The Laws of Melachot – Lesson 15

[Rabbi Michael Abraham] Good. In the previous lecture we talked about the concept of unintentional sin. We saw that there are several kinds of unintentionality. There is error in the facts, factual error, and there is error in the law. For example, in the laws of the Sabbath, you can be mistaken about the fact that today is the Sabbath—that’s a factual error—and you can be mistaken about the fact that sorting is forbidden on the Sabbath—that’s a legal error. After that I talked about liability for a sin-offering, and I said that liability for the sin-offering—that is, I brought two possibilities from Afikei Yam about what one becomes liable for a sin-offering on, and how many sin-offerings one becomes liable for, what determines the number of sin-offerings that we bring—and I suggested a third possibility which, in my opinion, is the simplest: that the number of sin-offerings is determined by the number of mistakes. Meaning, you bring the sin-offering for the very fact that you made a mistake, not for the act that you performed on condition that you were acting unintentionally. The accepted conception is that liability for a sin-offering comes for the transgression. If you acted intentionally, then you are liable for the regular punishment; if you acted unintentionally, then that exempts you from punishment and instead you bring a guilt-offering. So the unintentionality is not the reason you are liable for a sin-offering; the unintentionality is the reason you are exempt from punishment. Okay? By contrast, according to the suggestion I made earlier, the unintentionality is the thing for which you bring the sin-offering. Meaning, you bring the sin-offering for the fact that you erred—that’s the problem for which you become liable for a sin-offering. So that’s the meaning of this claim of… one second. That’s the meaning of my claim regarding liability for a sin-offering. Meaning, it’s not just a question of how to calculate how many sin-offerings you owe, but really what lies behind it is the question: what exactly is the sin-offering brought for? Is the sin-offering brought for the transgression, or is it brought for the mistake? Meaning, what does unintentionality mean? Meaning, for the fact that you forgot—that is what makes you liable for a sin-offering. So why do you also have to commit a transgression on that basis? If I just forgot some law but didn’t commit any transgression as a result of that forgetfulness, why doesn’t that make me liable for a sin-offering? Because… what?

[Speaker B] Because it’s in the heart?

[Rabbi Michael Abraham] Yes, but that’s a slogan. Why really not? I think that unintentionality, the forgetfulness itself as such, is very hard to make someone liable for, even technically. At any moment you can forget something and remember it a moment later. Meaning, how can you even measure when you committed a transgression and how many transgressions you committed? So clearly the criterion for when forgetfulness counts as a transgression is when it is realized in an act. Meaning, if as a result of the forgetfulness you came to commit a transgression in action, that means there was meaningful forgetfulness here. But now, you bring the sin-offering for the forgetfulness, not for the act that you performed.

[Speaker C] And how does that relate to doubt? When you don’t know the law and then you do a certain act under some doubt… where does that fit in? Again—if there’s doubt, if you don’t know the law and then you did a certain act under some doubt… where does that fit in?

[Rabbi Michael Abraham] What is doubt? It’s not unintentionality—doubt. Doubt instead of unintentionality is something else. In principle, in a case of doubt you can be acting intentionally. You can intentionally act where there is doubt whether something is forbidden fat or permitted fat, and you know that there is doubt whether it is forbidden fat. For example, we’ll talk about the provisional guilt-offering. A provisional guilt-offering is brought in a situation where you acted unintentionally in a case of doubt. Meaning, you didn’t know there was a doubt whether this was forbidden fat. If you know that there is a doubt whether it is forbidden fat, that is a case of doubt; it is not a case of unintentionality. It’s something else. So that’s what we discussed last time. What I want to do now is actually talk a bit about the contrast with intentional sin, and I’m also going to present that through the offerings. Meaning, I’m going to talk about the guilt-offering as against the sin-offering, and I want to examine the difference between the two, and that again will shed some light for us on the meaning of unintentionality. Okay. So I want to talk, actually, about the guilt-offering. What is a guilt-offering? You’ll see that through this I’ll eventually get to… what was the name? Remind me. Shay Zada. Okay. Okay, so we have the guilt-offering, and if I survey in general which guilt-offerings there are in Jewish law, then there are three kinds of offerings. Six offerings, which are three—yes, okay—three types. There are three guilt-offerings that are brought for a sin; that’s the first type. What sins are there there? The guilt-offering for misuse of consecrated property, yes, the guilt-offering for robbery, and the guilt-offering of the designated maidservant. Okay, those are three guilt-offerings brought for a sin; that’s the first type. The second type is purification guilt-offerings. Two guilt-offerings brought by a nazirite and by a leper. These are not really offerings brought for a sin, but part of some purification procedure. The third type is the provisional guilt-offering, which in fact is a kind of guilt-offering brought for a sin, but it is brought for doubt and for unintentional action in a doubtful situation, as I noted here. So those are the three types of guilt-offerings. The first question I would ask myself is: what do they have in common? Why exactly is a guilt-offering brought for these things? And on the other side of the coin, what is the difference between that and the sin-offering? Why are there certain transgressions for which the defined offering is a sin-offering, and other transgressions for which the defined offering is a guilt-offering? On this matter, Nachmanides goes on at length in Leviticus chapter 5. I’ll share it for a moment. Okay? Fine. Nachmanides says this: “And he shall bring his guilt-offering to the Lord”—this offering is called a guilt-offering, as it says “by the shekel of the sanctuary for a guilt-offering,” and it has not been clarified why one offering is called a sin-offering and another is called a guilt-offering, though all of them come for sin. All these offerings are brought for sin, so why is one called a sin-offering and one called a guilt-offering? “And one cannot say that it is because of the severity of the sin”—maybe the difference is that the sin is more severe? “For behold, the leper brings two offerings, one called a sin-offering and the other a guilt-offering.” Meaning, the same person brings two offerings, one a sin-offering and one a guilt-offering, so it doesn’t seem likely that the difference between them is a difference in severity of sin. I’ll already note here that the proof is a weak proof. First, because the leper’s offerings are not really brought for sin at all, but are purification offerings. And second, why in fact are two offerings needed for the leper? Presumably because there are two aspects there that need to be addressed. It could be that one is more severe than the other, so for the more severe one this is brought and for the lighter one that is brought. The fact that both are brought within the framework of the leper’s purification does not necessarily prove that the gap between sin-offering and guilt-offering is not due to the severity of the transgression. Fine—that’s Nachmanides’ argument in any case. “And it appears to me that the term guilt-offering indicates something grave, such that the one who does it is liable to become desolate and lost through it,” from the language “declare them guilty, O God,” and “the dwellings of the wilderness are desolate,” and similarly “Samaria shall bear her guilt, for she has rebelled against her God,” and likewise “we are guilty,” meaning punished. Whereas “sin-offering” indicates something by which one veered from the path, from the language “and not miss.” A sin-offering is from missing the mark, going off the path. And a guilt-offering is something that makes me liable to become desolate, to be lost from the world. “And the guilt-offering for robbery and the guilt-offering of the designated maidservant, since they come even for intentional sin”—we’ll see this further on—“their offering is therefore called a guilt-offering.” Why does the fact that it comes for intentional sin justify calling it a guilt-offering? What?

[Speaker E] Because it’s more severe? That you bring an offering even for intentional sin?

[Rabbi Michael Abraham] Why is that more severe?

[Speaker F] It’s intentional, and intentional sin is more severe than unintentional sin.

[Speaker E] Okay, fine, so what?

[Rabbi Michael Abraham] So then the offering is more severe too. But is the offering more severe, or is the transgression more severe? I would actually say the transgression is lighter. If even for its intentional violation…

[Speaker F] we make do only with an offering…

[Rabbi Michael Abraham] a guilt-offering, then that means its intentional violation is like the unintentional violation of another transgression. So that means the transgression is actually lighter. Yes, it’s not completely clear to me. “And similarly the guilt-offering of the nazirite. But the guilt-offering for misuse of consecrated property, although it is for unintentional sin”—the guilt-offering for misuse of consecrated property is brought only for unintentional misuse, not for intentional misuse—“because it concerns the holy things of the Lord, the offering is called a guilt-offering, for the sin is great, and one becomes guilty through it, since it is called me’ilah.” This whole discussion of Nachmanides is strange. The sin-offering is brought for the most severe sins there are, much more than the guilt-offering. The sin-offering is for all those things whose intentional violation incurs stoning, karet and stoning, and their unintentional violation requires a sin-offering. Those are the most severe transgressions. The guilt-offering is brought for things whose intentional violation does not make you liable the way the intentional violation of sins requiring a sin-offering does. So the whole picture here in Nachmanides seems very strange. “The matter of the leper, because the leper is considered like dead…” In short, these are homiletic ideas that are nice for an ethics session. They don’t really offer convincing explanations to me for the difference between a sin-offering and a guilt-offering. “And regarding the leper, because the leper is considered like dead, behold, he is already desolate and lost, and his first offering is called a guilt-offering to protect him from the guilt in which he is desolate. And the second is a sin-offering, which atones for his unintentional sins.” I don’t know. “And the reason for the provisional guilt-offering is that its owner thinks he has no punishment, since it is not known that he sinned; therefore Scripture was more stringent with him in his doubt than in his certainty.” He seems to be twisting himself up a lot, right? That’s clear. Fine. So I’ll suggest another explanation to you. It is connected somewhat to the linguistic distinctions that Nachmanides makes, but in my opinion it is much more convincing.

