he becomes obligated to bring the guilt offering for misuse of consecrated property. This is apparently astonishing: if the prohibition against eating without a prior blessing is only rabbinic, how can the eater be liable to bring such an offering? Surely that would seem to be the bringing of unconsecrated animals into the Temple courtyard.

The explanation probably lies in the well-known remarks of Penei Yehoshua there:

The language of all the halakhic decisors implies that according to the conclusion here, all blessings over enjoyment are rabbinic, except only grace after meals… But in my humble opinion this is astonishing, for throughout the Talmud anything derived from reason has biblical force. Indeed, the Talmud often asks, “Why do I need a verse? It is a matter of reason.” Moreover, after the food one does recite a blessing, so he has not derived benefit from this world without a blessing. So it seems to me, although it still requires further study. See my later addendum.

Penei Yehoshua explains that anything learned by reason acquires the status of biblical law. He therefore wonders at the accepted ruling that the obligation to bless before food is only rabbinic. We may note that Tzelah there disagrees with him and holds that reason indeed generates only a rabbinic obligation.⁶ One possible practical difference concerns cases of doubt about blessings: should we be stringent or lenient? But in practice it is clear that in cases of doubt we rule leniently with blessings, and therefore Penei Yehoshua remains uncertain.

It seems that according to Penei Yehoshua, who maintains that what follows from reason has biblical force, we must conclude that the obligation to bless before food is indeed biblical, though the specific liturgical formula instituted by the Sages is only rabbinic. According to this, where one is in doubt whether he blessed before eating, he should be stringent and bless and thank God in his own words, though not necessarily in the fixed liturgical form, and without the divine name. Only regarding the fixed formula, which is rabbinic, would one rule leniently in a case of doubt.

This seems to be the source of the disciples of Rabbi Yonah’s statement quoted above. What of one who ate with no blessing whatsoever, in any form, even in his own words? They write that he is liable to a guilt offering, and that this liability follows from reason with something like biblical force. True, this obligation stems from reason and not from a formal textual source. But it is still not the bringing of unconsecrated animals into the Temple courtyard. That person committed trespass, because he took something that was not in his domain without permission; it is therefore like misuse of consecrated property. The factual boundary was crossed, and even if there is no formal biblical rule forbidding it, he is liable for a guilt offering.

For this reason, the disciples of Rabbi Yonah rule that if he says the general blessing “Everything came to be by His word,” he escapes liability for the guilt offering for misuse of consecrated property, because in the end he has fulfilled the biblical-level obligation. He has thanked God for the food, even if not in the formula instituted by the Sages. This is exactly as we proposed in resolving the difficulty raised by Penei Yehoshua.

So once again we see that, because the issue is the taking of something outside my domain without permission, we can derive a guilt offering from reason, even without a formal textual source for a prohibition. This is precisely what we saw with the designated maidservant. Again we find that the guilt offering for misuse of consecrated property is brought for invasion into a domain not one’s own, even where there is no explicit commandment and no formal transgression.

II. Misuse of Consecrated Property in Konam Vows

In several places the Gemara assumes that one who derives benefit from something forbidden to him by a konam, that is, a vow of prohibition, commits trespass. Its language is: “There is misuse of consecrated property in konam vows.” Maimonides rules accordingly:

There is misuse of consecrated property in vows. How so? If one says, “This loaf is upon me like an offering” or “consecrated,” and he eats it, he has committed trespass even though it is permitted to others. Therefore it cannot be redeemed, for it is not holy except to him alone. If he says, “This loaf is holy” or “an offering,” and he eats it, whether he or someone else eats it, trespass has been committed. Therefore it can be redeemed.

This law is puzzling. A konam is an ordinary vow, and has no intrinsic connection to sanctity or consecrated property. The prohibition is the regular prohibition against violating one’s word, not the prohibition of misuse of consecrated property. The difficulty is sharpened by the fact that the Gemara gives no source for this law, and it appears to be derived from reason. How can one innovate sacrificial liability without any source at all? Would that not amount to bringing unconsecrated animals into the Temple courtyard? Several later authorities were deeply perplexed by this.

