Oops
The concept of שוגג, specifically doing something that is treated differently than if one did so deliberately or as a result of coercion, can be split into multiple categories based on what exactly is the reason why we are considering the action as a שוגג.
NOTE: We will be using “Oops” as a generic term when not using the Hebrew שוגג to ensure that when a specific type of ‘oops’ is meant, then it will be easy for the reader to discern that as a synonym of ‘oops’ will be in use.
In general, this can be split into two main categories:
- Knowledge-based
- Intent-based
When something is done inadvertently; if we are focusing on the reasoning of the person, and not on the action performed, then there two (2) ways in which the oops can cause the person to perform the action, either there is a deficiency in knowledge[1], or there is a disconnect between the intent and the action.
Lack of Knowledge
Knowledge-based oopsies can be divided further into two (2) areas in which knowledge is lacking:
- Error
- Inadvertence
Types of Errors
By ‘error’ we mean an action taken in error, which can be defined in two (2) ways:
- Ignorance – One is ignorant as to the details of the Mitzva, and therefore erroneously believes the action he is taking is perfectly permissible.
- Applicability – One knows the details of the Mitzva, but for whatever reason erroneously believes the Mitzva does not apply to this action, that it is an exception.
Types of Inadvertence
This is in contrast to the type of actions that ‘inadvertently’ occur. When someone does something inadvertently, he does so with full knowledge of the Mitzva and the action he is performing. And yet, there are still two (2) ways in which he can act inadvertently:
- Timing – he was unaware of the current time. Something which is only prohibited at certain times, can be performed at other times. In his case, he lacked knowledge as to what time it was, and therefore, he inadvertently violated a Mitzva.
- Personage or Item – he was unaware of the status of the individual or item involved. An action that can be done with or to one person might be prohibited with another. He inadvertently performed this action with the prohibited individual due to lack of knowledge about the status of that individual.
Lack of Intent
Intent-based oopsies can be divided further into two (2) areas in which the intent is unfulfilled:
- Lack of fulfillment
- Lack of awareness
Lack of fulfillment
When we say the person performed the oopsie with a lack of fulfillment, we mean that intent behind the action that caused the oopsie is not being fulfilled. This can occur in two (2) ways:
- Unintentional Consequences – when a person takes an action in which the intent of that action was to cause one thing, and oops, he ended up unintentionally doing something else. It is the same action that is being done as the one he intended, but the targeted result is an oops, and not the fulfillment of his intent.
- Coercion – when the person taking the action is not fulfilling his own intents but rather being forced to fulfill the intents of another.
For the purposes of this discussion, we will generally omit Coercion, as the Halaĉa has established a separate category for this, namely אונס.
Lack of awareness
A person is normally always considered aware of himself and his actions and their consequences. However, sometimes, it is possible for a person to perform an action without awareness. And what we mean by that can be divided into two (2) types of scenarios:
- Accidents – when the action performed is completely unrelated to what the person intended to do. The actions have nothing to do with the intentions of the person. He was unaware that what occurred was going to happen. It was an accident.
- Not in possession of one’s faculties – if a person simply did not have his normal mental capacity when the action was taken, he is completely unaware of the oops or the action he took to cause the oops. Be it a permanent lack of awareness or only temporary[2].
To summarize, the types of שגגה that can occur are as follows:
- Ignorance
- Inapplicability
- Bad Timing
- Inadvertent Person or Item
- Unintended Consequences
- Coercion (excluded)
- Accidents
- Not in full possession of one’s faculties
The sources for these are as follows:
Ignorance
ואם כל עדת ישראל ישגו ונעלם דבר מעיני הקהל, ועשו אחת מכל מצות ה’ אשר לא תעשינה ואשמו
And if the entire congregation of the Jewish people will err, and something will be hidden from the ‘eyes of the congregation’, and they do one of all the Mitzvos of G-d which may not be done, and they are guilty.[i]
This verse is talking about a situation in which the Sanhedrin has forgotten a law, and therefore rules erroneously that a forbidden thing is permitted. The person who is coming to court to determine the law, does not himself know the law, and, as he was supposed to, he follows the ruling of the Sanhedrin in doing an act which should be forbidden. He does so in ignorance of the law. In such a case, the Gemara[ii] determines that since this was done with a lack of knowledge on his part, he, the perpetrator, is innocent. But this only applies if the person did not know any better.