[Speaker B] It says there, “It is a guilt-offering; he is surely guilty before the Lord.” What? He says, “It is a guilt-offering; he is surely guilty before the Lord.”

[Rabbi Michael Abraham] And therefore what?

[Speaker B] What does that show? Look, it’s at a more severe level.

[Rabbi Michael Abraham] A more severe level? I don’t know—let’s see. I don’t see that specifically in the context of severity. Fine, in short, I want to offer you another explanation, which as I said connects to what Nachmanides says. Look, there is a Mishnah in Keritot. A Mishnah in Keritot: “And these bring for intentional sin just as for unintentional sin: one who has relations with a designated maidservant, a nazirite who became impure, an oath regarding testimony, and an oath regarding a deposit.” These are the offerings that are brought also for intentional sin, not only for unintentional sin, unlike the ordinary offerings brought for sinful acts, which are brought for unintentional sin, like the sin-offering, yes? What is the character of these offerings? Three of them are guilt-offerings: one who has relations with a designated maidservant, a nazirite who became impure, and an oath regarding a deposit. The oath regarding a deposit is the guilt-offering for robbery. There are three guilt-offerings here. The oath regarding testimony is a sliding-scale offering; that’s something else. And three of them are guilt-offerings. So in fact it seems—the commentators explain—that the sliding-scale offering, yes, the offering for an oath regarding testimony, is called in the Torah a guilt-offering, even though it is not really a guilt-offering but a sliding-scale offering, because it is brought for intentional sin. What do we see here? That essentially a guilt-offering is, in its essence, brought also for intentional sin. Even if there is another offering that is not a guilt-offering but is brought for intentional sin, the Torah calls it a guilt-offering. Meaning, in the end, it seems that the fact that a guilt-offering is brought for intentional sin is somehow really connected to the essence of the guilt-offering. The fact that it is brought for intentional sin. Okay? Even an offering that is not a guilt-offering—if it is brought for intentional sin, they also call it a guilt-offering. Meaning, it seems this characteristic is essential. Right—a very good question. The guilt-offering for misuse of consecrated property is specifically for unintentionality. So we’ll talk about that in a moment. But here at least we see—it really does not appear in this list—that the fundamental characteristic of the guilt-offering is that it is brought for intentional sin. Rashi on the Mishnah in Horayot 8a and elsewhere: “For with guilt-offerings there is no law of hidden communal error, since one is liable to a definite guilt-offering for intentional sin as for unintentional sin.” So Rashi says it as something obvious: guilt-offerings, in general. Again, remember: the guilt-offering for misuse of consecrated property is specifically for unintentional sin. You correctly pointed that out. And Rashi does not address it. Rashi says: guilt-offerings—you are liable for them to a definite guilt-offering for intentional sin just as for unintentional sin, unlike a provisional guilt-offering, yes? We’re talking about a definite guilt-offering. What about the guilt-offering for misuse of consecrated property? So we’ll still have to understand that. But we still see, both in this Rashi and in the Mishnah above, that there is some essential characteristic of guilt-offerings: that guilt-offerings are brought for intentional sin as for unintentional sin. We’ll have to understand the exception, but that is the essential characteristic of guilt-offerings. I think what this actually means is that there is probably something more fundamental that defines guilt-offerings, from which it follows that generally one becomes liable to a guilt-offering for intentional sin as for unintentional sin. Meaning, the essential characteristic is not that one is liable for intentional sin, but something more basic, whose usual implication is that intentional sin is treated like unintentional sin. There are places where it is not, but the essential characteristic will still be there. Yes, that’s always how one should… when I encounter something… there is an essential characteristic, but it has one or two exceptions, whatever, a few exceptions—what does that mean? It means that the essential characteristic probably reflects something else, which is really the true essential characteristic. And in the exceptional cases, that characteristic is still there; only its practical expression is different. Right, that’s the logic. Now I’ll try to find that essential characteristic. So let’s begin—I want to survey the guilt-offerings of sin. Okay? Let’s start with the guilt-offering of the designated maidservant. A designated maidservant is a woman who is half slave and half free, married to a Hebrew slave. Maybe also to an Israelite, but plainly to a Hebrew slave. What happens if someone has relations with her? If someone has relations with her, then she is liable to lashes, but he is not punished; according to most views he did not even commit a transgression. Not only is he not punished—he committed no transgression at all. But he does bring a guilt-offering; he brings the guilt-offering of the designated maidservant. Okay? Those are the data. Why are we even talking about a designated maidservant? Because on the slave side she cannot be betrothed by ordinary betrothal. A slave woman cannot be betrothed by ordinary betrothal. She is half slave and half free, so from the free side she can, from the slave side she cannot. In such a designated maidservant the concept of marital status is, in some sense, defined, at least for a Hebrew slave, and therefore she can in fact be betrothed to a Hebrew slave and she is his wife. Okay? And still, if someone has relations with her, he has committed no transgression according to most views—in any case not a sexual transgression, yes? Not like an ordinary married woman. But he does bring a guilt-offering. She is lashed—that is something else. By the way, this is one of the only cases in sexual prohibitions where there is a difference between man and woman. Usually the Talmud says that in sexual prohibitions, whenever there is a prohibition on the woman there is also a prohibition on the man; it always comes together. There is no prohibition on one of them while the other is not prohibited; there is no case where one of them is prohibited and the other is not. The designated maidservant is the one exception. In the case of the designated maidservant, the woman is under a prohibition that makes her liable to lashes, and the man who has relations with her is not; there is no prohibition. He is liable to a guilt-offering, but there is no prohibition. So I want to explain how it can be that an offering is brought here for an act that is not even defined as a transgression. And this is part of the guilt-offerings brought for sin. There is no sin here—so what is meant by guilt-offerings brought for sin? Pnei Yehoshua on Gittin 43 says this: Rav Chisda said, “A woman who is half slave and half free who was betrothed to Reuven and then was freed—and I cannot apply to her the verse ‘the wife of two dead men,’” etc. I’m not getting into that Talmud passage there. And Pnei Yehoshua says: this is difficult for me, because here you could find a case of “the wife of two dead men” where she was not freed and then became betrothed again to Shimon. We’re talking about a designated maidservant who was not freed; they did not free her slave side, okay? And now she was betrothed to Shimon. Fine? For although Reuven’s betrothal takes effect with her, nevertheless, since for those betrothals one is liable only to a guilt-offering, as implied by Rashi’s commentary, as the Rosh wrote, then it would seem that Shimon’s betrothal also takes effect with her, for we hold that betrothal takes effect with those liable only to prohibitions, and here there is not even a prohibition, only a guilt-offering. Right? We know that if there is a woman forbidden to me by a karet-level prohibition, one of the sexual prohibitions, then my betrothal to her does not take effect. In cases of ordinary prohibitions, betrothal does take effect.

[Speaker E] “Behold, you are betrothed to me,” if I said it.

[Rabbi Michael Abraham] Right, I’m speaking halakhically. What happens in the case of the designated maidservant? Pnei Yehoshua says: if I betroth her, the betrothal takes effect. Why does it take effect? There isn’t even a prohibition here; it’s lighter than an ordinary prohibition. And therefore the betrothal takes effect. So what happens now? She is married to the Hebrew slave Reuven. Fine? Now Shimon comes and betroths her; the betrothal also takes effect for Shimon. What follows from that? She is basically married both to Reuven and to Shimon. Right? So why does the Talmud say that we do not find “the wife of two dead men”? What is “the wife of two dead men”? It means a woman married to two husbands, and if both her husbands die childless, then she would require levirate marriage in two directions—to the brother of the first husband and to the brother of the second husband. So that is the Talmud’s colorful way of saying that there is no such situation as a woman being married to two husbands. Pnei Yehoshua says: but here there is such a case. The designated maidservant can be married to two husbands—to her Hebrew slave husband, and also to someone else who betroths her; she would be married to him too. So why does the Talmud say that we do not find “the wife of two dead men”? Here we do find it—in the case of the designated maidservant. The betrothal of the Hebrew slave is not on the maidservant qua slave—

[Speaker D] The designated maidservant doesn’t, doesn’t prevent other betrothals.