Well known is the inquiry of Mishneh la-Melekh on Laws of Misuse of Consecrated Property 4:9, along with other later writers: does a konam also involve an actual negative commandment of misuse of consecrated property, or is the novelty only with respect to liability to bring the offering, which is explicit in the Gemara, while no separate prohibition of misuse exists here at all? Mishneh la-Melekh notes, with surprise, that Maimonides does not spell this out, and it somewhat appears that one violates not misuse of consecrated property but only the ordinary prohibition against breaking a vow.

So according to Maimonides it is unclear how liability for the guilt offering of misuse of consecrated property can exist without any prohibition beyond the ordinary prohibition of vows and oaths, which has no special connection to consecrated property. Again we see that the guilt offering for misuse of consecrated property is brought for the very act of penetrating another domain, and does not require a formal halakhic prohibition.

We should add that according to our approach, even the ordinary guilt offering for misuse of consecrated property, that brought for actual sacred property, should be understood this way: it is a sacrifice for penetration into another domain, and does not require a formal halakhic prohibition, just as we suggested in light of Maharik’s principle. True, in the case of actual sacred property there is a prohibition and not merely sacrificial liability, unlike the case of the designated maidservant. But the liability to the guilt offering is apparently only for the invasion into a higher domain, not for the prohibition as such. That is what we saw in the two examples just discussed: liability to the guilt offering for misuse of consecrated property can exist even without any prohibition.

3. The Guilt Offering for Robbery

In our article on the portion of Noah, we cited the question of Mahari Basan: why do we not rule stringently with respect to the prohibition “You shall not steal,” and how can we rule leniently for the defendant in cases of monetary doubt? We also cited the remarks of Rabbi Shimon Shkop in Sha’arei Yosher, Gate 5, that in theft the prohibitory obligation is built upon a meta-halakhic legal reality. The conclusion is that the problem with having money that is not mine in my possession does not fundamentally arise from the prohibition “You shall not steal,” but from a damaged legal and evaluative reality. The prohibition “You shall not steal” itself is built upon that basis. The natural conclusion is that the guilt offering for robbery, which is brought for the possession of money not rightfully one’s own and for denial under oath, is also an offering for a state of reality, and not necessarily for the halakhic prohibition, like the other guilt offerings we have seen until now.⁷

The liability of the suspensive guilt offering in cases of doubt will be discussed below, immediately after the interim summary.

Summary: The Sin Offering and the Guilt Offering, and the Connection Between Guilt Offerings for Sin and Guilt Offerings for Purification

We have seen that the guilt offering is brought for a damaged reality and not for a halakhic transgression. Put differently: it is brought for repair of reality, and not merely for atonement for the person. This is certainly true in places where there is no halakhic transgression at all, at least on the biblical level. But even where there is a halakhic transgression, the guilt offering is brought because of the dimension of factual damage, not because of the transgression in the act.

A state of factual damage where no formal law prohibits the act is usually one in which a meta-halakhic boundary exists, of the sort Rabbi Shimon Shkop describes, and some person crosses it without permission. Such an act is problematic by its very nature, and no commandment is needed to establish that. As a rule, acts whose prohibition is meta-halakhic are acts of taking or appropriating something, abstract or concrete, from a domain that is not mine. The definition of that “domain” is itself meta-halakhic. Sometimes halakha anchors it in a prohibition, such as “You shall not steal,” and sometimes it does not. Even where a halakhic prohibition exists against such intrusion, the prohibition itself is derived from reality, just as the guilt offering is brought for the damage done in reality, and not vice versa. Thus, as we saw, according to Rabbi Shimon Shkop, ownership is not derived from the prohibition of theft. Rather, the prohibition is derived from prior concepts of ownership.

By contrast, the sin offering is brought for atonement for the sin, or the transgression, in the person’s act, and not as a repair for the factual defect. We cannot expand upon this here. We therefore refer the reader to Michael Avraham’s article “On Causing a Secular Jew to Transgress,” Tzohar 25, where we pointed, albeit briefly, to evidence for this claim.

One implication of this difference is that the sin offering distinguishes between unwitting and deliberate acts. With respect to offenses rooted in the person’s sinfulness, the difference between inadvertence and deliberateness is very significant. A deliberate act is a very grave sin, and therefore it is not atoned for by an offering. In the case of the guilt offering, by contrast, we have seen that the sacrifice is brought for the very reality of having something not mine in my possession. With respect to objective reality as such, there is no difference between a situation created unwittingly and one created deliberately. In the end, the reality exists.

