Commentaire sur Kritout 4:6

ספק אכל חלב ספק לא אכל – and how is this to be understood? As, for example, forbidden fat and permitted were before him and he ate one of them, as is taught in the ending clause. And it is specified as it explains: It is doubtful whether he at forbidden fat and it is doubtful that he did not eat it. How so? As, for example, that the forbidden fat and permitted fat were before him and there is a fixed prohibition. But if there was before him one piece, it is doubtful whether it is forbidden fat and doubtful that it is permitted fat and he ate it, he is exempt. For the prohibition was not fixed.

Introduction This mishnah returns to the subject of the “asham talui.” This is a guilt offering brought by one who is not sure if he transgressed.

ואפילו אכל – that it was definitely forbidden fat, but doubtful that had an olive’s bulk, as for example at the time that he ate it, he thought that it was permitted fat, and afterwards it became known to him that it is forbidden fat, but it is doubtful that it has or does not have an olive’s bulk.

If [a person was] in doubt whether he had eaten forbidden fat or not, or even if he had certainly eaten [of it] but [was] in doubt as to whether it had the requisite quantity or less; or [if there were] before him permitted fat as well as forbidden fat, and he ate of one of them and does not know of which of them he ate; These are various scenarios in which a person is not sure whether he ate forbidden fat (helev) and even if he did eat forbidden fat, he is not sure if he ate enough to make him liable for a hatat.

אכל א אאחד מהן – but he thought that it was permitted fat, and afterwards it became known that the one was forbidden fat, but this one doesn’t know which he ate, he brings an uncertain guilt-offering (i.e., a sacrifice brought by someone who is uncertain as to whether he committed a sin that requires a sin offering). But, if at the time of eating he had a doubt, and he willfully acted and ate from doubt, this is willful behavior and he is exempt.

Or if his wife and his sister were with him in the house and he unwittingly [had sex] with one of them and does not know with which of them he unwittingly [had sex]; In this (albeit hard to imagine scenario) a man is not sure whether he had sex with his wife or sister (for whom he would be liable a hatat).

שגג באחת מהן – in thinking that this is wife, and afterwards he was in doubt which of them was, he brings the uncertain guilt-offering.

Or if he did forbidden labor and does not know whether it was on Shabbat or on a weekday, Here, he is not sure if he did the forbidden labor on Shabbat or on a weekday (perhaps he was traveling and lost track of the days of the week).

He is liable for an asham talui. In each of these cases he cannot bring a hatat, because perhaps he did not transgress. Therefore, he brings an asham talui, which will offer him atonement in case he did transgress. If later he finds out for sure that he did transgress, then he will have to bring a hatat.

כך על לא הודע שלהן – as for example, he ae two pieces [of meat] thinking that both of them were permitted fat, and afterwards became informed/conscious that each one of them was doubtful [as to whether it was permitted fat or prohibited fat], he doesn’t bring anything other than one suspended guilt-offering, since he was not informed of it between each consuming that he ate doubtful forbidden fat.

