The Mundane and the Sacred – Rabbi Michael Abraham – Lesson 2

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[Rabbi Michael Abraham] No, that’s also true, but the question is about a maidservant—whether she’s a gentile or not a gentile. Because a slave, when he is freed, always becomes Jewish. So the question is whether a Canaanite slave is an upgraded gentile or a diminished Jew. That’s an inquiry of Rabbi Akiva Eiger; he claims it’s a dispute between the Babylonian Talmud and the Jerusalem Talmud. In any case, no—I mean this is the only example where, when there is a man who has relations and a woman with whom relations are had, they are not punished with the same punishment. Meaning the man and the woman, meaning the two partners. Usually it’s the same punishment. In any case, for our purposes, the claim is that in fact he does not violate a prohibition, and yet he brings a guilt-offering. So on that the Pnei Yehoshua asks in tractate Gittin, page 43. He says there as follows: “Rav Chisda said: one who is half maidservant and half free woman, who was betrothed to Reuven and was freed,” and so on, “and I do not read concerning her ‘the wife of two dead men’ for death.” The Talmud says… it says that there is no such thing as a woman of two dead men. What is a woman of two dead men? After all, even the wife of one dead man—if he died, then he is no longer her husband. The meaning is that there cannot be a woman who is obligated in levirate marriage from two directions. Meaning that she was married to two men, both died, and both obligate her in levirate marriage. That cannot be, because a woman cannot be married to two husbands. If she is married to one, then the betrothal of the second does not take effect on her—she is a married woman. So there is no wife of two dead men. On that the Pnei Yehoshua asks: “It is difficult for me, because here you do find a wife of two dead men when she was not freed”—the designated maidservant was not freed—“and then she was betrothed again to Shimon.” She is married to her Hebrew slave-master, all right? Now Shimon comes, someone else—this is Reuven, the Hebrew slave, all right? Now Shimon comes and betroths her, even though she is Reuven’s wife. Right? So he says: “Granted that Reuven’s betrothal took effect on her, nevertheless, since one is not liable on account of that betrothal except for a guilt-offering, as implied by Rashi’s commentary as cited by the Rosh, if so it would seem that Shimon’s betrothal also takes effect on her. For we hold that betrothal takes effect in cases of mere prohibitions. And here there is not even a prohibition, only a guilt-offering alone.” If she is married to Reuven, who is a Hebrew slave, this maidservant, this designated maidservant, and now Shimon comes and betroths her—okay? Now if he has relations with her, what has he violated? Nothing, just that he brings a guilt-offering; he did not violate a prohibition. He just brings a guilt-offering. So if that’s so—Shimon, is he also a Hebrew slave? No. So how can he betroth

[Speaker E] her in the first place? Ah, maybe with regard to someone who has relations with her, he doesn’t have to be a Hebrew slave.

[Rabbi Michael Abraham] It could be that with regard to betrothal maybe it still has to be a Hebrew slave. Could be—I need to look there. You may be right. In any event, the claim is that the rule is that betrothal does not take effect in cases punishable by karet, in forbidden sexual unions. Meaning, if someone betroths his sister, or a married woman, or his mother, then the betrothal does not take effect at all. By contrast, if a priest betroths a divorcée, where it is only a prohibition, not an illicit sexual union, right? There the betrothal does take effect. That’s a dispute involving Rabbi Akiva, yes, but in practice we rule that betrothal does take effect in cases of mere prohibitions. Okay? So if in cases of mere prohibitions betrothal takes effect, here with a designated maidservant there isn’t even a prohibition—it’s only a guilt-offering. So certainly the betrothal takes effect. And what follows? That after the second one betroths her, she is in fact the wife of two men. Right? Married to two. So why do they say there is no wife of two dead men? There is a wife of two dead men. Here—this designated maidservant, where an additional man came and betrothed her. That’s the Pnei Yehoshua’s question. So he says: “And it seems to me, in my humble opinion, to resolve this, that what we hold generally—that betrothal takes effect in cases of mere prohibitions—means ordinary prohibitions. But not here. And in any case, you cannot find one betrothal after another, because once Reuven’s betrothal has taken effect, she is under his authority and has no capacity to receive betrothal from another. So it seems to me.”

[Rabbi Michael Abraham] I once gave a lecture on the Pnei Yehoshua—there was some conference at Bar-Ilan on the Pnei Yehoshua—and the title of the lecture was “Brisker Beginnings in the Pnei Yehoshua.” Meaning, this sort of yeshiva-style analytical thinking in the Pnei Yehoshua. He has a few very beautiful examples, even though generally speaking he’s really not that type. But there are several examples in the Pnei Yehoshua where you can really see an analytical breakdown that could have appeared in Rabbi Chaim. And this was one of the examples I brought. What he is basically saying is this: why does betrothal not take effect in forbidden sexual unions? Betrothal does not take effect in forbidden sexual unions because of the severity of the prohibition. Therefore, in cases of mere prohibitions, where the prohibition is less severe, the betrothal does take effect. You commit a transgression, but the betrothal still takes effect after the fact. A married woman as a forbidden union is exceptional. In the case of a married woman, the reason betrothal does not take effect is not because of the severity of the prohibition—not only because of the severity of the prohibition. That too plays a role, but not only that. It is simply because she is someone else’s wife. She has no legal capacity to receive betrothal—“no hand to receive betrothal” is a metaphorical expression; it doesn’t mean that the act of betrothal physically cannot be performed. It means it simply does not apply to betroth someone who is already another man’s wife. She is not available; she is not on the market.

[Speaker F] The “hand” maybe represents authority or power.

[Rabbi Michael Abraham] Yes. Meaning, she isn’t in the marriage market. She is already married—what do you want? She is not a candidate. You cannot betroth someone who is already someone else’s wife. So that is the assumption. And therefore, betrothal does not take effect in the case of a married woman not only because of the severity of the prohibition, but because of the very fact that she is someone else’s wife. You cannot betroth another man’s wife. So if that’s the case, says the Pnei Yehoshua, where is the practical difference? In the case of a designated maidservant. Because in the case of a designated maidservant, she is another man’s wife, but there is no severity of prohibition—there isn’t even a prohibition. So true, if the only issue were the severity of the prohibition, then the second betrothal would take effect on her. But here the problem is that she is another man’s wife, so betrothal does not take effect even though there is no prohibition, because she is another man’s wife. And therefore the betrothal does not take effect, and there is no wife of two dead men even in the case of a designated maidservant. There too, you cannot… it is impossible to arrive at a wife of two dead men. And the Avnei Miluim disagrees with him here on this issue, but that is his claim.