If so, the guilt offering makes atonement for the factual defect that has been created, irrespective of the transgression through which that reality was brought about. The sin offering, by contrast, atones for the culpable dimension in the act of sin, and not for the result in objective reality.

So the sin offering comes for the sin in the act. The guilt offering expresses guilt in something. Therefore it is called a guilt offering because it comes for something that happened, not for the sin within that reality. As we saw, the expression of this is that the guilt offering can apply even to deliberate acts. But we now understand that this is only a consequence of a deeper distinction, not the essence of guilt offerings themselves. It is true that some guilt offerings for sin are brought for deliberate acts just as for unwitting ones, and this is an important characteristic of a guilt offering, but not a necessary one. If the defect exists only in a case of inadvertence, then the guilt offering will be brought only in a case of inadvertence, as happens with misuse of consecrated property, where only inadvertence produces the defect and the removal from sacred status.

It may be that the word asham should indeed be understood, as Nahmanides proposes in his commentary to Leviticus, to which we referred above, in the sense of desolation. A person has performed an act whose consequences have laid something waste. The guilt offering comes to atone for the devastation that has been created, and not for the sin of the gavra, the person.

It should be noted that until now we have dealt only with guilt offerings brought for sin. But the guilt offerings of purification make the point even more sharply. Those two offerings are certainly brought for purification from a damaged state of reality, not directly for atonement for some sin. Here too, therefore, the cause of the offering is a damaged reality and not a matter of halakhic transgression. This seems to be the connection between the two different categories of guilt offerings: all of them come to repair a damaged reality, not to atone for a transgression.

4. The Suspensive Guilt Offering

We must now discuss the third category of guilt offerings: the suspensive guilt offering. Here we encounter an even more extreme case: the sacrifice is brought for an unwitting sin in a case of doubt. This is the farthest possible case from deliberate sin, since it is not even clear whether there was any sin at all. Yet we are required to bring a guilt offering for doubts, specifically those whose unwitting violation would ordinarily require a sin offering. Let us recall that the suspensive guilt offering is one of the guilt offerings brought for sin. We will see that here too our proposal resolves the problem. The suspensive guilt offering also comes for the defect created in objective reality, not for the dimension of culpability.

Maimonides writes in Laws of Impurity from a Corpse 9:12:

It is well known that all these impurities and the like that are due to doubt are matters of rabbinic law, and one is impure by Torah law only if he became definitely impure. But all doubts, whether regarding impurity, forbidden foods, forbidden sexual relations, or Sabbaths, have force only by the words of the Sages [and nevertheless, in a matter whose deliberate violation incurs karet, its doubtful case is forbidden by Torah law, for one who does it is liable to a suspensive guilt offering], as we explained in the laws of forbidden intercourse and in several places.

Raavad comments:

This is a great error. For it was said in several places that a doubt concerning Torah law is treated stringently, while a doubt concerning rabbinic law is treated leniently, and this is a doubt concerning Torah law. Rather, he should have said that here the ruling is lenient because it is a double doubt, and even in Torah law a double doubt is treated leniently.

From the language of Maimonides, if we ignore for the moment the bracketed clause, which has no convincing source in reliable editions and to which we will return, it is entirely clear that he holds that a doubt concerning Torah law is, by Torah law, treated leniently in all categories of doubt. We also see that the obligation to be stringent in all doubts involving Torah prohibitions is only rabbinic.⁸

Several later authorities noted that this cannot easily be maintained, because if so there would be no offenses for which a suspensive guilt offering applies. In the cases where a prohibited status was already established, the very cases in which a suspensive guilt offering applies, if the duty to be stringent in cases of doubt is only rabbinic, then there is no biblical transgression here at all. If so, seemingly the suspensive guilt offering has no place according to Maimonides.

For that reason, some later authorities forced the language of Maimonides and added the bracketed words quoted above. By doing so they altered his text in order to explain that he intended only doubts in which no prohibited status had previously been established. But they claimed that in doubts where a prohibited status had previously been established, even Maimonides agrees that the duty to be stringent is biblical, and therefore one who violates that duty in such a doubtful case would be liable to a suspensive guilt offering.