[Rabbi Michael Abraham] No, that’s what he says, because ordinarily with a married woman betrothal does not take effect because it’s a sexual prohibition. One who has relations with her commits a capital sexual offense. Obviously we’re speaking about a woman who is married. A designated maidservant is a maidservant designated to a man. She is married to a Hebrew slave. Fine? Now someone comes and betroths her, or has relations with her. When he has relations with her, he has not really violated any prohibition; he is only liable to a guilt-offering—not even a mere prohibition applies here. Okay? So then Pnei Yehoshua says: if so, then apparently that betrothal should take effect, because it is betrothal that could lead to intercourse, meaning he can have relations with her—there is no problem. So if so, she is the wife of two dead men. Why does the Talmud say that we do not find the wife of two dead men? Okay? Pnei Yehoshua—I once spoke here at some conference about Pnei Yehoshua, and I brought several examples from Pnei Yehoshua of Brisker-style thinking. Yes, modern analytical Talmudic thinking that already appears in Pnei Yehoshua. I tried to show that the history of ideas is complicated. Because once someone conceptualizes an idea, you’ll always find it also in earlier thinkers. And still, the idea belongs to the one who conceptualized it. Meaning, all these distinctions of Rabbi Chaim—object versus person, sign versus cause, the two-laws approach, all this analytical mode of thinking—belongs to Rabbi Chaim. Rabbi Chaim was the one who conceptualized it. That does not mean you won’t find forms of argument like that in earlier sages. With Pnei Yehoshua I can show several examples. Even though he certainly did not generally learn the way Rabbi Chaim did. Meaning, you can’t say he learned in Rabbi Chaim’s analytical way. But the ideas are there. So why isn’t he the owner of those ideas? Because he didn’t conceptualize them. He simply used them. Logic is logic. Sometimes people used it. Rabbi Chaim turned them into fixed patterns of thought that you can now use in all kinds of passages. Therefore it is proper to give the copyright to Rabbi Chaim, even though he came two hundred years after Pnei Yehoshua.

[Speaker F] According to Pnei Yehoshua, if she became Reuven’s and then Shimon betrothed her, that means after she was a designated maidservant and then married—

[Rabbi Michael Abraham] Interesting question. Seemingly she would be forbidden to him, since her betrothal to Reuven is not the betrothal of a designated maidservant; it is full-fledged betrothal. So from the side of her being half a married woman, and from the side of her being half unmarried, the half that is Jewish—not slave, yes—the half free side, then she is apparently fully married. And then it comes out that you cannot have relations with her because she is fully a married woman.

[Speaker F] She would be fully forbidden to both of them.

[Rabbi Michael Abraham] Fine, but it could still be true. Because you could say that even her marriage to a free man, not a slave, is still a designated-maidservant kind of marriage. A designated maidservant is not only to a slave but also to… and then it comes out that even when the slave has relations with her, he is only having relations with a designated maidservant. So I don’t know. In any case, in any case, it’s not a matter of betrothing half a woman—that’s a Talmud passage in Kiddushin saying that that cannot happen. In any event, Pnei Yehoshua asks this question and answers as follows: “And in my humble opinion it seems to be resolved as follows: that which we hold generally that betrothal takes effect in cases of ordinary prohibitions, that is with ordinary prohibitions, but not where the prohibition is created by the betrothal itself. And even without that, you cannot have one betrothal after another, because once Reuven’s betrothal has taken effect, she is in his domain and has no legal hand to accept betrothal from another; so it seems to me.” Pnei Yehoshua says: if someone betroths a designated maidservant, his betrothal will not take effect. Why? There is no prohibition here, not even an ordinary prohibition. So what’s the problem? He says: let’s go back to an ordinary married woman, not a designated maidservant. In the ordinary sexual prohibitions—say someone betroths his sister—the betrothal does not take effect because of the severity of the prohibition. It is a sexual prohibition; with a prohibition of that severity, betrothal does not take effect. In the case of a married woman, why does betrothal not take effect? For two reasons. First, the severity of the prohibition—it is a sexual prohibition. But not only that. Also because she is already married; she is not available to accept betrothal. She is not on the market. She is already married to someone. You cannot betroth her. You can betroth a woman who is on the market, meaning unmarried and available to accept betrothal. But a woman who is already another man’s wife is not on the market; you cannot betroth her. Okay? Not because of the prohibition involved, but because she is already another man’s wife.

[Speaker G] Half Jewish, half slave…

[Rabbi Michael Abraham] Doesn’t matter. She is married to a Hebrew slave, so she is betrothed to him.

[Speaker G] In a partial way? Yes.

[Rabbi Michael Abraham] That’s the concept of the designated maidservant. So if that’s the case, then betrothal to this woman cannot take effect, as with an ordinary married woman, first of all. Why does betrothal not take effect? For two reasons: both because of the severity of the prohibition and because she is another man’s wife. And that is unlike all the other sexual prohibitions. In the case of one’s sister, one’s mother, all the other sexual prohibitions—why does betrothal not take effect? Only because of the severity of the prohibition. There is no other reason. Okay, what’s the practical difference? Right—regarding the designated maidservant, where there isn’t that severe prohibition, but she is still another man’s wife. Right? So if the non-effectiveness of betrothal were only because of the severity of the prohibition, then in the case of the designated maidservant the betrothal would take effect. That’s what Pnei Yehoshua assumed in his question. But if in the case of a married woman—and there is a married-woman element in the designated maidservant—betrothal does not take effect even apart from the severity of the prohibition, because there is another reason, namely that she is another man’s wife, then that is true also in the case of the designated maidservant. And therefore, says Pnei Yehoshua, this is basically a classic two-laws move of Rabbi Chaim, right? So there are two laws here as to why betrothal does not take effect with a married woman: both because she is another man’s wife, and because of the severity of the prohibition. What’s the practical difference? In a place where one of the laws falls away but the other remains, as in the designated maidservant. Okay, that is a classic Rabbi Chaim move; you can find dozens like it. So for our purposes, in any event, that is what Pnei Yehoshua is claiming. If so, it comes out that with the designated maidservant, even though there is no formal halakhic prohibition—at least not at the level of an ordinary prohibition—against having relations with her, betrothal still does not take effect. Betrothal does not take effect because she is in someone else’s domain. When you come to betroth her, you are intruding into a domain that is already occupied; that domain is not available to you. One could say, at least to some extent, that when you come to betroth a married woman there is also an element of theft here, not just an element of adultery in the prohibitive sense; there is also an element of theft, because you are in effect taking a woman who is in someone else’s domain. Okay, look at Maimonides in the Laws of Kings, chapter 9: “And how are they commanded concerning laws? The descendants of Noah are obligated to appoint judges and officers in every district and district to judge these six commandments and to warn the people. And a Noahide who transgresses one of these seven commandments shall be executed by the sword. And for this reason all the inhabitants of Shechem were liable to death by law, for Shechem robbed, and they saw and knew and did not judge. And a Noahide may be executed on the testimony of one witness and by one judge, without prior warning, and even on the testimony of relatives, but not on the testimony of a woman, and a woman shall not judge for them,” etc. So why were the people of Shechem liable to death? Because they robbed. What did they rob? Dinah. How is that called robbing Dinah? What kind of robbery is there here? What is robbery? You could say adultery, I don’t know, rape, I don’t know. What does this have to do with robbery?

[Speaker F] Maybe she didn’t consent?

[Rabbi Michael Abraham] Okay, maybe she didn’t consent. Dinah is not a married woman married to someone else—that’s not the issue. But yes, if she didn’t consent and you take her, then beyond the problem of intercourse itself, of sexual prohibitions, there is some dimension of theft here. In the same way, one could say about a woman married to someone else that even if she does consent, she isn’t the one who has the power to consent. The one who can consent is only the husband—let him divorce her, and he can consent that she go and marry someone else. And since that is so, there is also an element of theft here, not just the element of prohibition. Say someone has relations with his sister—then there is only the element of prohibition. If she consents and she isn’t married and so on, then it is only the element of prohibition. In the case of a married woman there is also the dimension of theft, not only the dimension of the sexual prohibitions involved. So that is like theft of land.

[Speaker B] Even though you say there’s a dimension of theft, that’s theft you can’t really steal.

[Rabbi Michael Abraham] All right, it doesn’t matter right now, but there is an aspect here where the transgression involved is a transgression. Even regarding land theft, after all, there are medieval authorities (Rishonim) who say land cannot be stolen, but the transgression of theft still exists even with land. Fine. Rabbeinu Tam even says that there is overcharging with land too, even up to half, and so on. Because the Minchat Chinukh, for example, infers from here: what happens if a Noahide has relations with a married woman in an atypical manner? Right? So he does not violate the prohibition of a married woman, but he says: still, there was theft here, because he nevertheless had relations with someone else’s wife. Right? That’s the idea. In other words, we see here—and the details don’t matter right now—we see that having relations with a married woman is actually something made up of two aspects. One aspect is the severity of the prohibition, like all forbidden sexual relations. And the second aspect is that you are intruding into a domain that is not yours. You are stealing, or entering a place that you really have no right to enter.