Just as a person who ate forbidden fat twice in one spell of unawareness is liable to only one hatat, so too, when the transgression is in doubt, he is liable to only one asham talui.
If in the meantime he became aware [of the possible sin] he is liable to a separate asham talui for each act, just as he would [in similar circumstances] be liable to a separate hatat for each act.
Just as one is liable to separate hatats if he ate, in one spell of unawareness, forbidden fat and blood and piggul and notar, so, too, when the transgression is in doubt, he is liable to an asham talui for each different act.
[If both] forbidden fat and notar lay before a person and he ate one of them but does not know which;
Or if his menstruant wife and his sister were with him in his house and he has sex unwittingly with one of them and does not know with which,
Or if Shabbat and Yom Kippur [followed each other] and he did forbidden work at twilight and does not know on which day: Rabbi Eliezer declares him liable to a hatat; But Rabbi Joshua exempts him.
Rabbi Yose said: they did not dispute about a person that did work at twilight, for he is certainly exempt, for I may assume that part of the work was done on the one day and part on the following day.
About what did they dispute? About one who did work during the day itself but he did not know whether he did it on Shabbat or on Yom Kippur, or if he did work and did not know what manner of work he did: Rabbi Eliezer declares him liable to a hatat; But Rabbi Joshua exempts him. Rabbi Judah said: Rabbi Joshua exempts him even from an asham talui.
Today’s mishnah deals with two issues. The first part deals with multiple sins performed in one spell of unawareness. The second part deals with cases where a person definitely sinned, but he is not sure which of two possible sins he committed.
Section one: If a person eats many pieces of helev (forbidden fat) during one period of unawareness, for instance, he didn’t know that what he was eating was helev, or he didn’t know that helev was prohibited, he is liable for only one hatat. This counts as one sin, since it was done in one period of unawareness. Similarly, if in one period of unawareness he is not sure if he ate helev or something else, he is liable for only one asham talui, even if he did the act multiple times.
Section two: If in between sessions of eating something that might or might not be helev he finds out that it is perhaps helev, he is liable for an asham talui for each session. For instance he sits down to dinner and eats. Then his wife tells him, “Honey, that fat you just ate might have been helev.” He is now liable for an asham talui. If the same thing happens the next night, he is liable for two asham talui’s. This is the same rule that applies to cases where he knows that what he ate was helev he is obligated for one hatat for each period of unawareness.
Section three: If one eats foods that carry different prohibitions, one is liable for a hatat for each prohibition, if he knows he transgressed, and an asham talui for each transgression, if he is not sure that he transgressed. I.e. she sits down to dinner and when she is done her husband tells her, “Dear, you might just have eaten helev, blood and notar (remnant).” She is liable for three asham talui’s. If he said, “Dear, you ate helev, blood and notar,” she is liable for three hatats.
Sections 4-6: The second half of the mishnah is patterned after mishnah one. In that case, the person might have transgressed or he might not have transgressed. In the cases mentioned here he definitely transgressed, but he doesn’t know which transgression he did what forbidden food did he eat, which forbidden woman did he have sex with or what day did he do the forbidden labor on?
Rabbi Eliezer says that since he definitely did a forbidden act, he must bring a hatat, even though he is not sure what he actually did. We can see that Rabbi Eliezer adopts a more realistic approach one who certainly sins must bring a hatat.
Rabbi Joshua says that since he doesn’t know what he actually did, he is exempt. This seems to me to be more of a “nominal” approach. Since we cannot find a legal category under which to place his sin, we cannot make him liable.
Section seven: Rabbi Yose says that even Rabbi Eliezer would agree that if one does a sin at twilight between Shabbat and Yom Kippur he is exempt, because he might not have transgressed at all. It is possible that he did half of the prohibited labor on Shabbat and half on Yom Kippur, in which case he did not perform a forbidden labor on either day.
Rather the debate was over one who simply does not know whether he did the labor on Shabbat or on Yom Kippur, or knows that he performed a forbidden labor, but doesn’t know which labor it was. In this case Rabbi Eliezer makes him liable, for her certainly transgressed, even though we can’t find a legal category under which to place his transgression.
Section eight: Finally, Rabbi Judah explains that when Rabbi Joshua exempted him, he exempted him even from the asham talui. An asham talui is brought only in a case where a person might have sinned. Since this person definitely sinned, he cannot bring an asham talui. He is left without any sacrifice to bring.

ואם היתה ידיעה בינתים – the awareness of the doubt.

כשם שהוא מביא חטאת על כל אחת ואחת – if there was certain knowledge/awareness in-between, so too, with awareness/knowledge of doubtful consumption [of forbidden fat], he brings two suspended guilt-offerings.

חלב ונותר לפניו – and he thought that both of them were permitted fat that is acceptable.

אשתו נדה ואחותו עמו בבית – he had sexual intercourse with one of them, while thinking to have sex with his ritually pure wife, and it was found that his wife was a menstruating woman, and another doubt, as to which of them (i.e., his sister or his menstruating wife) he had sexual relations with.

ועשה מלאכה בהן בין השמשות – thinking that it was a weekday.

ר' אליעזר מחייב חטאת – whichever way you turn , if he ate forbidden fat, he is liable, if he ate left-over, he is liable, and similarly for all of them.

ורבי יהושע פוטר – for regarding the sin-offering, it is written (Leviticus 4:13): “or the sin of which he is guilty [is brought to his knowledge – he shall bring as his offering a male goat without blemish],” until he would be made known to him in how he sinned. And Rabbi Eliezer [states] that this “of the sin of which he is guilty” is needed except for someone acting unawares (i.e., having n intention of doing so) the labors on the Sabbath, as for example, he had intended to cut off what was detached but cut what was attached, that he is exempt, for since he didn’t intend to make a forbidden cutting, and especially when acting unawares with work on Shabbat that he is exempt, because the Torah forbade planned, thoughtful, creative labor, but acting unawares regarding fats and illicit sexual relationships, as, for example, that he ate fat or he had sexual relations with someone forbidden to him on account of consanguinity that he didn’t intend, he is liable, according to everyone, for he benefitted [from it].

לא נחלקו – Rabbi Eliezer who stated that we don’t require that he knew in what he had sinned, he did not dispute on Rabbi Yehoshua, and he agrees with him that a person who does creative work at twilight whether on Shabbat or on Yom Kippur, he is exempt.

שאני אומר – half the measure of creative work was done on Shabbat and half the measurement on Yom Kippur, and there isn’t here the liability of a sin-offering.

מעין איזה מלאכה עשה – if he ploughed or sowed.