[Speaker G] What do you mean? He says that you can betroth her a second time?

[Rabbi Michael Abraham] What? He argues that there is no such principle that betrothal does not take effect because she is another man’s wife. It’s only the severity of the prohibition. And therefore in the case of a designated maidservant, in principle it ought to take effect. And what the Talmud says—that “we did not find a wife of two dead men”—someone here points this out also regarding the author in the next edition; it’s actually the Pnei Yehoshua himself in his later edition who notes this—that his whole difficulty is based on a very specific understanding of “we did not find a wife of two dead men,” “I do not read concerning her ‘wife of two dead men.’” The understanding he assumes is that there cannot be a state of a wife of two dead men. But there are other interpretations. There are interpretations that say: “I do not read her as a wife of two dead men,” but not that there cannot be a reality in which a woman is the wife of two dead men. The claim is rather that the wife of two dead men cannot have a levirate bond in both directions. That is what cannot be, but not that it is impossible for her to be the wife of two dead men. In any case, according to the Pnei Yehoshua, what comes out is that with a designated maidservant—why indeed does betrothal not take effect with her? It does not take effect because she is outside the domain. Not because of the prohibition; it has nothing to do with the prohibition at all. Because in reality there is already upon her, as it were—let’s call it a legal status; not a status of prohibition, because it does not express itself in the form of a prohibition—but she is outside the range. Meaning, there is something in reality that I cannot penetrate. It is not a prohibition stopping me; some kind of reality is stopping me. Therefore one brings a guilt-offering for a designated maidservant. A guilt-offering for a designated maidservant is brought even though there is no prohibition. So why bring it? As I said, because a guilt-offering is not brought for the prohibition. A guilt-offering is brought for the result. If you penetrated a domain that is not yours, that obligates you in a guilt-offering even if you did not commit a prohibition. It is unrelated. If you entered a place you are not supposed to be in—even if the Torah does not prohibit it explicitly, but it is a place you are not supposed to be in, it is another domain—for that you bring a guilt-offering. That is basically the claim.

[Rabbi Michael Abraham] There is a formulation in Maimonides, chapter 9, law 14 in the Laws of Kings. Maimonides writes as follows: “And how are they commanded concerning laws? They are obligated to appoint judges and magistrates in every district and district to judge regarding these six commandments”—yes, the Noahides who are commanded concerning laws—“and to warn the people. And a Noahide who violated one of these seven commandments is executed by the sword. And for this reason all the people of Shechem became liable to execution, for Shechem robbed, and they saw and knew and did not judge him. And a Noahide is executed on the testimony of one witness, with one judge, without prior warning, and on the testimony of relatives, but not on a woman’s testimony, and a woman does not judge.” Fine, that’s already another whole topic. So what does he say? “Shechem robbed, and they saw and knew and did not judge him.” What is “robbed”? He did not rob. He committed adultery, or whatever he did. Meaning he took Dinah against her will and had relations with her. So why the language of robbery here? There are several later authorities who infer from Maimonides that in the prohibition—also in the case of a married woman, but also with Dinah—it is called stealing from her father. In the case of a married woman, it is stealing from her husband. There is a dimension of theft. Aside from the prohibitory dimension of adultery, of forbidden sexual relations, there is a dimension of theft. Now that very much resembles what the Pnei Yehoshua says: beyond the prohibition, which is a prohibition of forbidden sexual relations, basically a matter between man and God and not between man and fellow man, there is here some kind of invasion into a domain that is not yours, just as in theft regarding someone else’s property, someone else’s money. Indeed, from here some infer a principle very similar to that of the Pnei Yehoshua. And in fact concerning a woman who commits adultery, the Talmud says, “and she commits a trespass against her husband.” Meaning that when a woman betrays, commits adultery with someone else, this is called misuse of sanctity. Why is it misuse of sanctity? Because just as misuse of sanctity transfers something from sacred to ordinary, so too she damages… she belongs to the husband’s domain, and when she commits adultery she damages that domain. Meaning of course there is a prohibition of forbidden sexual relations here, but beyond that the Torah also relates to this as misuse of sanctity. What is the connection? Misuse of sanctity is like theft, only theft from consecrated property.

[Speaker H] Betrothal is holiness, and the misuse damages the holiness.

[Rabbi Michael Abraham] We talked about this last time, right? With “spreading holiness through all of it.” That’s in a moment, but yes. And this is some other domain—which is exactly the holiness of betrothal. Why is it called holiness? Because you establish some kind of domain; the family unit basically creates a certain boundary. And now one cannot enter it. That inability to enter is not because of a prohibition, as the Pnei Yehoshua says, but because there is a fence around it. And that is what is called holiness. Therefore it is called betrothal. Betrothal comes from the root holiness, as I discussed with Tosafot in tractate Kiddushin page 6, there, with “he spread holiness through all of it.” So the claim is that betrothal is called that because when I betroth the woman, beyond the prohibitions that are generated for anyone who has relations with her, some change in reality is created here. Now some new domain is formed here—this family unit, this couple—that cannot be penetrated. It is forbidden to penetrate it. Now, forbidden only—no, it cannot be penetrated, not just forbidden. Meaning, “forbidden” is a prohibition, but penetrating it is itself a problem. In principle, anyone who commits adultery with a married woman ought to have to bring a guilt-offering, not only in the case of a designated maidservant. Except that there there is also the punishment because there is also a prohibition in addition to the invasion. So that punishment presumably also deals with the dimension of guilt-offering. I am offering a suggestion as to why there is no guilt-offering in every case of a married woman. Where is there a guilt-offering? Only in a married-woman-type case where all that exists is the delimitation without the prohibition, namely the designated maidservant. Therefore there is a guilt-offering for a designated maidservant. That is basically the claim.