So in practice, what does that mean when we talk about the guilt-offering of a designated maidservant? Apparently, the guilt-offering is really brought for that second aspect that exists in the designated maidservant. When you have relations with a designated maidservant, what are you bringing the guilt-offering for? After all, there is no prohibition here. You bring the guilt-offering for the fact that you intruded into a domain that is not yours, for the dimension of theft inside the act. Not for the dimension of prohibition. All right, it’s not the prohibition of theft; it doesn’t fall under the prohibition of “do not steal.” I’m talking about the aspect of theft when you have relations with a married woman, okay? For that, the guilt-offering is brought.

What does that really tell us? It tells us that a guilt-offering is not brought for transgressions. The cause that obligates a guilt-offering is not a transgression. So what is it? Some kind of intrusion into a domain that is not yours. That’s a factual question, not a question of whether you committed a transgression or not. The very fact that you entered a domain that is not yours obligates you to bring a guilt-offering. That reality—not the criminal dimension in the act.

As opposed to a sin-offering. This already starts opening a door for us into the difference between a sin-offering and a guilt-offering. A sin-offering, we talked about this, is brought for an inadvertent sin. What does that mean? You were negligent, you erred, and that led you to commit some transgression. You bring a sin-offering for the criminality involved in it—a lesser criminality, not an intentional sin, just a sin through negligence. But still, you are liable for a sin-offering. For what? For the criminality in the act. Therefore it is obvious that there is room here to distinguish between inadvertent and intentional. If you acted intentionally, then you are liable for punishment, full punishment. If you acted inadvertently, there is still a criminal dimension here, so you are liable for a sin-offering. Under duress, there is no criminal dimension at all, so then you are not liable even for a sin-offering. Nothing at all. Right?

What happens with a guilt-offering? With a guilt-offering, there is no difference between intentional and inadvertent. Why not? Because with a guilt-offering you are not becoming liable because you are a criminal—that’s not the point. You really are not a criminal, for example in the case of a designated maidservant. You become liable because of what you did itself: you simply intruded into a domain that was not yours, even if there is no transgression in it at all. It is not a question of guilt at all. The fact that you intruded into a domain that is not yours is what obligates you to bring a guilt-offering.

So what difference does it make whether you did it intentionally or inadvertently? After all, we are not talking here about how guilty you are or how severe the punishment you deserve is. It’s not a question of severity at all. In reality, you intruded into a domain that is not yours—you owe a guilt-offering. So it makes no difference whether you did it intentionally or inadvertently. Therefore, with a guilt-offering no distinction is made between intentional and inadvertent. No distinction is made, not because of severity and not because of leniency, but because of the nature of the offering. This offering is not brought for a transgression. A sin-offering is brought for a transgression. If I act intentionally, I am liable for punishment; if I act inadvertently, I am liable for a sin-offering; if I am under duress, I am liable for nothing—because everything depends on the question of how much guilt I bear in the matter, how much criminality of the person there is in it.

With a guilt-offering, the offering is brought for the result, for the fact itself: you intruded into a domain that is not yours. That is a fact. It doesn’t matter whether you did it intentionally, inadvertently, however you want. Moral? Not necessarily moral. You can connect this to morality; I’m not sure you have to connect it to morality. I’m leaving that open. The claim is first of all the simple fact that this happened. Okay?

If I return to Nachmanides’ language, let me remind you again: Nachmanides speaks of a guilt-offering from the language of desolation, as opposed to a sin-offering from the language of sin. I ask myself: what is the difference between sin and desolation? Desolation is the result—it simply happened, you desolated something, right? Something became desolate. That is the fact. I am not entering at all into the question of how much guilt you bear in the matter. That will already depend on whether you acted intentionally, inadvertently, whatever it may be. I am talking about the fact: desolation occurred here, you desolated something. For that you bring the guilt-offering, and that is why it is called a guilt-offering. In a sin-offering, you bring the offering because you sinned, not because of the result of desolation. The fact that you sinned—fine—if intentional, then it’s one thing; if inadvertent, then it’s a sin-offering, because the offering is brought for your sin, not for the desolation you caused, not for the result. In a guilt-offering it is brought for the result. You somehow repair, in some way, the result that occurred here, okay? And therefore it does not depend at all on whether you were inadvertent or intentional. It’s irrelevant. We are not talking about the person; we are talking about the object, we are talking about reality.

One moment, one moment, slowly. So basically I’m using the designated maidservant as a first hint to my general claim. And my general claim is that the difference between a guilt-offering and a sin-offering is that a sin-offering is brought for the person’s sin, while a guilt-offering is brought for the fact, for what he did, for the result, for the desolation he caused. Okay? Therefore, for example, one implication—besides the implication that there is no difference between inadvertent and intentional—is what I want to claim: that you also do not need a transgression. In order to become liable for a guilt-offering, the act does not need to be defined as a transgression. Because that is not the point. If the act is defined as a transgression, that only means that guilt is imposed on me, because it was defined as a transgression and I violated it. And then, if we are talking about my guilt, then of course we have to check whether there was a transgression here or not. You cannot be guilty over something that is not a transgression. If it isn’t defined as a transgression, then what do you want from me? With a guilt-offering, that’s not the question of what do you want from me. I want nothing from you. There was a result, and that result has to be repaired by bringing a guilt-offering. Not because I am coming to you with claims. It is not a question of claims at all. But where is the determination

[Speaker H] that the result is a negative thing?

[Rabbi Michael Abraham] In the very fact that the Torah obligates a guilt-offering. In a moment we’ll see that there are places where the Torah does not obligate a guilt-offering and we ourselves decide that there is a guilt-offering. But for now, with a designated maidservant, the Torah itself obligates a guilt-offering. By that it revealed to me that entering the domain of another man’s wife, beyond the halakhic / of Jewish law problem in it, as with all forbidden sexual relations, also has a factual problem—even if the Torah had not prohibited it. Or—that we’ll talk about in a second, in a second.

So you can see this idea in another context of a married woman. If a woman committed adultery intentionally, then she becomes forbidden to her husband and to the adulterer. Right? If she is the wife of a priest, then that is true even if it was inadvertent or under duress. But for the wife of an Israelite, it is only if it was intentional. What happens if it was inadvertent? If it was inadvertent, she does not become forbidden. I think I mentioned this in the previous lecture, because the Maharik distinguishes between two kinds of inadvertence. In this context I brought it up in the previous lecture. Yes, in the responsa of the Maharik, and it is also brought in practice by the Rema in Even HaEzer: “And Mahari”l was asked about a woman who committed adultery under her husband willingly, and she did not know whether there was any prohibition in the matter—whether this should be considered inadvertent.” That is his wording.

What is the question? She did not know there was a prohibition, so she was inadvertent, wasn’t she? We saw in the Mishnah in “The Great Principle” that there is inadvertence in reality and inadvertence in law, right? If she did not know there was a prohibition in it, then she was inadvertent in law. What is the problem? You can see that the questioner is already hesitating about this issue.

Now look at the Maharik’s answer: “In my humble opinion it seems”—soon we’ll see, I would not define it exactly that way—“in my humble opinion it seems that this woman does not have the status of inadvertent so as to permit her to her husband, since she intended to betray her husband and commit adultery under him, for it is not written ‘if a man’s wife goes astray and commits a betrayal against God,’ such that it would imply only one who intended the prohibition, but rather ‘and commits a betrayal against him.’” Not “against God.” “Against God” means violating a prohibition. “Commits a betrayal against him” means a betrayal against the husband. A betrayal against the husband does not necessarily depend on the prohibition involved.

Say a woman thought that the person she was having relations with was actually her husband—she didn’t know it wasn’t her husband—then she really would not become forbidden to him. Why? Because she did not “betray him.” She simply did not know that it wasn’t her husband. In contrast, if the woman knew it was not her husband, but did not know that it is forbidden to have marital relations with someone who is not her husband, that is called that she “betrayed him.” Why? It is still a prohibition committed inadvertently. True, but she intended to have marital relations with someone who was not her husband. So from her standpoint she certainly betrayed her husband. She did not violate a prohibition knowingly, but she did betray her husband. She wanted to break apart the marital unit or damage the marital unit. So what do I care whether she was aware that there was a prohibition here or not? The point for which I am making claims against her is not the prohibition she violated, but the very fact that she damaged the marital bond, the family unit. So it does not depend on the prohibition. That is what the Maharik says.