פוטרו היה רבי יהושע אף מאשם תלוי – for regarding the suspended guilt offering, it is written (Leviticus 5:17): “And when a person, without knowing it, [sins in regard to any of the LORD’s commandments about things not to be done, and then realizes his guilt],” excluding this one who knows that he sinned, but rather, that the sin is not something specific, and the sin-offering he is also not liable for, for even though he knew that he sinned, whichever way you turn, anyway, it was not made clear to him in what he way he had sinned. But the Halakhic decision is that he is liable for a suspended guilt-offering, whether regarding fat and left-over before him, where it is possible to have the matter verified, whether with regarding to performing creative labor at twilight, whether on Shabbat or on Yom Kippur, where it is impossible to have the matter verified, and similarly with his wife who is a menstruating woman and his sister in the house, and he acted inadvertently with one of them, in all of these, he brings a suspended guilt-offering.

משום שם אחד (subject to a single category) – as, for example, two menstruating women with him in the house, and he acted inadvertently with one of them.

Introduction This mishnah is a continuation of yesterday’s mishnah. Later sages continue to argue what Rabbi Eliezer and Rabbi Joshua were arguing about.

שהוא חייב – for behold he knew in how he sinned.

Rabbi Shimon and Rabbi Shimon Shezuri say: They did not dispute regarding transgression of the same name, that in that case he is liable. According to these rabbis, Rabbi Joshua agrees that if he is not certain what labor he did, but he knows that it was one of two possibilities that are both “of the same name,” meaning of the same category, that he is liable. For example, if he picked some sort of fruit, but he is not sure what type of fruit he picked grapes or figs. In this case, he definitely violated the transgression of “reaping” and therefore, Rabbi Joshua agrees that he is liable.

על דבר שהוא משום שני שמות (concerning something subject to two distinct categories) – as, for example, it is doubtful if he had reaped or doubtful if he had milled/ground up.

About what did they dispute? About transgressions of different names: Rabbi Eliezer declares him liable to a hatat, And Rabbi Joshua declares him exempt. They disagree about a case where he transgressed one of two possible categories of transgression, for instance he ate something forbidden but he is not sure whether it was helev or notar.

אפילו נתכוין ללקט תאנים וליקט ענבים – in the Gemara (Tractate Keritot 19b-20a) it explains the matter of of Rabbi Yehudah who intended to harvest figs first and afterwards grapes, and his hand went to the latter [first], and he harvested the grapes first and afterwards the figs. And similarly, if he had the intention of harvesting the black ones first and afterwards the white ones, and the matter was changed and he harvested the white ones first and afterwards the black ones,

Rabbi Judah said: even if he intended to pick figs and he picked grapes, or grapes and he picked figs, white [grapes] and he picked black ones, or black and he picked white ones Rabbi Eliezer declares him liable to a hatat. And Rabbi Joshua declares him exempt. Rabbi Judah is directly opposed to Rabbi Shimon and Rabbi Shimon Shezuri. Whereas the latter say that Rabbi Joshua exempts only if he is not sure what category of labor he performed, Rabbi Joshua exempts him even if he doesn’t know what color the grapes were, and even if he didn’t fulfill his intention as to what color grapes or figs he wanted to pick.

ר' אליעזר מחייב חטאת – for since he had intended for both of them, and it doesn’t matter to us which was earlier and which came later.

Rabbi Judah said: I wonder whether Rabbi Joshua indeed declared him exempt in such a case. For then why is it written, “with which he has sinned” (Leviticus 4:23)? To exclude mindless action. Rabbi Judah then acts surprised that Rabbi Joshua would exempt him from such a case. He therefore adjusts the exact case in which Rabbi Joshua exempts. Rabbi Joshua exempts a person who didn’t intend to do a labor at all. For instance, he intended to pick up a piece of unattached grass from the ground and he accidentally plucked a piece of attached grass. This is called “mindless” action and the doer is therefore exempt. However, if he intends to perform a labor and he does perform that labor, he is liable, even if he does not do exactly what he intended to do.

ור' יהושע פוטר – since at the time of the harvesting, each and every one did not intend for that one, specifically, it was to him like he acted unawares and is exempt. This is the reading.

אמר ר' שמעון תמיהני אם פטר בזה ר' יהושע. אםכן למה נאמר אשר חטה בה – the anonymous teacher of our Mishnah is amazed/surprised on the surprise of Rabbi Shimon, if so, that Rabbi Yehoshua did not exempt him, what does it (i.e., the Torah (Leviticus 4:23) stated: “or the sin of which he is guilty [is brought to his knowledge – he shall bring as his offering a male goat without blemish].” And he answers, except for someone engaged in doing the thing which he had not intended to do, excluding the person who did not have the intention to harvest at all, or that he had the intention to harvest figs alone, and [ended up] harvesting grapes alone, that he didn’t act on his thoughts in any way at all. But the Halakha is according to Rabbi Yehoshua, and like the way Rabbi Yehuda explained his words.