[Rabbi Michael Abraham] Let me perhaps give another example of this matter. There is a famous responsum of the Maharik, root 167, which is also brought as Jewish law in the Rema in Shulchan Arukh, Even HaEzer 178. And the Rema writes there as follows: “Regarding what Mahari”l asked about a woman who committed adultery under her husband willingly”—sorry, not this is the Maharik; yes, it is brought in the Rema, but here the wording is that of the Maharik—“regarding what Mahari”l asked about a woman who committed adultery under her husband willingly, and she did not know whether there was a prohibition in the matter—whether she is considered accidental.” She did not know that it is forbidden to commit adultery. Is she considered accidental? After all, the Mishnah in the chapter Klal Gadol says there are two kinds of accidental transgression. There is an error about the facts—I don’t know that today is the Sabbath. And there is an error about the law—I don’t know that it is forbidden to do this on the Sabbath, forbidden to trap, forbidden to sort on the Sabbath. An error about the facts and an error about the law—two kinds of error. Now, a married woman who committed adultery—we are not talking about the wife of a priest, but the wife of an ordinary Israelite who committed adultery—becomes forbidden to the husband and to the adulterer. But she becomes forbidden only if it was deliberate, not if it was accidental. If it happened accidentally, then no. For a priest, yes—even under coercion—but for an Israelite, no; only if deliberate. So on that the Maharik, or Mahari”l whom he cites, was asked: what happens if she committed adultery but with an error of law, not an error of fact? There is some initial thought here to distinguish between an error of law and an error of fact, when throughout Jewish law there is no difference. There is no difference; an error of law and an error of fact are both accidental acts, both require a sin-offering; it is all the same.

[Speaker I] Why not say that such an error is like deliberate action? What? Why not say that such an error is like deliberate action?

[Rabbi Michael Abraham] She did not know that it was forbidden—how is that different from any other error of law? No, she didn’t know, so what…

[Speaker H] The women in Safed?

[Rabbi Michael Abraham] What, with the rabbi—what’s his name—Shmuel? What about them?

[Speaker H] That he appointed them, saying it was permitted?

[Rabbi Michael Abraham] Fine. In that specific case there is a responsum by Rabbi Daichovsky on that—a fascinating responsum by Rabbi Daichovsky on this issue. He really argues there that they are not forbidden to their husbands because of that. Because there there really is some sort of error—an error of fact and not… how did it go there? An error of law—no, not an error of law, an error of fact. I don’t remember exactly. He has some argument. He says that it too has the status of an accidental act—no, like an error of law, not an error of fact. And an error of fact—an error of fact, sorry. An error—an error of law does not make her forbidden to her husband. Does it not make her forbidden to her husband?

[Speaker J] What? An error of law does not forbid her? That’s the question right now. No—yes, an error of law does not forbid her to her husband. An error of fact of course… no, an error of law does forbid her to

[Rabbi Michael Abraham] her husband—sorry, an error of law does forbid her to her husband. An error of fact does not forbid her to her husband. And Rabbi Daichovsky argues that what happened there was like an error of fact, and therefore it does not forbid her to her husband. He has an interesting argument there. I once heard it orally, but he said that he also wrote a responsum on it. He has a book of articles; this is one of the articles there. That’s what is written. In any case, the Maharik argues: “In my humble opinion, it seems that this woman does not have the status of one who acted accidentally so as to permit her to her husband.” That is, an error of fact permits her to her husband. About that the rule was stated that if it was accidental, the woman is not forbidden to her husband. “Since she intended to commit a trespass against her husband and to prostitute herself under him. For Scripture says: ‘If any man’s wife go astray and commit a trespass against him’—so that it should be understood specifically when she intended the prohibition? No, rather ‘and commit a trespass against him’ is written.” She trespasses against her husband. What is he basically saying? He is saying this: if the woman does not know that this is not her husband—say she has relations with someone and it is dark, and she does not know, she does not notice that it is not her husband, she thinks it is someone else. Some situation; the details do not matter right now. That is an error of fact.

[Speaker B] Yes, an error of fact.

[Rabbi Michael Abraham] In an error of fact, he says, she is not forbidden to her husband. About that the rule was said that in an accidental case the woman is not forbidden to her husband. But if there is an error of law, then she knows that she is having relations with someone who is not her husband, only she does not know that this is forbidden. What difference does it make whether she knows it is forbidden or not? Bottom line, she committed a trespass against her husband. In the end she harmed the marital bond between them. Now that marital bond between them is not about the prohibition; of the prohibition she did not know. That is not where the problem lies. Exactly what I said before—the problem is the delimitation. She damaged the holiness, this sphere that was supposed to be closed to everyone else, the sphere of the couple, of the marital unit. And that is a trespass against the husband even if she did not know the prohibition. It has nothing to do with the prohibition; it has to do with the fact that apparently she no longer wants the marital unit with her husband. She shattered the marital unit. What difference does it make? She thinks it is permitted to shatter the marital unit—because it is permitted, did she not shatter it? She still shattered it. In an error of fact, she did not mean to shatter the marital unit at all; she thought it was her husband. So fine—accidental, all right—then she is not forbidden. But if it was an error of law, then she intended to shatter the marital unit, only she did not intend to do it through a prohibition. So what? Bottom line, she shattered the marital unit. So once again we see the same principle: in betrothal, between husband and wife, there is some dimension beyond prohibition. The point is not only the prohibition. Rather there is something—a social institution, call it that, or a certain domain—that Jewish law recognizes not because it is forbidden to break into it, but because it is another domain; you are not supposed to be there. It is not your domain, not because of the prohibition involved. A bit similar to Rabbi Shimon with the theory of legal structures in monetary law. Maybe we’ll get to that later.