Now this already gives us a first hint, by the way, to what comes next, because here you see that the whole discussion is about inadvertence. What happens with intentional adultery? Even with intentional adultery, really, she should have had to bring a guilt-offering, and all these things—a married woman who had relations intentionally or inadvertently or whatever it may be—should have had to bring a guilt-offering. Fine? Why only a designated maidservant? In a moment.

In any case, what we see here in this distinction of the Maharik is, once again, the same facet: when you come to another man’s wife, beyond the aspect of prohibition, there is also the aspect of the breakup of the marital unit itself, the very intrusion into a domain that is not yours. You see this distinction very clearly in the Maharik, even though the distinction he makes is entirely within the category of inadvertence. Earlier I made it between intentional and inadvertent regarding a designated maidservant—right, there a guilt-offering is brought both for intentional and for inadvertent. Here—and here we are not talking about a guilt-offering but about becoming forbidden to the husband and the adulterer—still, the distinction here is a distinction within inadvertence, within the world of inadvertence. Is she inadvertent in law or inadvertent in fact? That is the distinction the Maharik makes.

Even if this has all sorts of interesting halakhic implications, like for example that story with the rabbi from Tzfat, Sheinberg. Right? S. It also doesn’t quite fit exactly into this category. Obviously. The whole discussion there is about the question into which of the Meiri’s two categories such a case should be placed. Since all in all she knew that it wasn’t her husband.

[Speaker B] Fine, but she—

[Rabbi Michael Abraham] —didn’t even know it was forbidden. Right, she didn’t know it was prohibited, but she knew it wasn’t her husband. So apparently according to the Meiri she becomes forbidden to her husband. Rabbi Dichovsky has a long responsum—also in a court ruling and afterward in another responsum—where he wants to argue that no, in such a case she does not become forbidden to her husband, because she did not really intend to break apart the marital unit. So here even according to the Meiri, who would apparently say that in such a case she should become forbidden to her husband, because the fact that she did not know the prohibition is irrelevant—she knew it wasn’t her husband—he says yes, but still, the meaning of the act for her was not a breakup of the marital unit, and therefore she does not become forbidden. Fine, there is room to discuss that.

[Speaker B] She knew it was forbidden, but she didn’t know that it was—

[Rabbi Michael Abraham] —a breakup of the marital unit, but rather just some kind of sin for its own sake. Yes. Well, in any case, there are fools in the world, what can you do—fools and foolish women. Yes.

In any case, for our purposes, the claim of the Meiri basically reflects the same duality I spoke about earlier: the prohibition on the one hand, and the territory—the other domain—on the other hand. Basically the claim I want to make in light of the Meiri is that when someone has relations with a married woman, he does two things: he breaks apart the marital unit, and he violates a prohibition. And his claim is that the woman becoming forbidden to her husband depends on the breakup of the marital unit, not on the prohibition, not on the prohibition they violated.

I am saying the same thing about the designated maidservant. The guilt-offering—or with a married woman generally—the guilt-offering that you bring when you have relations with a married woman, or with a designated maidservant in this case, is for the dimension of intruding into a domain that is not yours, and not for the prohibition. Okay?

Now of course the question arises: so why doesn’t everyone who has relations with a married woman bring a guilt-offering? Here I don’t think that is so difficult, because he is liable to death in any case. In other words, all the aspects are already being dealt with, so that also absorbs this aspect of intruding into a domain not yours. Where does he bring a guilt-offering? In the place where the prohibition is absent. Therefore he will not get the punishment, the regular punishment. Since he will not receive the regular punishment, then what deals with the problem in the reality that was created, the factual problem that was created? There you bring a guilt-offering. Right, like “a greater liability takes precedence.” Similar to that principle, okay?

And the point is that here it isn’t that principle, because the Torah itself does not define a guilt-offering there. If the Torah had defined a guilt-offering, and only by chance I were also liable for something else, then I would be exempt from the guilt-offering because of that principle. Here the Torah itself made that calculation. The Torah itself said: I do not define a guilt-offering at all in the ordinary case of a married woman, because it is already absorbed in the death penalty I imposed.

That principle applies only where the combination of two punishments does not arrive essentially. If there are always two punishments, then it is not left to our discretion; the Torah itself simply will not impose the second punishment. In a place where I do an act that somehow, incidentally, ends up making me liable for two punishments—that is where that principle comes in, that if there are two punishments, we apply only the more severe one. In a place where whenever I do this transgression there is also that other transgression, then there is no need to invoke that principle, because the Torah itself already exempts you from the second transgression. With a married woman inadvertently? What?

[Speaker B] With a married woman inadvertently.

[Rabbi Michael Abraham] Then you bring the offering. It depends on what kind of inadvertence, but in principle, if it was inadvertence in the sense that she was not his wife at all—meaning he thought she was his wife—then there is no issue at all of the guilt-offering, because he did not intend any betrayal at all, right?

[Speaker H] And if it was inadvertence in law, if he didn’t know, say, that it was forbidden?

[Rabbi Michael Abraham] If he didn’t know it was forbidden, then there really is an intrusion into the domain, and there should have been a guilt-offering. But inadvertence in law with a married woman—since intentional violation carries death—then there is a sin-offering. So once there is a sin-offering, then you no longer bring the guilt-offering, because it is already being dealt with in any case. It is still being dealt with; even in inadvertence it is being dealt with.

Anyway, for our purposes, we see here this duality of aspects. But we also see something else that brings us to the next section. Because until now I spoke about the guilt-offering of the designated maidservant; that is the first guilt-offering of sin. The second guilt-offering of sin is the guilt-offering for misuse of sacred property. And as we saw earlier, the guilt-offering for misuse of sacred property is apparently exceptional, because it is brought specifically for inadvertence. There they do make a distinction between inadvertent and intentional. For intentional misuse there is no misuse—no, there is no guilt-offering. If someone misuses consecrated property intentionally—yes, principal and an added fifth, doesn’t matter, there are the relevant punishments for intentional violation—but there is no sacrilege-offering, no guilt-offering for misuse.

So why really, in the guilt-offering for misuse of sacred property—if indeed the essential characteristic of guilt-offerings is that they are brought for intentional just as for inadvertent—why is misuse also a guilt-offering? So call it a sin-offering for misuse. Well, not a sin-offering. But why is it defined as a guilt-offering?

So I want to make the following claim. As I said earlier, the fact that in guilt-offerings we connect intentional with inadvertent cannot be essential to guilt-offerings, because as a matter of fact in the guilt-offering for misuse of sacred property it is brought only for inadvertence, and still it is a guilt-offering. So why do Rashi, and also the Mishnah we saw, see this characteristic—that the guilt-offering is brought for both intentional and inadvertent together—as indeed an essential characteristic of a guilt-offering? Apparently because the fact that we make no distinction between intentional and inadvertent is an expression of a more fundamental trait, the one that characterizes the guilt-offering. And what did I suggest that trait is? What is that trait? The result, the intrusion into someone else’s domain, right? And as a result of that there is no difference between intentional and inadvertent. But in essence, what defines a guilt-offering is not that there is no difference between intentional and inadvertent, but that there is here an intrusion into a domain that is not yours. Consequently there also will be no difference between intentional and inadvertent, because factually you intruded. So what difference does it make whether you were intentional or inadvertent? But that is a result. It’s not that I specifically need there not to be a distinction between intentional and inadvertent.

Where will the implication of this show up? Precisely in the guilt-offering for misuse of sacred property. What happens there? In that guilt-offering, what happens if I misuse sacred property intentionally? If I misuse sacred property intentionally, I violate a prohibition, right? But what?

[Speaker G] What do you get, excision? I didn’t understand. What, intentionally? What is the punishment?

[Rabbi Michael Abraham] Doesn’t matter what the punishment is, but it does not leave the domain of the Temple treasury, it does not become non-sacred.

[Speaker F] The concept of misuse is that you are harming—

[Rabbi Michael Abraham] —property of the Most High, so what?

[Speaker F] But that’s not the same thing as harming another domain.

[Rabbi Michael Abraham] But there is a guilt-offering there for misuse, so what do you mean it’s not the same thing? A guilt-offering is brought there. So how are we going to explain that? So look, first of all, facts. The facts are that halakhically, if it was inadvertent, the property that was misused becomes non-sacred; if intentional, it does not become non-sacred. Okay? If intentional, it does not become non-sacred. That’s first of all a fact. Okay?

Now I’m saying: if that is the fact, and that needs to be explained independently, regardless of the whole question of guilt-offerings and all that—there is such a rule, that in inadvertence it becomes non-sacred, and in intentional misuse it does not. Okay? It may be that this is connected to the idea that in every place it is the domain of the Merciful One—that is, the property of the Most High, the Holy One blessed be He, is everywhere; you cannot really remove it from the domain of the Holy One blessed be He. But in inadvertence it does become non-sacred.

