The Torah in Parashat Vayikra (5:17-18) addresses the case of a person who performed an act which may have transgressed a command, but he is unsure. In such a case, the individual must offer a sacrifice called “Asham Talui” to atone for possibly having committed a transgression. This applies specifically if the transgression which may have been committed is one for which one would be liable to Karet (eternal excision from the Jewish People) if he transgresses intentionally, and a Hatat (sin-offering) if he transgresses unintentionally.
The classic case of Asham Talui is where one had in front of him two pieces of meat – one which was Heleb (forbidden fat), and the other which was entirely permissible for consumption. The person then ate one of the two pieces, but he does not know which one he ate, and the remaining piece was lost and thus could not be identified. As eating Heleb is punishable by Karet, the individual in this case would be required to offer an Asham Talui, because he may have violated the prohibition of Heleb.
The Sefer Ha’hinuch explains that the Torah requires the individual to offer an atonement sacrifice in such a case in order to encourage people to be attentive and careful to avoid wrongdoing. If a person is unsure whether or not he committed a violation, this means he was not paying close enough attention to what he was doing – and it is for this inattentiveness that he requires atonement. Indeed, if a person learns after offering an Asham Talui that he did, in fact, commit the sin in question, then he must bring a sin-offering to atone for the wrongful act. This proves that an Asham Talui atones not for the sin which may have been committed, but rather for what the Sefer Ha’hinuch calls “Asluto” – his “laziness,” or carelessness, which allowed him to possibly commit a severe transgression.
An Asham Talui is required only if one knows for certain that the situation involved a potential prohibition. For example, in the case described earlier, there was certainly a forbidden piece of Heleb, and the question is only whether this is the piece which the person ate. If, however, one ate a single piece of meat, and he then realized that it might have been Heleb, then he does not require an Asham Talui, because it is not certain that something forbidden was present. Another example of a situation requiring an Asham Talui is where one had an intimate relationship with a woman who had been married, but it is uncertain whether she had received a valid divorce prior to the relationship. In this instance, too, it is certain that the woman in question had been married, such that relations with her were forbidden, but it is uncertain whether she was still married at the time of the intimate encounter. In such a case, an Asham Talui would be required. This is in contrast to a case of a relationship with an unmarried woman who had received a Halachically questionable Kiddushin (betrothal). In this situation, it is not clear to begin with that the woman was an Eshet Ish (married woman) with whom relations are forbidden, as every woman is presumed unmarried and hence permissible until we have reason to believe otherwise. This case, then, is akin to the case of one who ate a piece of meat which may have been Heleb, and thus an Asham Talui is not required.
This command applies only in the times of the Bet Ha’mikdash, and it is binding upon both men and women. One who is required to offer an Asham Talui but fails to do so has neglected a Misvat Aseh (affirmative command).
The Rambam, in Hilchot Tum’at Met (9:12), takes a controversial position regarding the famous principle of “Safek De’Orayta Le’Humra” – that we must be stringent in situations of Halachic uncertainty when Torah law is at stake. (This is in contrast to laws enacted by the Rabbis, regarding which we may act leniently in situations of uncertainty.) According to the Rambam, this rule was enacted by the Sages; on the level of Torah law, we may be lenient in situations of Halachic uncertainty, even if this means potentially violating a Torah law, but the Sages required acting stringently. Many later writers questioned the Rambam’s theory in light of the obligation of Asham Talui. In cases where one is in doubt as to whether he transgressed a prohibition, the Torah mandates that he must bring a sacrifice. Does this not imply that the Torah itself requires avoiding situations of uncertainty, and acting stringently when in doubt regarding the violation of Torah law?
The Kessef Misheh (commentary to the Rambam’s Mishneh Torah by Maran, Rav Yosef Karo, 1488-1575) writes that he discovered a manuscript written by the Rambam himself, addressing this question. In this manuscript, the Rambam writes that a distinction exists between Torah prohibitions punishable by Karet, and other Torah laws. When it comes to prohibitions punishable by Karet, then indeed, the Torah itself requires one to assume the stringent possibility, as evidenced by the law of Asham Talui. With regard, however, to other laws, then the Torah does not require acting stringently in situations of uncertainty, and this requirement was enacted later by the Sages.
Although the obligation of Asham Talui does not apply nowadays in the absence of the Bet Ha’mikdash, its underlying message – the importance of attentiveness and caution to avoid wrongdoing – is as relevant now as ever. Rav Yehuda Ades, Rosh Yeshiva of Kol Yaakob (contemporary), was once asked the question of which is worse – forgetting to add Ya’aleh Ve’yavo in the Amida prayer on Rosh Hodesh, or not remembering whether one recited Ya’aleh Ve’yabo. He replied that not remembering whether one added Ya’aleh Ve’yabo is worse, because one who cannot remember must have been inattentive while praying. If one paid attention to his prayer but forgot it was Rosh Hodesh, this is a mistake which all people are prone to making on occasion. It is far worse to pray mindlessly, without paying attention. The law of Asham Talui teaches of the need to live attentively, to be mindful of our conduct and try to ensure that we are always doing the right thing.