[Rabbi Michael Abraham] So basically this means that the guilt-offering of the designated maidservant is altogether just an expression, or a practical consequence, of something that exists in every case of a married woman. In principle, in every case of a married woman there are two dimensions: the dimension of prohibition and the dimension of delimitation. Rabbi Gustman—I mentioned him regarding betrothal and holiness in the opening lecture on Kiddushin—there he goes on at length, but there he claims that “behold, you are betrothed,” “behold, you are espoused,” “behold, you are mine as wife”—these are the three formulations of betrothal. I said he makes some distinction there between the formulations, and he really wants to argue that one of them imposes holiness, the second imposes prohibition, and the third—I no longer remember. There are three things there, according to him, in every married woman, only the question is in what order they take effect. In what order they are applied. Every kind of act of betrothal starts from a different aspect that exists between husband and wife and imposes it, and the other two then follow in its wake. And there he makes a distinction, if I remember correctly, between the dimension of prohibition and the dimension of holiness. I think so, because he lays out three laws there. I do not remember; I need to look there again. I just remembered it now. In any case, every married woman contains these two dimensions, but the implication arises very clearly with a designated maidservant, because with a designated maidservant there is no dimension of prohibition, so what remains is only the dimension of delimitation. And therefore there the guilt-offering is brought. The guilt-offering of a designated maidservant is the first example where one can show, once again—at least according to the Pnei Yehoshua and the conceptions I presented here—that the guilt-offering of a designated maidservant comes for invading a domain that is not yours, irrespective of prohibition, even if there is no prohibition.

[Speaker C] What if it is done with permission? What? If it is done with the husband’s permission?

[Rabbi Michael Abraham] We discussed that once. I think you asked about it on the site once—there was some question on the site. I think it does not matter, because it is still breached. So the husband breaches the domain just like the woman does, and it is still breached, like the Maharik says. In the end it is breached; that is what matters. If you do not want a marital unit with the woman, then you don’t have a marital unit with the woman.

[Speaker C] But if you compare it to property, then if I permit someone to use my property, that’s fine. He didn’t steal; he didn’t use it without permission.

[Rabbi Michael Abraham] Obviously—not theft and nothing of the sort. But then that property is no longer mine. He took it, he used it.

[Speaker C] No, I permit him to use it, but not to own it.

[Rabbi Michael Abraham] Fine, but that use is already not mine. I don’t care. Then those fruits are not mine. If it is consumptive use, like eating an orange, then it’s not mine at all anymore. But if it is a hammer—use it and return it—then the uses of the hammer at those moments are not mine. You gave them to him. But with a woman it is not like that. Because with a woman, if you claim that you can give her, then maybe there is no problem—but bottom line, she is not yours. So you breached the boundary in any case. Just as with the woman—when she intends it, she doesn’t know there is a prohibition but she intended to break the marital unit—then it is broken. It is not because of the prohibition, but simply because there is no marital unit anymore. A marital unit must be exclusive. Meaning, only this couple. And once you broke it, then it no longer exists. It doesn’t matter whether you are guilty or not guilty, whether it was with your consent—that’s not the issue. The problem is not that it violated your wishes. The problem is simply that there is a boundary here that has been breached.

[Speaker K] There is some side of Jewish law in what this fellow here brought up just now—that if it wasn’t against her husband, then she is not forbidden. There was also some story with a marriage counselor or something like that, where he said that something she did not do against her husband does not forbid her.

[Rabbi Michael Abraham] Yes—that if her husband agrees, then that is interesting.

[Speaker K] Because you’d have to look into it, but it wasn’t her husband’s agreement. Because it wasn’t done in order to commit adultery or anything like that.

[Rabbi Michael Abraham] In terms of intention?

[Speaker K] Yes. That was more or less her wording there.

[Rabbi Michael Abraham] Do you have the source?

[Speaker K] Can you find it?

[Rabbi Michael Abraham] I’ll find it. I remember it. I’d be happy to see it.

[Rabbi Michael Abraham] So that is the guilt-offering of the designated maidservant. The next guilt-offering is the guilt-offering for misuse of sanctity. The guilt-offering for misuse of sanctity challenges this conception a bit. Why? Because misuse of sanctity applies only accidentally. The guilt-offering for misuse of sanctity is brought only for an accidental act. The prohibition of misuse of sanctity exists also deliberately. One who deliberately misuses sanctity violates a prohibition, but he does not bring a guilt-offering. A guilt-offering is brought only for an accidental act. How does that fit with this thesis that a guilt-offering is brought for both deliberate and accidental acts, as I said before? That is what Rashi writes—that guilt-offerings apply to both deliberate and accidental cases. What, Rashi didn’t know that the guilt-offering for misuse of sanctity is brought only accidentally? Just a plain difficulty on Rashi. The way I explain it, it works perfectly. Because the claim is that a guilt-offering comes for both deliberate and accidental acts—not literally that it comes for both, but that it comes for the result. Therefore it does not matter whether you were deliberate or accidental. That is basically how I explained Rashi there. If so, then everything is clear. Because in misuse of sanctity there is a rule that if you misused sanctity accidentally, it passes into ordinary status. There is no second misuse after the first misuse. Yes, if you performed the first misuse, then it is no longer sacred. So the second person no longer commits misuse, because it is already no longer sacred. But deliberately, there is misuse after misuse. If you commit misuse deliberately, it does not pass into ordinary status. Now someone else can come and misuse it again, and he commits misuse, because it remains sacred. So this has nothing at all to do with the laws of guilt-offerings. It starts with the question of when the sacred object passes into ordinary status. And there is a rule, for whatever reason—we need not discuss it now—that only accidentally does it pass from sacred to ordinary. Consequently, only for an accidental act will there be a guilt-offering. Why? Because, after all, the guilt-offering is brought for the result, not for the prohibition. The prohibition exists both deliberately and accidentally—that is true. But the result happens only accidentally. So the very same principle by which Rashi says that a guilt-offering applies to both deliberate and accidental acts is what says that the guilt-offering for misuse of sanctity applies only accidentally. It is not a contradiction. On the contrary, that is exactly how it must be. And because what Rashi means is not really that it applies to both deliberate and accidental acts, but rather that this is only an expression meaning that it comes for the result. Therefore I do not care whether you acted deliberately or accidentally, because it does not depend on the person. That is true also in the guilt-offering for misuse of sanctity, only that there the result happens only accidentally. Therefore you bring a guilt-offering only accidentally. So this is not a law from the laws of guilt-offerings; it is a law from the laws of misuse of sanctity, that misuse happens only accidentally. In the laws of guilt-offerings, the rule is that they come whether for deliberate or accidental acts. Whenever the result occurred, bring a guilt-offering. Of course if the result occurred. But

[Speaker B] if in the context of misuse of sanctity there is such a rule that only

[Rabbi Michael Abraham] accidentally the result occurs,

[Speaker B] then you won’t bring a guilt-offering for a deliberate act, not because a guilt-offering is not brought