But all this is forced. The precise wording of Maimonides clearly says that the obligation to be stringent is rabbinic, both where no prohibited status had previously been established and where one had. Those bracketed words are plainly implausible, because they say that in prohibitions whose deliberate violation incurs karet, the doubtful case is biblically forbidden. Yet in the very same context Maimonides gives as examples Sabbath, and in the parallel discussions the same applies to idolatry, both of which are karet offenses, and still he treats the duty to be stringent as rabbinic. That solution therefore cannot stand.

The question therefore returns: how can we understand the obligation to bring a suspensive guilt offering according to Maimonides, if there is in fact no biblical transgression here at all?⁹

According to our approach, there is no difficulty and no need to force Maimonides’ language. His words remain exactly as they are and are perfectly understandable. True, there is no biblical obligation to be stringent in cases of doubt, but reason still dictates that one should do so, even without an explicit source. One who does not act stringently in cases of doubt may infringe a prohibition and create a state of defect, even though he has not violated any formal halakhic prohibition. For example, one who ate forbidden fat deliberately both violated a formal prohibition and caused damage in the world or in the soul through the sin. But one who ate a doubtful piece of forbidden fat violated no formal prohibition, since according to Maimonides there is no biblical commandment requiring him to suspect that this piece was indeed forbidden fat. Yet if in fact he did eat forbidden fat, then in the end the factual defect occurred.

What must we do when there is a factual defect without a formal act of transgression? By now we will not be surprised to discover that we must bring a guilt offering, and in this case, a suspensive guilt offering. So the suspensive guilt offering continues the chain of proofs that guilt offerings are not brought for sin or transgression, but for a defect in reality. A guilt offering is brought for the defect in reality, not for the sin of the gavra.

Let us now view this from another angle. Maimonides’ position in several places, for example in the first root of Sefer ha-Mitzvot, and see Nahmanides’ objections there, is that the obligation to obey rabbinic prohibitions is derived from the biblical command “you shall not turn aside.” Nahmanides disagrees with him in his objections to the first root. He argues that according to Maimonides we ought to treat even doubtful rabbinic prohibitions stringently, since every doubt about a rabbinic prohibition is really a doubt about the biblical command not to turn aside.

Rabbi Shlomo Zalman Auerbach, in his commentary to Shev Shema’teta, first discussion, and before him Rabbi Shimon Shkop in Sha’arei Yosher, Gate 2, explains that rabbinic prohibitions are grounded in rebellion against the command. They do not contain a hefza dimension, that is, a defect in objective reality, but only an obligation to obey the commands of the Sages.¹⁰ But when we are in a situation of doubt, there is only a doubtful command. Acting against a doubtful command cannot be defined as rebellion, and therefore it is not biblically prohibited. In their formulation: a doubtful command is no command. By contrast, ordinary biblical prohibitions contain two dimensions: both a dimension of damage in the hefza, in objective reality, and an element of rebellion against the command of God, that is, a transgression in the gavra. Therefore one must be stringent in cases of doubt concerning biblical prohibitions.¹¹

We may now ask: why must one be stringent in ordinary biblical law? Is it because of the command they contain, or because of the factual defect caused by their violation? From the description above it clearly follows that the obligation to be stringent stems only from the factual defect, since a doubtful command is no command. If so, when we face a doubt concerning an ordinary biblical prohibition, not the command “you shall not turn aside,” the dimension of command in it disappears because of the doubt, since, as we have seen, a doubtful command is no command. What remains is only the dimension of factual defect. And if despite that there remains an obligation to be stringent, then it is clear that the obligation to be stringent in doubts stems only from the defect in reality, not from the command. But according to our approach, a defect that is not produced through a formal transgression generates a guilt offering. That is exactly the obligation of the suspensive guilt offering in cases of doubt. In rabbinic prohibitions, by contrast, there is no factual-objective dimension but only a dimension of subjective transgression, that is, of the gavra, and therefore there is no obligation to be stringent in cases of doubt there.

Let us add one more point. Tosafot on Babylonian Talmud, Keritot 17b, on the phrase “from the end clause,” hold that even in a double doubt there is an obligation to bring a suspensive guilt offering. Lehem Mishneh on Laws of Unwitting Errors 8:2 infers that Maimonides apparently disagrees with them. Later authorities, for example Sha’ar ha-Melekh on Laws of Impurity from a Corpse 9:12, challenge Tosafot’s view: how can there be liability for a suspensive guilt offering when there is no obligation at all to act stringently in a double doubt, not even a rabbinic one? But according to our approach the matter is very clear, for the obligation to bring a guilt offering is unrelated to the question whether there is a halakhic obligation to be stringent. Even if the one who ruled leniently violated no prohibition, he can still become liable for a suspensive guilt offering if a defect was created.