Inapplicability
או נפש אשר תגע בכל דבר טמא או בנבלת חיה טמאה או בנבלת בהמה טמאה או בנבלת שרץ טמא, ונעלם ממנו והוא טמא ואשם
Or a person who touches anything Tamay; or the Tamay carcass of a wild animal, or the Tamay carcass of a domestic animal, or the Tamay carcass creature – and it [this fact] will be hidden from him, and he is Tamay and guilty.[iii]
או כי יגע בטמאת אדם לכל טמאתו אשר יטמא בה, ונעלם ממנו והוא ידע ואשם
Or if he touches human Tum’ah, for any Tum’ah by which he is rendered Tamay, and it [this fact] was hidden from him, and he is Tamay and guilty.[iv]
The Gemara[v] asks, why does the Torah state ונעלם ממנו twice, since the second verse is seemingly continuing the list in the prior verse, the Torah should only qualify this with ונעלם ממנו once, at the end of the list.
Answer: to apply two (2) different types of העלם – hidden facts, either one knew he was in the Base Hamikdash, but did not know he was Tamay, or he knew he was Tamay, but did not know that he was in the Base Hamikdash. In either case, the person was aware of the full set of laws, but for whatever reason, he erroneously thought these laws do not apply to him.
Bad Timing
ושמרו בני ישראל את השבת, לעשות את השבת לדרתם ברית עולם
And the Jewish people shall guard the Shabbos, to make Shabbos for all generations; a universal covenant.[vi]
Why would the Torah repeat the requirement to both guard the Shabbos and make the Shabbos. The Gemara[vii] notes that in the case where one is traveling in the wilderness, and has lost track of time, and doesn’t know when Shabbos is – he counts six days, and rests on the seventh. Thus, this person is not held responsible for the actions he takes on the day that is actually Shabbos, since he doesn’t know what the day actually is. Later, when he returns to civilization, he adjusts his calendar back to coincide with that of the rest of humanity.
We find a story elsewhere in the Gemara[viii] where this is not just a theoretical exercise but was practically implemented. There was an argument between Rabban Gamliel and Rabbi Yehoshua about the establishment of the month of Tishrei one year. Rabbi Yehoshua calculated astronomically that the testimony provided by the witnesses upon whom Rabban Gamliel was relying on were actually false. To ensure no practical dispute arose among the sages as to when Yom Kippur should occur, Rabban Gamliel ordered Rabbi Yehoshua to appear in the study hall on the date he had calculated for Yom Kippur, wearing leather shoes, and carrying his walking stick and purse.
Regardless of who was correct, one group, either Rabban Gamliel or Rabbi Yehoshua was wrong about the day. And yet, whichever one was wrong is not held responsible for that bad timing.
Inadvertent Person or Item
ויט אליה אל הדרך ויאמר הבה נא אבוא אליך כי לא ידע כי כלתו הוא, ותאמר מה תתן לי כי תבוא אלי
And he turned aside to her to the road, and he said, ‘Please allow me to come to you’ – because he did not know that she was his daughter-in-law. And she said, ‘What will you give me that you will come to me.’[ix]
In this case, Yehuda was walking on the road, and saw Tamar, but did not recognize her. He did not know she was his daughter-in-law – he lacked information about her. Instead, he thought she was a prostitute. He turned to her and propositioned her. In reality, she was only his daughter-in-law in name, since neither one of his sons had properly consummated their marriage to her. Instead they had “plowed inside and planted outside”. Nevertheless, the Torah specifically notes that Yehuda was not culpable of even attempting to sleep with his daughter-in-law, since he did not know who she was.[x]
This tells us that when a person lacks sufficient information about the person or items with which he is committing the forbidden action, then the person is not held responsible for the violation that occurs with that action.
Unintended Consequences
ואתם חשבתם עלי רעה, אלקים חשבה לטבה למען עשה כיום הזה להחית עם רב
And [although] you intended evil against me, the Almighty intended beneficence in order to make [what is happening] today; to keep a great population alive.