[Rabbi Michael Abraham] for a deliberate act, but because there is nothing for it to be brought for. The result did not occur deliberately. That is from the laws of guilt-offerings, not from the laws of misuse of sanctity. Okay? And if a result occurred deliberately? How did it occur? In misuse of sanctity that doesn’t happen. Deliberate misuse of sanctity does not pass into ordinary status. No, it does not pass into ordinary status. It passed into the person’s benefit. A person ate an entire sacrifice. It did not pass into ordinary status. It did not pass from one domain to another. It does not exist in another domain. It disappeared. Like I once discussed before—I think I once discussed the Talmud in Nedarim page 29, about Bar Pada there, that sanctity of the body does not expire on its own. I think I mentioned that at some point. And there the dispute between Abaye and Bar Pada is whether one can impose bodily sanctity for a set time. Say I consecrate something with bodily sanctity, the sanctity of a sacrifice, for a week. Or I consecrate it on condition that if something happens, the sanctity will lapse. Bar Pada says there is no such thing—bodily sanctity does not expire on its own. But Abaye says that it does—bodily sanctity can expire on its own. So the Rashba asks… the Rashba asks in tractate Beitzah page 30. The Talmud there says that there is an analogy between the festival offering and the sukkah: “a festival for God,” so too “the sukkah is for God,” and therefore it is forbidden to make use of the wood of the sukkah. And the Talmud discusses there whether one can say “I do not separate myself from them,” that is, make a condition regarding the sanctity of the sukkah wood. So the Rashba asks: what do you mean? How can the Talmud—and the conclusion is that one cannot. This is a dispute among the medieval authorities (Rishonim) as to what conditions can be made; it doesn’t matter now, there are debates there—but in principle the Talmud says that one cannot stipulate a condition regarding sukkah wood. So the Rashba asks: what do you mean? Then how does Abaye fit with this? Abaye says that one can make a condition regarding bodily sanctity. And this whole law of sukkah wood is obviously like bodily sanctity. Why does the Talmud in Beitzah say so simply, or—this is a dispute among Amoraim—why does the Talmud in Beitzah say so simply that one cannot make such a condition? True, the Jewish law follows Bar Pada, but still one might have said that the Amoraim disagree about this. That is the Rashba’s difficulty. There are all kinds of assumptions here that are very far from simple—in fact this Rashba is a lone opinion, and all the views there disagree with that difficulty—and that is how he asks it. And I was very puzzled by this Rashba, because why does he go there? Let him ask on Bar Pada. He asks on Abaye, who says that bodily sanctity can expire on its own: if so, why can’t one stipulate a condition regarding sukkah wood? I ask on Bar Pada. Bar Pada says bodily sanctity does not expire on its own—so how is it that after eight days the sukkah is no longer sacred? Once the festival of Sukkot is over, do whatever you want with the boards. There is no prohibition to use the boards. After all, one cannot impose bodily sanctity for a set time. A condition and a set time—those are the two examples over which Abaye and Bar Pada argue. So he asks Abaye from the case of a condition, and I ask Bar Pada from the case of time. Either way, you see that this has nothing to do with sanctity at all. But the Rashba insists that it does. So what does the Rashba say about that? My claim is that after eight days it is not that the sanctity of the sukkah expires—the sukkah expires. There is no sukkah. After eight days it is a pergola. It is not a sukkah. The sukkah’s sanctity is eternal. But after eight days there is no sukkah here; it evaporated. Think of a sacrifice, all right? There is a sacrifice sanctified with bodily sanctity. After two days the sacrifice evaporates for some reason—I don’t know, Hogwarts came along, right? They did a magic spell and the sacrifice disappeared. There is no sacrifice anymore. Fine? Does that contradict the claim that bodily sanctity does not expire on its own? Obviously not. The sanctity did not expire; the object disappeared. There is no object. The sanctity, so long as there is an object, will remain on it. You cannot just blow the sanctity off the object. But if the object itself disappears, then fine—what can you do? The object disappeared, not the sanctity. That can happen. There is no rule that an object with bodily sanctity cannot disappear. There is a rule that you cannot just make the sanctity fly off it after two days or by force of a condition. Fine? I didn’t make anything fly off; the object disappeared. The same with a sukkah. After eight days the sukkah is not a sukkah; it is a pergola. It looks the same of course, but it is not a sukkah. In the sukkah, time contributes—now I remember. I spoke about time at some point. There was some series on time, wasn’t there? Yes, yes. There in the series on time I brought this up. Because here time plays a role in defining the object. I brought several examples there: tefillin in the Achiezer and a few other examples, the Or Sameach on terumah. So why did I bring all this?

[Speaker B] If the sacrifice is completely eaten—what you said now about how sanctity does not expire, if one after another while sanctity still remains—but I said if the sacrifice disappears completely, if let’s say—

[Rabbi Michael Abraham] If the sacrifice disappears, then there will be no sanctity, correct. So why did I need to say this? I don’t remember.

[Speaker B] No, one of you asked—when the sanctity does not pass to ordinary status it disappears, that’s what—

[Rabbi Michael Abraham] what’s nice here, the object disappears and so on.

[Speaker B] when it was asked—

[Speaker K] Also in a case where a person eats deliberately, then part of the object disappears.

[Rabbi Michael Abraham] Exactly. Your question. You’re saying that if I ate the object, then what do you mean? Obviously it won’t remain sacred any longer. What I argued is that if you ate the object, it is not that it is no longer sacred, but that there is no longer any object. That can happen even with bodily sanctity. And certainly Bar Pada also agrees that this can happen. What cannot happen is that the object remains here and the sanctity flies away. That cannot happen. So basically the claim is that the guilt-offering for misuse of sanctity is actually excellent evidence for my claim. Not only is it not a contradiction—on the contrary. Without my claim, the guilt-offering for misuse of sanctity stands head-on against what Rashi says. Rashi says that guilt-offerings apply both in accidental and deliberate cases—so why is the guilt-offering for misuse of sanctity only for accidental cases? But if I explain that what Rashi means—that guilt-offerings apply both in accidental and deliberate cases—is not because of accidental and deliberate at all, but because a guilt-offering comes for results and therefore I do not care whether you committed the transgression deliberately or accidentally—if so, then there is no problem, and it is perfectly clear why the guilt-offering for misuse of sanctity applies only accidentally: because only accidentally is there a result. And what is the result? There was sanctity, and the sanctity is in the object, as I said before, and once you commit misuse you have broken into the sanctified domain, the domain that ought to have been fenced off from you. You knocked down the walls, basically; you broke the fence—“the walls of my towers have been breached.” And therefore you bring a guilt-offering. That is the guilt-offering for misuse of sanctity. It is a breach in the fence; it is not for the prohibition. My claim is that the guilt-offering for misuse of sanctity does not come for the prohibition of misuse of sanctity. It does not come for the prohibition of

[Speaker B] misuse of sanctity.