Wait, wait, in a second I’ll get to the comparison with a married woman. There too it says “and commits a betrayal against him,” that’s also misuse. Just a second. So regarding misuse of sacred property: since factually inadvertent misuse transfers it to non-sacred status, while intentional misuse does not transfer it to non-sacred status, it is obvious why only for inadvertence do you bring a guilt-offering. Because only in inadvertence did you intrude into a domain not yours. In intentional misuse, you entered there, but nothing happened—it remained there. You did not create the desolation that obligates the guilt-offering. The desolation happens only when you misused it inadvertently.

Now notice: the fact that with misuse of sacred property there is a difference between inadvertent and intentional is not only not a difficulty for what I’m saying—it is evidence for what I’m saying. Why indeed is a guilt-offering brought only for inadvertent misuse and not for intentional misuse? Exactly because the guilt-offering is not brought for the transgression—for the transgression exists even in intentional misuse. So for what is the guilt-offering brought? For the intrusion into a domain not yours, or for removing the thing from the domain of the sanctuary into another domain. That removal exists only in inadvertence, not in intentional misuse. Therefore, for that same reason, precisely because I am right, the guilt-offering is brought only for inadvertence and not for intentional misuse.

Or in other words: the distinction between inadvertent and intentional in the guilt-offering for misuse of sacred property is not from the laws of guilt-offerings; it is from the laws of misuse of sacred property. Because only in inadvertence is there misuse. Meaning, from the standpoint of the laws of guilt-offerings there is no difference between inadvertent and intentional. If there was desolation, you bring a guilt-offering. So why in the guilt-offering for misuse of sacred property is there a difference between inadvertent and intentional? Not because of the laws of the guilt-offering, but because of the laws of misuse. Quite simply, in intentional misuse it is not halakhically called misuse, so you do not bring a guilt-offering—not because of the laws of guilt-offerings there, but simply because of the laws of misuse. Understand?

So precisely this distinction between inadvertent and intentional in the guilt-offering for misuse of sacred property strengthens what I said earlier, because it shows us that the guilt-offering is not brought for the transgression, because the transgression is committed also intentionally. Rather, the guilt-offering is brought for removing the thing from the domain of the sanctuary to another domain—you intruded into another domain. If so, it is obvious that the guilt-offering will be brought only for inadvertence. In other words, this exception of the guilt-offering for misuse of sacred property—we’ll soon see that it is exceptional as we go through the other kinds of guilt-offerings; for now it is only different from the guilt-offering of the designated maidservant, but we will see that it differs from all guilt-offerings—this exception is precisely an exception that testifies to the rule.

Okay, the point is just that you have to understand, as I said at the beginning, that the lack of distinction between intentional and inadvertent is not the essence; it is a result. The essence is that a guilt-offering is brought for creating desolation. That is the point. Usually the expression of that is: what do I care whether you did it intentionally or inadvertently? As long as desolation occurred, you bring a guilt-offering. In the specific case of misuse of sacred property, simply because of the laws of misuse—unrelated to the laws of guilt-offerings—it comes out that the desolation is not created if you did it intentionally. The transgression happened, but the desolation did not happen. So there is no reason to bring a guilt-offering; no desolation occurred. Only in inadvertence did desolation occur, therefore only in inadvertence do you bring the guilt-offering. Okay?

Now I return to the case of a married woman. There it says “and commits a betrayal against him.” What does “commits a betrayal against him” mean? Why is that called misuse? There specifically, specifically in the intentional case—as you said earlier—she becomes forbidden to the husband and to the adulterer. In inadvertence, no. And still it is called “commits a betrayal against him.” Misuse means to take something out of its existing domain, to ruin the existing domain, right, to desolate it, to turn it into desolation. With a married woman, you turned it into desolation when it happened intentionally. With sacred property, you turn it into desolation when it happened inadvertently. But it doesn’t matter to me, because the guilt-offering involved is brought for the fact that you created desolation. That is the point.

Therefore the very concept of misuse is really the concept of creating desolation. That is called misuse. So when you say “and commits a betrayal against him” regarding a married woman, it means you destroyed the marital unit. That is called “commits a betrayal against him.” This is regardless of the question of whether it was inadvertent or intentional. The difference between inadvertent and intentional already belongs to the laws of a married woman: in the intentional case desolation was created, and in inadvertence desolation was not created. But in the laws of sacred property, the misuse is specifically in inadvertence, because specifically in inadvertence desolation occurred and not in intentional misuse. But the difference between them is not in the laws of the guilt-offering. From the standpoint of the laws of the guilt-offering, in both cases it is the same thing: desolation occurred, you are liable for a guilt-offering. The question whether it is in intentional or inadvertent form simply depends on the question of how exactly desolation occurs and when desolation occurs. In the regular cases of guilt-offering, like the designated maidservant, it happens whether intentional or inadvertent. With a married woman, it happens only intentionally. Fine? With sacred property, it happens only inadvertently. Okay?

Now, look at two nice exceptions, implications of this point. I’ll start with blessings over enjoyment. In the Talmud in Berakhot, the Gemara says as follows: “From where are these words derived?” Right, where do we know that one must make a blessing before food, blessings over enjoyment? “For the Rabbis taught: ‘Holy praises to the Lord’—this teaches that they require a blessing before them and after them. From here Rabbi Akiva said: it is forbidden for a person to taste anything before he blesses.” And it continues, rejects this, brings another source, rejects it. At the very end—I’m skipping a bit—“Rather, it is based on reason. It is forbidden for a person to enjoy this world without a blessing. The Rabbis taught: it is forbidden for a person to enjoy this world without a blessing, and whoever enjoys this world without a blessing commits misuse. What is his remedy? He should go to a sage.” “He should go to a sage”—what is the sage going to do? Why will that help? You ate without a blessing—what will it help to go to a sage? It says, “the prohibition has already been committed,” right? What good is it to go to a sage? Rather, Rava said: “He should go to a sage beforehand and learn the blessings, so that he not come to misuse.” Meaning, go to a sage so that next time it won’t happen to you. Fine.

But for our purposes, what does this mean? It means that in the end this is based on reason. Right? It is forbidden to enjoy this world without a blessing. More than that: whoever enjoys this world without a blessing has, as it were, committed misuse. There is misuse here. Now, “as it were” committed misuse—not really committed misuse. Why? Because the prohibition of eating without a blessing is rabbinic. Right? The prohibition of eating without a blessing is rabbinic. In cases of doubt concerning blessings, we are lenient. Right? You cannot say there is really a Torah-level transgression here. “As it were” committed misuse—but not actually.

Now look at Rabbeinu Yonah, the students of Rabbeinu Yonah there on the Rif: “‘Holy praises to the Lord’—this teaches that it requires a blessing before it and after it. And this is only an asmachta. For certainly by Torah law, even the seven species that require a blessing after them by Torah law, as it is written, ‘And you shall eat and be satisfied,’ still do not require a blessing before them by Torah law, only by rabbinic law.” Right? So the students of Rabbeinu Yonah say: this whole story is only an asmachta. According to the conclusion that it is not even a verse but reason, then it is certainly only a rabbinic prohibition. In cases of doubt concerning blessings, we are lenient.

But look at what follows: “That is to say”—I’m skipping a bit—“one who does not know the blessings, in what way can he eat? For if he eats, he will become liable for a misuse-offering each and every time.” What should he do? He should say “by whose word all things came to be,” or go to an expert and learn from him, and so on. But one who eats without a blessing becomes liable for a misuse-offering. The students of Rabbeinu Yonah said no, no—he brings a guilt-offering to the Temple. He is liable for a misuse-offering every single time. Not some metaphor. “As though liable for a misuse-offering”—that would be one thing. No: he is liable for a misuse-offering each and every time. Even in inadvertence? Doesn’t matter—with a guilt-offering one is liable whether intentional or inadvertent. “And we answer: he should go to an expert and learn the blessings for each and every thing. And the same law applies that even if he knew only the blessing ‘by whose word all things came to be,’ he would thereby escape misuse.” Yes, you can say “by whose word all things came to be”; after the fact that works, and then there would no longer be misuse. It’s not ideal—you should say the correct blessing—but if you said “by whose word all things came to be,” there is no misuse here.

As we learned in the Mishnah: “And for all of them, if he said ‘by whose word all things came to be,’ he has fulfilled his obligation.” Rather, he must learn so that he will say the fitting blessing for each and every item.