Here, the brothers of Yosef intended to cause Yosef harm, by selling him as a slave to Egypt. The Almighty though had other plans, and their sale of Yosef to Egypt was actually the start of his journey to being crowned viceroy of Egypt and bringing about a welfare plan to feed the entire nation and all those who came to trade with Egypt. The Gemara[xi] notes that a good intention can be combined with a good action, but a bad intention cannot be combined with a good action. Therefore, the brothers’ intentions to cause harm are segregated from the action they took.
We see from here that when it comes to an action taken which has unintended consequences; the consequences are divorced from the person who performed the action. It is instead attributable to the outside force (to the Almighty) who caused the unintended consequence to be actualized.
Coercion – אונס
As noted above, we will not be discussing this category here.
Accidents
ואשר יבא את רעהו ביער לחטב עצים ונדחה ידו בגרזן לכרת העץ ונשל הברזל מן העץ ומצא את רעהו ומת, הוא ינוס אל אחת הערים האלה וחי
And in the case where [he] goes with his friend into the forest to chop wood, and as his hand is pushing the ax to cut the tree, the iron flies off the wood[en handle[3]] and finds his friend who dies – he [the accidental killer] shall flee to one of these cities and live.
The Gemara[xii] discusses this case and notes that the friends are proceeding to the forest without any murderous intent, to perform a perfectly normal act, chopping wood. While doing so, an accident occurred that was completely outside his awareness of what should have happened – for if they were negligent, then why note that the woodchopper was in the act of swinging the ax to cut the tree. Instead, the Torah notes that the accident occurred while the woodchopper was doing what he was supposed to be doing.
Not in possession of one’s faculties
ותשקין את אביהן יין בלילה הוא, ותבוא הבכירה ותשכב את אביה ולא ידע בשכבה ובקו֯מה
And they watered their father with wine that night, and the firstborn came and lay with father, and he did not know of her laying and rising.
On the word ובקומה there is a tradition, that this word is written with a dot on top of it. When such dots are added to letters or words in the Torah, they signify that the meaning of the word or letter should be the opposite or absent of that which is actually written. The Gemara[xiii] notes that in this case, although Lot was so inebriated that he did not know what was happening the first night, when his daughter arose, he was aware of that and therefore, the next night, when the younger daughter also got him drunk, he should have prevented himself from drinking too much.
This means that Lot was only held responsible for his negligence in failing to prevent himself from getting drunk a second time. He was not held responsible for his incestuous night with his older daughter – because he was not in possession of his faculties.
Through these varied sources—from the friendly woodchopper to the specific diacritical marks in Beraishis – the Gemara demonstrates that שוגג is not a monolith. It is a component of the spectrum of liability that accounts for human frailty, distinguishing between the total lack of awareness (Lot), the error of the learned (Sanhedrin), and the simple slip of the hand (Axe).
List of verses using this term:
- Vayikra 4:2, 4:22, 4:27, 5:15, 5:18, 22:14
- Bamidbar 15:24, 15:25, 15:26, 15:27, 15:28, 15:29, 35:11, 35:15
- Yehoshua 20:3, 20:9
- Tehillim 119:67
- Iyov 12:16
- Koheless 5:5, 10:5
[1] When speaking of knowledge deficiencies, we are not talking about ignorance as a result of a laziness in studying (Lore) or not bothering to ask a Local Orthodox Rabbi Etc. (L.O.R.E.). A failure to obtain lore is no excuse for doing something wrong. Nevertheless, it can still be treated differently than when the action was not an oops.
[2] If the temporary lack of awareness is a chain reaction from negligence on his part; whether from failing to protect himself from losing his faculties, or failing to prevent the action from occurring while he lacked faculties – then, although the action itself is still a שוגג, he can still be held responsible for his prior negligence.
[3] Rashi: Some sages (Rav and Shmuel argue about this) interpret this as a piece of the wood being cut splinters off and kills, instead of the ax head flying off the handle.
[i] Vayikra 4:13
[ii] Gem. Horayos 2b-3b
[iii] Vayikra 5:2
[iv] Vayikra 5:3
[v] Gem. Shavuos 14b
[vi] Shemos 31:16
[vii] Gem. Shabbos 69b
[viii] Gem. Rosh Hashana 25a
[ix] Beraishis 38:16
[x] See Gem. Sota 10b, Makos 23b and Nazir 23b
[xi] See Gem. Kiddushin 40a & Nazir 23a
[xii] Gem. Makos 7b
[xiii] Gem. Nazir 23a. See also Horayos 10b