[Rabbi Michael Abraham] Seemingly you also have to pay principal and an additional fifth—you pay principal and an additional fifth. But the guilt-offering comes for the breach into a domain that is not yours. Yes, because the principal and the fifth are basically… the principal is like returning stolen property, because misuse of sanctity is a kind of theft from the sacred. There is a discussion among the later authorities whether the theft is a result or whether the theft is the core of the prohibition and the prohibition is the result of the theft. But I want to argue that neither is the result of the other, but that both exist. Meaning, there is the dimension of theft in misuse of sanctity, because you stole something belonging to the sacred. So for that, first of all, you return the theft—that is the principal. And because you stole from the sacred, you also pay an additional fifth, because it is also a prohibition. So that is the punishment. But what does the guilt-offering come for? Breach. The guilt-offering comes for breaching a domain that is not yours, exactly like the guilt-offering for the designated maidservant. Therefore I say that all guilt-offerings are guilt-offerings for a result—that you broke into something that has around it something in the object, a legal status in the object, that you are not allowed to enter. Not for the transgression that the person committed, but for the object. For that a guilt-offering is brought, unlike a sin-offering.

[Speaker B] I’ll bring you two—why is a sin-offering not brought in such a case of the transgression of misuse of sanctity accidentally? No, I’m asking, seemingly why not? After all, in the end you did commit a transgression.

[Rabbi Michael Abraham] Aside from the fact that not for every transgression is a sin-offering brought—only for a transgression whose deliberate violation carries karet is a sin-offering brought. Only very few transgressions have a sin-offering; most transgressions do not have a sin-offering for accidental violation. I’ll bring you two strong proofs, or strong implications, though less as implications and more as proofs. One implication is blessings over enjoyment. We talked about this when we discussed logical reasoning. The Pnei Yehoshua and the Tzelach—we talked about this in the Talmud in Berakhot. And I brought there Rabbeinu Yonah’s students, who—and again it is the Pnei Yehoshua there, doesn’t matter. Rabbeinu Yonah’s students say that one who eats without a blessing must bring a guilt-offering—a guilt-offering for misuse of sanctity. Now in the Talmud it says: one who eats without a blessing is as though he committed misuse of sanctity. You understand—“as though he committed misuse of sanctity” is a metaphor, meaning it is improper. After all, it is a rabbinic prohibition. The Pnei Yehoshua argues that it is logical reasoning, and the Tzelach says fine, it is logical reasoning, but it is still a rabbinic prohibition. We discussed this when we talked about logical reasoning. But Rabbeinu Yonah’s students say that he brings a guilt-offering. How can he bring a guilt-offering? That would be unconsecrated animals in the Temple courtyard. There is no prohibition. The prohibition is a rabbinic prohibition if you ate without a blessing. How can you bring a guilt-offering? And the answer is that in order to bring a guilt-offering you do not need a prohibition. You invaded a domain that is not yours. You invaded something that is, as it were, God’s—the food. So long as you have not recited a blessing, you are basically eating something that does not belong to you; it is like stealing, like taking something that is not from your domain. For that you bring a guilt-offering. There is no source for this in the Talmud anywhere. It says there “as though he committed misuse of sanctity”—that is the only source there is. That’s it. In fact, later on it says “committed misuse of sanctity,” not “as though he committed misuse of sanctity,” but in one place it says “as though,” and then some baraita is brought where it says “committed misuse of sanctity,” or vice versa—I no longer remember who says “as though” and who does not—but in the context it is fairly clear that everyone understands it figuratively; it does not mean actual misuse of sanctity. So where did misuse of sanctity here come from? Rabbeinu Yonah’s students decided that there is misuse of sanctity here. I think that beyond the language of the Talmud, they understood it from logic. Once you invade a domain that is not yours, and there is logical reasoning that this domain is not yours—meaning this is not some rabbinic enactment; it begins with the fact that the domain is not yours. Now the Sages come and determine that in order for you to enter there, you have to recite a blessing. Fine. But this foundation—that the domain is not yours—is a Torah-level foundation; meaning it exists in reality. It is simply not yours. It is outside your range. Therefore if you break in there, you bring a guilt-offering. You do not need a source for that.