True, according to Lehem Mishneh, Maimonides disagrees with Tosafot. But it seems that this is only for a side reason, for we have now seen that Maimonides too agrees that the suspensive guilt offering, like the other guilt offerings, can apply even without sin. If so, their dispute concerns the precise boundaries of the suspensive guilt offering, and it does not seem to depend on whether there is a halakhic obligation to be stringent in cases of doubt.

See also Sha’ar ha-Melekh there, who asks concerning Tosafot how they could obligate a suspensive guilt offering in a double doubt. He answers in the name of Pri Hadash, Yoreh De’ah 110, rules of double doubt, that according to Tosafot, if the doubt concerns a situation where a prohibited status had been established, one must be stringent even in a double doubt. This is contrary to the conclusion of Pri Hadash there, who rules leniently against Taz and other later authorities. The author of Sha’ar ha-Melekh is amazed that Pri Hadash failed to notice that this is a dispute between Maimonides and Tosafot.

According to our approach, however, one can say that Pri Hadash omitted nothing. He understood that both Maimonides and Tosafot can agree that in a double doubt there is room to rule leniently, independently of the question of the suspensive guilt offering, and it is only on that point that they disagree. Liability to the suspensive guilt offering is unrelated to the question of halakhic transgression and to the halakhic obligation to be stringent in doubtful cases.

And see there further in Sha’ar ha-Melekh, who raises another difficulty on Tosafot: according to them, the first clause of the mishnah in tractate Keritot would imply that even in the case of one piece, and not only in the case of one of two pieces, there is liability for a suspensive guilt offering in a double doubt, even though in such a case there is no reason to say that one had to be stringent. He is forced there to explain that according to Tosafot even the first clause speaks of two pieces. But according to our approach there is no need for that, for Tosafot can hold that liability for a suspensive guilt offering exists even where there was no halakhic obligation to be stringent in the doubt.

Summary

The conclusion from everything stated above is that suspensive guilt offerings are brought for a factual, meta-halakhic defect, even when no formal transgression accompanies it. This is what we call a transgression in the hefza. We have seen that all the guilt offerings for sin obey this rule. We also explained several guilt offerings that are innovated in the Talmud, such as misuse of consecrated property in konam vows, and in the medieval authorities, such as misuse of consecrated property by one who eats without first reciting a blessing, despite the absence of a formal biblical prohibition and the absence of any explicit source.

This also explains why in most guilt offerings there is no difference between deliberate and unwitting acts. The guilt offering is not brought for the sin of the gavra, but for the defect created in reality. The distinction between inadvertence and deliberateness pertains only to the measure of the person’s guilt, not to the question of damage in reality. We also noted that this helps explain the link between guilt offerings for sin and guilt offerings for purification, since those too come to repair a factual defect and not a sin.

By contrast, sin offerings are brought for the subjective, culpable dimension of the sin, that is, for the sin of the gavra.

C. Implications: The Relation to the Action-Result Distinction

General Meta-Halakhic Implications: Returning to “Please Say That You Are My Sister”

Underlying the discussion is the view that there are binding meta-halakhic prohibitions even without any source in verses or in the oral law given to Moses at Sinai. The guilt offering deals chiefly with such prohibitions. We noted that prohibitions of this sort generally resemble the crossing of some boundary and intrusion into a domain not ours. The archetype of them all is misuse of consecrated property and the guilt offering attached to it.

Yet, as we saw, even in cases where the act under discussion is covered by a formal halakhic prohibition, the guilt offering is brought for the dimension of factual damage in objective reality. This reveals a second novelty. Not only are there offenses that are not anchored in formal halakha, but even those that are so anchored sometimes derive their force from outside it. Formal halakha merely anchors, in practice, a meta-halakhic prohibition.

We thus discover that in certain sinful acts there are three different dimensions:

1. The damage in objective reality, the hefza. Sometimes this exists even without any halakhic transgression at all.
2. The culpable dimension of the person who commits the act, the gavra. This exists even in unwitting cases.
3. The punishment that comes to the offender, the sanction. This exists only in deliberate cases.