How can there be a misuse-offering if we are dealing with a rabbinic prohibition? The students of Rabbeinu Yonah themselves say that it is only an asmachta and a rabbinic prohibition. So how can there be a guilt-offering for misuse? A guilt-offering would then just be unconsecrated animals slaughtered in the Temple courtyard. There is no transgression, and you decide on a guilt-offering? Just by pure reasoning? I don’t know—the Torah did not establish a guilt-offering for this thing. Just your own reasoning, and this is a rabbinic law, and you bring a guilt-offering to the Temple? That would be unconsecrated in the Temple courtyard. How can that be?

Look at the Pnei Yehoshua there—again, the Pnei Yehoshua. The Gemara concludes at the end: “Rather, it is based on reason; it is forbidden for a person to enjoy this world without a blessing,” and so on. “It seems from the language of all the halakhic authorities,” says the Pnei Yehoshua, “that according to this conclusion here, all blessings over enjoyment are only rabbinic, except for Grace after Meals alone.” Blessings afterward could be Torah-level, maybe the abridged threefold blessing too, but blessings beforehand are rabbinic.

“And in my humble opinion this is difficult, for throughout the Talmud it seems that anything that comes from reason is Torah law. On the contrary, the Talmud asks: ‘Why do I need a verse? It is based on reason.’” After all, in many places, in two places it asks in that language, but there are more places where it asks. “Why do I need a verse? It is based on reason.” What does that mean? Why do you need a verse?

[Speaker E] Because even—

[Rabbi Michael Abraham] —without the verse I would know the same thing because I have reason. Now, if the reasoning created only a rabbinic law here, then there is no question of why you need a verse. You need a verse in order to tell you that it is Torah law and not rabbinic. If you say “Why do I need a verse? It is based on reason,” that means that what emerges from reason is also Torah law. Otherwise it cannot be, right? Otherwise there is no difficulty here. So the Pnei Yehoshua says: if so, I have a reason that one must bless before food, so why do the halakhic authorities say that this is rabbinic? Reason is Torah law.

[Speaker B] The reasoning is not necessarily that one must bless. The reasoning is that it belongs to the Holy One blessed be He. The need to bless—that can already be a rabbinic mechanism. In other words, the blessing itself, this device for permitting things, could be a rabbinic matter.

[Rabbi Michael Abraham] But you need to permit it. So do something else—but you need to permit this prohibition.

[Speaker B] The reasoning is not the blessing; the reasoning is the part that—

[Rabbi Michael Abraham] It changes nothing. So say that by Torah law you don’t have to bless—you can stand on one foot and sing a song in honor of the Holy One blessed be He. But how can you then eat it? If it belongs to the Holy One blessed be He, you need some act that permits the thing to you so that it won’t be misuse. Right? So misuse is Torah law.

[Speaker B] Not necessarily. It could be that it belongs to the Holy One blessed be He and you eat, and then it’s nothing, so it’s not Torah law. Ah, then no. So the reasoning says that—

[Rabbi Michael Abraham] Then it’s not Torah law. The obligation to bless is not Torah law. When you say the obligation to bless is Torah law, that means you have to perform some act that permits this belongingness to the Holy One blessed be He.

[Speaker B] But let’s say the reasoning says there is an obligation to bless; the reasoning says there is the domain of the Holy One blessed be He.

[Rabbi Michael Abraham] But the Gemara says “from where,” and the Gemara says that one who eats from this world without a blessing has, as it were, committed misuse. So it says that this is the source for the obligation to bless.

[Speaker G] There are lots of places in the Gemara where reason appears in monetary law.

[Rabbi Michael Abraham] Right, correct. In all the places where you find reason, it is Torah law. Parenthetically, there is the Tzelach here in Berakhot 35 who disagrees with the Pnei Yehoshua, and he argues: what do you mean—where did you get the idea that everything derived from reason is Torah law? For something to be Torah law, you need a verse.

[Speaker G] The Gemara says it explicitly. Maimonides says, the Gemara says—

[Rabbi Michael Abraham] No, that’s something else—he’s talking about exegetical derivations. I’m talking about things that come from reason. The Tzelach argues that when we ask “Why do I need a verse? It is based on reason,” this always refers to details within a law that is already written in the Torah. For example, “the burden of proof is on the one who seeks to extract money from another.” The Gemara says, “Why do I need a verse? It is based on reason.” “The burden of proof is on the claimant” is a detail within “judge your fellow with righteousness.” One has to judge correctly. How does one judge correctly? There are rules of procedure, laws of evidence, and things like that. Among them is “the burden of proof is on the claimant”: the one in possession remains so unless the other proves his case. So if reason only teaches you how to judge righteously, then that is Torah law, because the obligation to judge righteously is rooted in a verse—it is not from reason—“judge your fellow with righteousness.” Then reason comes and tells you what counts as judging righteously. So “the burden of proof is on the claimant” is part of that. Or “the same mouth that prohibited is the mouth that permits”—that too is part of the laws of evidence.

In a place where reason establishes a new law—not a detail in a law that already exists in the Torah, but establishes a new law—there it will not be Torah law. For example, the willow on Sukkot and the water libation are a law given to Moses at Sinai. According to Rabban Gamliel, I think, the willow and the water libation are a law given to Moses at Sinai. There—

[Speaker B] That—

[Speaker G] —would not be Torah law, says the Tzelach. Sorry, no, that’s a law given to Moses at Sinai.

[Speaker B] A reasoning that establishes a law, like here. Here there is a reasoning.

[Speaker G] Why not bring an a fortiori argument? And also—what about the width? So with which water are we going, with the width and the thickness of the walls? Yes, there’s a problem of wall thickness. For me ten handbreadths is okay from the outside.

[Speaker B] From the outside yes, but—

[Speaker G] Here there isn’t really thickness; here these are sliding doors. I would sit on the floor. What I do is lean on the wall, that’s the only thing—here by the wall. Are they afraid here?

[Speaker B] No, I’m saying outside it’s more dangerous.

[Speaker G] Look, the covering didn’t end. And he dropped it here, like this. Ten cubits here, ten cubits here. God help you, wow.

[Speaker B] I really don’t put my back on the wall, I lean like this.

[Speaker G] This is what Rabbi Akiva said, right? His father or grandfather brought him on Sukkot to Rabbi Melamed, and he has a head—

[Speaker B] —pompadour, already wise when small.

[Speaker G] What do they say in Sefat Emet? A person is a category where he does not have an empty head, everything is full, and he has a head afflicted in soul.

[Speaker B] One of the guys had a head really like a sukkah, a head—what is this? What is this here in the sukkah?

[Speaker G] Blessed be God, we merited this occasion, a high, high building forever and ever—

[Speaker B] A majestic mound.

[Speaker G] About Abraham our forefather it says, when he saw the angels—

[Speaker B] —he—

[Speaker G] —said, “Knead and make cakes,” he said, “quickly.” The concept of “quickly” is a matter of holiness. When a person does things with alacrity, it shows his vitality, his connection to the Holy One blessed be He. We pray every day, “May the Temple be rebuilt speedily in our days.”

[Speaker B] This building is not only a building of stones—

[Speaker G] —it is a building of spirit, a building of Torah.

[Speaker B] Every corner here is soaked with toil, with prayer.

[Speaker G] May it be His will that this place continue to produce Torah scholars, God-fearing people, and that we all merit to see the consolation of Zion and the rebuilding of Jerusalem speedily in our days, amen.

[Speaker B] So if that’s the case, with the bureaucracy we’ll be waiting. Well, at least we’ll get there before the minute is over. Before the minute was over, we said that earlier.

[Speaker G] I don’t know, it ended around when we came in, I think. It didn’t come in.

[Rabbi Michael Abraham] Okay, so we were talking about blessings over enjoyment. And I said that according to the Pnei Yehoshua, the Pnei Yehoshua asks that this is based on reason and therefore it ought to be Torah law. And if it is Torah law, then why do all the halakhic authorities say it is rabbinic? Because everything that comes from reason has the status of Torah law, as the Gemara asks, “Why do I need a verse? It is based on reason.” I noted that the Tzelach already comments that this is only for details within existing laws, and not for newly established laws. But the Pnei Yehoshua assumes it also applies to newly established laws. And I want to make the following claim: this law of blessings over enjoyment really is a Torah-level law. It is a Torah-level law because it comes from reason, and “Why do I need a verse? It is based on reason.” So the law is Torah-level, and therefore in a case of doubt you really ought to be strict—you need to bless.