[Rabbi Michael Abraham] Let me give you another example, which also belongs to the guilt-offering for misuse of sanctity, and this is a real puzzle: misuse of sanctity regarding konamot. The Talmud in several places says that one who violates a vow—he says, “This thing is forbidden to me as a konam,” and he violates the vow—is liable for a guilt-offering. There is no source for this anywhere. No verse, no derivation, nothing. Not that I am such a great expert, but the Mishneh LaMelekh was enough of an expert, and he said this. He is troubled by it; he says he does not understand where this whole matter of misuse of sanctity regarding konamot came from. What is this invention? Is this some kind of consecrated property? Is a vow sacred? It is not sacred, as I discussed before. What does this have to do with misuse of sanctity? Misuse of sanctity means transferring an object from sacred to ordinary. But here you are using something that you are forbidden to use—that is a prohibition, not sanctity. So what is this whole idea of misuse of sanctity regarding konamot—bringing a guilt-offering? The prohibition is “he shall not profane his word,” and for that you get lashes, for the prohibition. Therefore this is unrelated; the guilt-offering does not come for the prohibition. Even where there is a prohibition, the guilt-offering does not come for it. For the prohibition you get lashes; for the prohibition you get lashes. But the guilt-offering you bring for the fact that you breached a domain that is not yours. And why? Because as I said before, vows are a rule in the object, unlike oaths. There is no guilt-offering for misuse of sanctity for violating an oath. There is a guilt-offering for misuse of sanctity in the case of konamot, of a vow. Why? Because a vow is a rule in the object and an oath is a rule in the person, and a guilt-offering is brought even without a prohibition. The prohibition is handled by lashes; it has nothing to do with “he shall not profane his word.” The guilt-offering does not come for “he shall not profane his word.” The guilt-offering comes for the fact that you entered a domain outside your range; you entered a domain that is not yours. And a vow is defined as creating a domain that is not yours—that is the meaning of saying that a vow is a rule in the object. And therefore a guilt-offering is brought there. We see from these two examples, both from blessings over enjoyment—from Rabbeinu Yonah’s students and the guilt-offering there—and from misuse of sanctity regarding konamot, and also from the very sacrifice of misuse of sanctity, the guilt-offering for acts of misuse of sanctity, which is only for accidental acts and so on—from beginning to end we see that the guilt-offering does not come for the prohibition; the guilt-offering comes for the result. Meaning, if the result is that you breached some fence that stood there in reality, then even if there was no prohibition, you bring a guilt-offering. And this is not unconsecrated animals in the Temple courtyard. A sin-offering—if you bring it without having violated a prohibition—that is unconsecrated animals in the Temple courtyard. You cannot bring a sin-offering without violating a prohibition. A sin-offering comes for a prohibition. But if you bring a guilt-offering, you do not need a prohibition. It is not unconsecrated animals in the Temple courtyard, because a guilt-offering comes for a breach. It could be unconsecrated animals in the Temple courtyard if you did not breach a fence and you bring a guilt-offering—but not because there was no prohibition. Because a guilt-offering does not come for the prohibition; it comes for the devastation you caused, the fact that you smashed the fence or blurred the boundary that ought to have been there. That is the devastation that perhaps Nachmanides speaks about in your approach.

[Speaker B] Why in ordinary theft don’t they bring a guilt-offering? Aside from… after all, you invaded your fellow’s domain, and your fellow’s object.

[Rabbi Michael Abraham] So actually, first of all, there is a guilt-offering for thefts. A guilt-offering for thefts is one of the guilt-offerings, but that guilt-offering is for falsely denying a deposit, not for robbery in the sense of “and he robbed the spear.” So here, really, that’s a good question; I don’t have a good answer to it. The claim is that where you have robbery in the sense of “and he robbed the spear,” there is an action here that is an offense. If you merely deny a deposit, the deposit came into your possession permissibly, and now when he comes to claim it, you deny it and repudiate it. That’s the guilt-offering for thefts. I’m already moving to the next stage because you asked, but this really touches on the guilt-offering for thefts. Now, where you performed an act of robbery, there is a problem in the person, not only in the object. Now since the problem in the person has to be dealt with as a prohibition, then they already deal with it like a married woman, as I said, as distinct from a designated maidservant. Why, in the case of a married woman, don’t they bring a guilt-offering? Because the treatment is of the prohibition; since there is treatment of the prohibition, that apparently already covers the aspect of breaking into a domain that is not yours. In the case of the designated maidservant, where there is no prohibition, then there is no treatment of a prohibition, so what remains there is only the guilt-offering; that’s why there you bring the guilt-offering. I want to argue something similar about robbery. When there is the prohibition of “and he robbed the spear,” you are performing a forbidden act, so there has to be treatment of you as an offender as well; it’s not only a problem of the result. And once they treat you as an offender, that should apparently also cover the problem of the result. But where you merely deny under the oath concerning a deposit—deny the deposit and with an oath too, not just deny the deposit, you have to deny it with an oath—then in such a case you really are not performing an act of robbery; there is no offending action here. What there is here is simply the result: your fellow’s money is in your possession. You didn’t take it; you just kept it with you. Your fellow’s money is with you. Here you have purely the going out beyond the boundary without the prohibition, and for that the guilt-offering is brought. Even though there would be room to say that when I rob, I should also have a guilt-offering and they should also deal with the offense, like I argued regarding vows, where the lashes deal with “he shall not violate his word,” and fine—but there are places where the Torah apparently tells us that dealing with the offense also deals with the matter of the result, and there are places where it doesn’t. I don’t know how to determine that; on that I don’t have a good answer. But I think that’s probably the explanation for why here they chose to deal only with this and not with that. I don’t know.

[Speaker C] You could answer that it’s a prohibition repaired by a positive commandment,

[Rabbi Michael Abraham] therefore there is no punishment for the robbery.

[Speaker C] I’m saying therefore there also wouldn’t be a sacrifice.

[Rabbi Michael Abraham] Why wouldn’t there be a sacrifice? What, for a prohibition repaired by a positive commandment there’s no sacrifice? Why?

[Speaker C] Because if you can fix it through a positive commandment, then why would you bring a sacrifice? So if, say, I brought a sacrifice and then fulfilled the positive commandment, then I canceled out the prohibition, so what does the sacrifice become—just ordinary non-sacred property?

[Rabbi Michael Abraham] Ah, you’re saying that the repair takes the place of the punishment, and it also takes the place of the sacrifice. In the case of a deposit, what is there? Okay, and with a deposit why—