These are the three narratives with which we began, and they reflect these three dimensions.

The Connection to the Article on Bereshit

In our article on the portion of Bereshit, we presented a distinction between commandments and prohibitions of action and commandments and prohibitions of result. The commandment to be fruitful and multiply served there as an example of a result-commandment, in several different senses.

There we noted the connection between that distinction and the distinction between hefza commandments and prohibitions and gavra commandments and prohibitions. At first glance the two distinctions are very similar. A result-prohibition is what we have called here a prohibition in the hefza. Its basis lies in a problematic factual state created by the person’s act. As we saw there, even if the problematic element is the state of affairs rather than the action, there are cases in which the prohibition will nonetheless be imposed on the action rather than on the result. The reason is that a person’s control is usually over his actions, not over their results, which depend on the laws of nature and on factors not always within his control. We saw that where the result is inevitable, one can define the commandment or prohibition as a result-commandment or result-prohibition.

We gave charity as an example of the difference between the two distinctions. We saw that some understand charity as a commandment whose goal is to improve the person, while others understand its goal as improving the condition of the poor person. That disagreement concerns whether the commandment is in the gavra or in the hefza. But the question whether the commandment is formally defined as an action-commandment or a result-commandment is a different question. Even if the commandment is in the gavra, that is, directed toward the improvement of the giver’s character rather than the recipient’s condition, its formal definition can still be that of a result-commandment. If so, this is an example of a commandment that is in the gavra and yet at the same time is a result-commandment.

In light of the present article, perhaps one may sharpen the distinction between these two classifications and say the following: the distinction between commandments in the gavra and in the hefza is a distinction in the character and purposes of the commandment. The distinction between action-commandments and result-commandments is a distinction that belongs entirely to the sphere of the commandment’s formal halakhic definition. Is the Torah’s demand defined as a demand for an action or as a demand for a result?

Example: The Prohibition of a Vow

The source of the concepts hefza and gavra is not Rabbi Hayyim of Brisk. These concepts originate in the discussion in Babylonian Talmud, Nedarim 2b. The Gemara there distinguishes between a vow and an oath. A vow is a prohibition in the hefza, meaning that the person renders the object forbidden to himself. An oath, by contrast, is a prohibition in the gavra, meaning that the person forbids himself with respect to the object.

It is obvious that in both cases the addressee of the prohibition is the person.¹² The Torah does not address inanimate objects or animals. The difference lies in how we define the prohibition on the person: is it a prohibition on him to do something with the object, or is it the imposition of a legal status on the object, from which the prohibition on the person is then derived? At first glance, this is precisely the distinction between result and action.

We may add that there is a dispute among the medieval authorities concerning how to understand this statement of the Gemara.¹³ Some of them understand that the Gemara’s main novelty concerns vows, namely that vows are prohibitions in the hefza, and from that it follows that all the other prohibitions of the Torah are prohibitions in the gavra. Others understand the matter exactly the other way around: the main novelty of the sugya concerns oaths, namely that they are prohibitions in the gavra, and from that it follows that the other prohibitions of the Torah are prohibitions in the hefza. This is therefore a dispute over how to classify the body of Torah prohibitions as a whole, aside from exceptional cases.

Usually, however, we do not find among the commentators a direct discussion of the conceptual question: what precisely is a prohibition in the hefza and what is a prohibition in the gavra? The object of study for the classical commentators is generally not the meta-halakhic concepts themselves. Usually they use those concepts, but do not clarify them as such. As we wrote in the opening letter, one of our principal aims in this year’s essays is to try to clarify those concepts themselves to some degree.

Regarding the distinction between hefza and gavra, however, there are a few exceptional later authorities, apparently because here the meta-halakhic concepts were created already in the Gemara itself and not only by later commentators. We will cite two of them.

Rabbi Shimon Shkop, in his novellae at the beginning of tractate Nedarim, and the author of Responsa Avnei Nezer, Orah Hayyim 37, explain the distinction between hefza and gavra in a very similar way. We cite here part of the words of Avnei Nezer:

…In truth, with respect to any prohibition one can call it either a prohibition in the gavra or a prohibition in the hefza, as one wishes. At first glance the matter is not clear, for every prohibition is prohibited in the object and upon the person.