Only what? Only the form, the form of the blessing, is rabbinic. By Torah law you can say, “Holy One blessed be He, I ask permission to eat this,” and eat, because you have fulfilled your obligation. But the text of the blessing—mentioning the divine name and kingship, and the whole formula, which blessing is said over which food—that is rabbinic. Now what happens in a case of doubt? In a case of doubt, with the Torah-level requirement you have to be strict. Therefore you need to bless, to say to the Holy One blessed be He, or ask permission from the Holy One blessed be He to eat, to thank Him, or however one does it, okay? As for the rabbinic law, the form of the blessing is rabbinic; in cases of doubt in rabbinic law, we are lenient, especially since it involves saying God’s name in vain, “do not take the name,” so out of doubt we are stringent and do not bless with the formal formula. Therefore, in a doubtful case, one really does have to be strict with the Torah-level law, and it is still correct to say that in doubtful cases of blessings we are lenient. The only claim is that “in doubtful cases of blessings we are lenient” does not mean: okay, then eat without a blessing. It means: eat with a blessing but without the divine name and kingship. Because the name and kingship are only a rabbinic requirement, and there in doubt we are lenient, and there is also an issue of prohibition. But the basic obligation to bless is really Torah law.

[Speaker F] Maybe a few minutes were missing or something like that and he didn’t intend and did intend, but once he already blessed, then he fulfilled it? I didn’t understand. One person blessed? Without one? Well.

[Rabbi Michael Abraham] Now—

[Speaker F] —that he finished, and afterward another fruit came and he didn’t bless over it?

[Rabbi Michael Abraham] Now we’re learning the laws of blessings—how is that connected to what I’m saying?

[Speaker F] The question was whether the distance between the blessings is Torah law or rabbinic. That’s the question.

[Rabbi Michael Abraham] All the details in the laws of blessings are rabbinic. As long as you can connect what you said earlier to the food in front of you, now you decide by reasoning when you can connect it and when you can’t, then you’ve fulfilled the Torah-level obligation. But for our purposes, what does that actually mean? I want to argue that since there is no verse here, it’s only reasoning, okay? So it’s clear that there is no positive Torah commandment or Torah prohibition on someone who eats without a blessing, nor a positive commandment to recite a blessing. So what is there? There is use of a domain that is not yours, like misuse of consecrated property, right? Since that’s the case, when you eat without a blessing, you have not violated a prohibition and have not failed to perform a positive commandment, but you have entered a domain that is not yours, and that is a Torah-level conclusion based on reasoning. And therefore, you bring a guilt-offering for misuse of consecrated property, and that is what the students of Rabbeinu Yonah say. The students of Rabbeinu Yonah say that you bring a guilt-offering for misuse of consecrated property. I asked: where is the prohibition? There is no prohibition, but there is entry into a domain that is not yours, even at the Torah level, because reasoning at the Torah level says that it is as though he committed misuse. And therefore, there is no prohibition here, neither a negative commandment nor failure to fulfill a positive one, but there is an obligation to bring a guilt-offering. There is such an obligation because you entered a domain that is not yours. And once again we see that a guilt-offering, in this case a guilt-offering for misuse of consecrated property, is not brought for a transgression; it is brought for entering a domain that is not yours. Here too there is no transgression, and nevertheless there is liability for a guilt-offering. The same is true of misuse regarding konamot. What is misuse regarding konamot? The Talmud in several places introduces the novelty that someone who forbids something to himself through a konam, a vow prohibition, and then violates it, must bring a guilt-offering for misuse of consecrated property. Now, there is no source for this anywhere, not in the Torah, nowhere, but the Talmud in several places says there is misuse in konamot. And Maimonides rules this as Jewish law: there is misuse in vows. How so? If one says, “This loaf is for me like a korban and consecrated property,” and he eats it, he has committed misuse, even though it is permitted to others. Therefore it has no redemption, since it is not holy except for this person alone. If he said, “This loaf is holy,” or whatever, then he has committed misuse, and therefore it does have redemption. He is talking about misuse. Now everyone asks—Mishneh LaMelekh asks here, let’s see if I brought it—no, I didn’t bring it—Mishneh LaMelekh in the laws of misuse of consecrated property, chapter 4, asks: what is this guilt-offering for misuse doing here? Is this sacred property? What does this have to do with misuse? If I vowed something, does that make it consecrated property? What does that have to do with misuse? And besides, for the violation of the vow there is already “he shall not break his word”; there is a prohibition. For that prohibition one receives lashes. So that transgression has already been dealt with. Where did this guilt-offering suddenly come from? What is misuse in konamot? You bring a guilt-offering because you benefited from something prohibited by vow. And the answer is: the Talmud says at the beginning of tractate Nedarim, what is the difference between a vow and an oath? A vow applies to the object, and an oath applies to the person. What does it mean that it applies to the object? It means that when you benefit from something forbidden to you by vow, you have essentially trespassed into a domain that is not yours. Because the vow turns the thing into something that belongs to another domain, not yours. Not the domain of Heaven, it has nothing to do with consecrated property at all, but it becomes a domain that is not yours. In contrast, with an oath, the whole matter applies only to the person. If you swore not to do something and then did it, then you committed a transgression because you personally were forbidden to do it, but in reality itself nothing happened as a result of the oath. In a vow, the vow creates something in reality itself. What is that something? That something is some kind of fence around the object—you are forbidden to invade and benefit from the object; for you it is out of bounds. If so, that is the difference between a vow and an oath. If so, then it is obvious why there is misuse in konamot. If you benefit from something forbidden to you, the vowed object that is forbidden to you, you have trespassed into a domain that is not yours. As for the prohibition of “he shall not break his word,” there is no difference between a vow and an oath; you are liable to lashes like with any other prohibition. The guilt-offering does not come for the prohibition. The guilt-offering comes for the very fact that you trespassed into a domain that is not yours, and that truly exists only in a vow and not in an oath. There is no misuse in oaths; there is only misuse in konamot, only in vows. Because a vow applies to the object, and when you benefit from something forbidden to you by vow, you have trespassed into a domain that is not yours. So the Talmud invents this with nothing in the Torah, with no source, with nothing, even without any prohibition at all. The prohibition is—there are lashes for “he shall not break his word,” and after all there is also prohibition in an oath. So why is there no misuse in oaths, only in konamot? The answer is because this misuse is the result of the conclusion that you trespassed into a domain that is not yours. You do not need a prohibition for that. You see that in a very, very systematic way it comes out that a guilt-offering, guilt-offerings in general and a guilt-offering for misuse in particular, are always brought for some kind of damage to a domain that is not yours, trespassing into a domain that is not yours, something you create in the world, with all the implications of that. One implication is that you do not need a prohibition for this; it can come even without a prohibition, as with a designated maidservant, as with misuse in konamot.

[Speaker B] Does that misuse also apply when done deliberately, or only unintentionally?

[Rabbi Michael Abraham] What? Misuse in konamot? Yes. On the face of it, both deliberately and unintentionally. There is no difference between deliberate and unintentional in guilt-offerings.

[Speaker B] But Maimonides brings it together with cases of misuse done unintentionally.

[Rabbi Michael Abraham] Yes, but according to what I’m saying, it applies both deliberately and unintentionally. As far as I know there is no clear source for this. There is no clear source for it. I think it should apply both deliberately and unintentionally, because the becoming non-sacred here is not the becoming non-sacred of consecrated property. With consecrated property, it becomes non-sacred only unintentionally. Here you entered a domain that is not yours; it doesn’t matter whether you did it

[Speaker B] deliberately or unintentionally. From your perspective, you put it into another domain.

[Rabbi Michael Abraham] It doesn’t matter. Bottom line, practically speaking, you trespassed into a place where you were not supposed to be. Therefore, we really see in a very systematic way that a guilt-offering for misuse—or a guilt-offering in general, not specifically a guilt-offering for misuse, a guilt-offering in general—is brought for a state of desolation, not for the person’s sin but for a state of desolation, and that is actually—I’ll stop here because it’s almost Minchah—but that is actually the difference between a guilt-offering and a sin-offering. A sin-offering is brought for the sin a person committed, because he sinned, he went down the wrong path. A guilt-offering is brought for the desolation that he created, for the result, for the reality. The implication is that there is no difference between deliberate and unintentional, as long as there was an exit from the domain. In misuse of consecrated property there is an exit outward only when it is unintentional, therefore it is only unintentional. Even a guilt-offering for misuse itself, in a place where I did it—in a place where it is not misuse of consecrated property, like eating without a blessing, or like misuse in konamot—there, although it is a guilt-offering for misuse, it will be brought without there being any prohibition, and it will also be brought for deliberate action, even though the guilt-offering for misuse explicitly stated in the Torah is only for unintentional action. Okay, that is basically the claim. All right, I’ll stop here, because next we still need to do the guilt-offering for robbery, after that the other kinds of guilt-offerings, the provisional guilt-offering, and then draw conclusions about the relationship between this and unintentional action. We’ll do that next time, which is the last class before Passover.

[Speaker B] Also the metzora too, the metzora too.

[Rabbi Michael Abraham] Fine, after Passover we’ll continue dealing with it. Thank you very much, more power to you, more power to you.