[Speaker K] do they bring it? What? With a deposit why also why…

[Rabbi Michael Abraham] With a deposit there’s a slightly different point, because with a deposit you have to swear in order to become liable for a guilt-offering sacrifice. If you merely deny the deposit, you’re not liable. And the later authorities discuss whether the denial in the… what is it that creates liability for the guilt-offering. Is what creates liability the oath that you swore over the denial, or the denial itself, only with the condition that it be under oath, that the denial be significant—I don’t know exactly what. And it could be that this depends on that dispute. Meaning, if you say that the oath is what creates the liability—why, what does that have to do with an oath? After all, not for every oath do you bring a guilt-offering. The oath is an act of taking. That’s how one takes. Meaning, if I just deny it, then I didn’t perform an act of taking. It came to me permissibly; I’m just not giving it back to you. Right? But if I swear over it that it’s not yours, that is already considered to have the status of performing an act of taking. And then there is actually an element of action here. But if you say that one is liable only for the fact that I deny, and the oath is just a condition, because this is a significant denial, whatever, something like that—then really you’re talking here only about an infringement of boundaries, not about taking, not about the act of taking as there is in ordinary robbery. Okay, so it could be that this depends on that dispute among the later authorities. Okay, so basically the claim is that we saw the guilt-offering for the designated maidservant, we saw the guilt-offering for misuse of sacred property, and also the guilt-offering for thefts. Yes, the guilt-offering for thefts—and actually, in the course of answering you, the guilt-offering for thefts is the same thing. The guilt-offering for thefts—basically, in principle one should have had to bring a guilt-offering for every robbery. Because robbery is intrusion into a domain that is not yours. Now, it’s a good question why this is brought only for someone who denies a deposit with an oath, and not for every robber. And what I said earlier: it could be that the element of prohibition also deals with this matter. Maybe what you’re saying could be right, that the repair by a positive commandment does this. But with the oath concerning a deposit as well—there too, well, I’m saying, it could be that there it is not repaired by a positive commandment. Fine, I don’t know whether denial under the oath concerning a deposit is also repaired by a positive commandment, because it could be that once you swore, then even if you return it you don’t repair the fact that you swore. It depends on the dispute I mentioned earlier. I don’t know. There’s room to discuss it. Now regarding what also applies to thefts, as I mentioned earlier as well, exactly like with a married woman, with thefts this is the famous principle of Rabbi Shimon Shkop: that the prohibition “you shall not rob” is really only a second story. Underneath it and at its foundation there is also a first story: you are forbidden to enter a domain that is not yours. And there are situations in which there will be no prohibition of “you shall not rob,” and yet there will still be a legal prohibition of robbery—for example, robbing a gentile. Robbing a gentile: there is a dispute among the medieval authorities (Rishonim) whether it is prohibited by Torah law or not prohibited by Torah law. Rabbi Shimon Shkop says: even according to the one who says that it is not prohibited by Torah law, it is prohibited by Torah law. But it is prohibited on the legal plane. It is a legal prohibition; it is not a halakhic / of Jewish law prohibition. There is no “you shall not rob” here. But there is a legal layer that says that if this money belongs to someone else, you are forbidden to take it. Why? Exactly what I’m saying here: because it is outside your boundary. Not because of the prohibition; on the contrary, the prohibition perhaps comes because of that. But this thing exists even without the prohibition; it precedes the prohibition. That is the foundational dimension in the prohibition of robbery. This is in Sha’arei Yosher, where he elaborates on this matter and resolves various difficulties with it. And that is basically his claim. And then what that basically means is that the prohibition of robbery—and I mentioned this also in Maimonides, when Maimonides writes about Dinah, that he robbed Dinah, the condition is that he removed her from her father’s domain. Meaning, robbery is removal from a domain even before the prohibition. There may be a prohibition there—perhaps also a prohibition of sexual relations; if she was unmarried then it’s not entirely clear how forbidden that is—but even when there is a prohibition, the dimension of robbery is not connected to the prohibition. The prohibition is one issue, say in the case of an ordinary married woman. So there is a dimension of robbery and a dimension of prohibition; those are two different things. It’s not because of the prohibition. There is a dimension of robbery. What is the robbery? That you intruded into a domain that is not yours. It’s the same with money. With money there is the dimension of the prohibition of “you shall not rob,” and there is the dimension of intrusion into a domain that is not yours. And therefore a guilt-offering for thefts also applies to money. Only still, as you asked, why is that not for every robbery—and that’s what I said earlier—but only for denial of a deposit and with an oath? So that’s what I said earlier. But in principle it should have applied to every robbery.

[Speaker C] Would it also apply in the claim of a thief, or in a claim that it was lost, or in a claim of…

[Rabbi Michael Abraham] No, but for theft there is no guilt-offering.

[Speaker C] No, if I make a claim,

[Rabbi Michael Abraham] I make a claim—it doesn’t matter, thief, lost…

[Speaker C] In a claim of a thief he pays double. And in a claim that it was lost? One who claims it was lost doesn’t pay double, only one who claims a thief. I’m saying, though, it’s similar to denying the deposit.

[Rabbi Michael Abraham] That is denying a deposit. What does that mean? That’s exactly it. What is denying a deposit with an oath? They deposited it with me, I’m a guardian, they come to claim it from me, I deny it and swear. After all, we’re talking about a Torah-level oath. What Torah-level oath is there concerning a deposit that they claim from me? The oath of guardians.

[Speaker C] Okay, just that he denies that they deposited it,

[Rabbi Michael Abraham] So why does he need to swear? When does he swear? He swears only as a guardian. I don’t know, that’s what I think—unless we’re talking about someone who jumped in and swore on his own, just to convince the other person. I don’t know, we’d have to look, but the plain sense is that it’s the same thing, the guilt-offering for the oath concerning a deposit. Okay, so basically it turns out that the first three guilt-offerings, the ordinary guilt-offerings of sin—the guilt-offering of the designated maidservant, the guilt-offering for misuse of sacred property, and the guilt-offering for thefts—these are all basically sacrifices that come for a result. You broke into a domain that is not yours, some kind of actual breach of a boundary, not connected to a prohibition. Sometimes there is no prohibition at all; sometimes there is a prohibition, but it is dealt with in another aspect. The guilt-offering does not deal with the prohibition; rather, it deals with the factual dimension. What remains for us is the provisional guilt-offering, which is brought for cases of doubt. About that I’ll talk next time. I just want to call your attention, in conclusion, to the fact that in light of this there may be more room to understand why there are also guilt-offerings that are not guilt-offerings of sin. It could be because even the guilt-offering of sin doesn’t really come for the sin as such; it comes for something in reality. Now we have to check in the case of the Nazirite and the leper exactly what there is there, but perhaps there too there is some such dimension in which there is no sin, but there is something problematic there—what you asked earlier. There is something problematic here even though it is not a sin, and then the guilt-offering there too is conceptually a guilt-offering of sin. It’s just not a sin in the sense that there is no formal transgression attached to it, but there is something there. A Nazirite, after all, forbids things to himself, so the question is whether that too could be connected to the issue. Maybe yes, maybe no—that already gets into matters of Torah interpretation, I don’t know, say whatever you want. Fine, so that’s just as a comment, and what remains for us is one more provisional guilt-offering, and about that I’ll talk next time—maybe also some interesting interpretation in the Torah that will explain everything.