I long ago heard great scholars struggling with this issue. And in Ritva on tractate Shevuot I saw that all Torah prohibitions are prohibitions in the gavra. At first glance it is astonishing to say of carrion, creeping things, and vermin that they are not prohibitions in the hefza.

What appears to me in this matter is as follows. A prohibition in the gavra is said of an act that damages the standing of the human being, such as creeping things and vermin, as Scripture says, “Do not make yourselves abominable,” and “You shall be holy men,” and “flesh torn in the field.” According to the stature of Israel, carrion and vermin are not fitting for them. That is a prohibition in the gavra. But one who derives benefit from consecrated property, or a non-priest who eats terumah, is the opposite: he draws near to something above his own level. How can a non-priest approach terumah, or an ordinary person the holy things of heaven? That is a prohibition in the hefza, because he damages the object. Therefore a konam, which models itself on a sacrifice and in which there is misuse of consecrated property, is called a prohibition in the hefza. But an oath does not place any sanctity upon the object. One merely profanes his word and his oath and damages his own soul. Therefore it is a prohibition in the gavra. In this way the words of Ritva are well explained.

The conclusion of Avnei Nezer is that the distinction between a prohibition in the hefza and one in the gavra stems from the aim of the prohibition. A prohibition in the hefza is one whose purpose is to protect the object, that is, to prevent its being lowered from its proper standing. By contrast, a prohibition in the gavra usually concerns inferior objects, where the prohibition on the person aims to protect the person, so that he not become defiled or degraded, and not the object. Therefore the prohibitions of creeping things and vermin are prohibitions in the gavra and not in the hefza, even though the Torah forbids us to make use of objects, whether by eating or benefiting from them.

The conclusion is that the distinction between a prohibition in the hefza and one in the gavra belongs to the sphere of the purposes of the prohibition. By contrast, the distinction between prohibitions of action and of result belongs to the sphere of the formal halakhic definition of the prohibition. As we saw in the article on Bereshit, there are connections between these two planes, since the formal definition will usually correspond to the purpose. But if there are constraints, for example where the result is not in our hands, there may be cases in which the Torah separates the purpose of the prohibition from its formal definition.

And indeed, see further on in the words of Avnei Nezer there, where he distinguishes between the hefza-gavra distinction and its halakhic consequences, even though the questioner there had identified the two. As stated, the formal halakhic definition can sometimes be distinct from the purpose, and that is not the place to expand.

Footnotes

The Minhat Hinukh, commandment 35, concludes from here that if a Noahide has intercourse with a married woman in an atypical manner, in which case he does not violate the prohibition of adultery, see Maimonides there, Laws of Kings 9:7, he nevertheless violates the prohibition of theft. That is, every marital bond also has a dimension of theft.

Likewise, in Sho’el u-Meshiv, first edition, part 1, at the end of section 128, it is asked on the basis of these words of Maimonides why the Gemara in Babylonian Talmud, Sanhedrin 58a, cites the verse “and shall cleave to his wife,” and not to another man’s wife. Seemingly it could have derived this from the prohibition of theft. It appears that such a dimension exists in the case of a married Jewish woman as well, beyond the sexual prohibition itself.

True, in monetary law the only point of the act’s effectiveness in transferring the object to the robber is to create the legal incidents of robbery, so that we can hold him liable even for losses beyond his control. That reason does not apply to one who betroths another man’s wife, and therefore it is quite possible that there the betrothal would not be effective even after the fact. See Kovetz Shiurim, Pesahim 18.

Perhaps the explanation is that precisely in these cases we are dealing with a situation in which money that is not mine is in my hands, but it did not come to me specifically through an act of robbery, as in withholding a laborer’s wages, denying a lost object, and the like. That is, the issue here is not the transgression inherent in the act of robbery itself, but the fact that money not mine is in my possession. The “robbery” here is effected through the denial and the oath concerning the money. By contrast, in ordinary robbery there is also a transgression in the act itself, not only in the bare fact that money not mine is in my possession, and that is handled in other legal ways, similar to what we saw above regarding an ordinary married woman, who is not liable to the guilt offering of the designated maidservant even though she too has a dimension of theft and damage to marriage. If so, the limitation whereby one brings a guilt offering only for denial under oath regarding money, and not for ordinary robbery, actually points in the same direction as our proposal: a guilt offering is not brought for sin, but for a situation in which lines and boundaries were crossed by a person who invaded a domain not his own.