Asham of False Oaths: Why Does the Offender Confess?

A Guilt Offering for Taking Property and Swearing Falsely about It

Leviticus 1–5 lays out the rules for Israelites bringing various types of sacrifices. The final sacrifice is an asham (guilt offering)^[1] for a two-step infraction.

Step 1—Committing a Property Offense

^{ויקרא ה:כא} נֶפֶשׁ כִּי תֶחֱטָא וּמָעֲלָה מַעַל בַּי־הוָה וְכִחֵשׁ בַּעֲמִיתוֹ בְּפִקָּדוֹן אוֹ־בִתְשׂוּמֶת יָד אוֹ בְגָזֵל אוֹ עָשַׁק אֶת־עֲמִיתוֹ ^ה:כב אוֹ־מָצָא אֲבֵדָה וְכִחֶשׁ בָּהּ...

^{Lev 5:21} When a person sins and commits a trespass against YHWH by dealing deceitfully with his fellow in the matter of a deposit or a pledge, or through robbery, or by defrauding his fellow, ^5:22 or by finding something lost and lying about it…

Any one of these offenses seems to be serious enough to explain the need to bring a guilt offering. However, the case continues with a second offense, and implies that only then is the offering mandatory.

Step 2—Swearing Falsely about the Offense

^ה:כב ...וְנִשְׁבַּע עַל־שָׁקֶר עַל־אַחַת מִכֹּל אֲשֶׁר־יַעֲשֶׂה הָאָדָם לַחֲטֹא בָהֵנָּה.

^5:22 … if he swears falsely regarding any one of the various things that one may do and sin thereby.

It seems strange that the Torah here adds this second offense. To avoid this problem, Abraham ibn Ezra (1089–1167) suggests that the false oath is just another example of a sin for which the asham will be necessary:

ונשבע על שקר—פירושו: או נשבע על ממון שיבקש אדם ממנו. והעד: או מכל אשר ישבע עליו לשקר.

“And he swore falsely”—meaning, or he swore [falsely] about money that is fellow demanded from him. And the proof [that this is the meaning comes from the later restatement of the same sin in v. 24]: “or from anything about which he swore falsely.”

This is an unlikely translation considering that the phrase about the false oath is not presented the same way as the long list in vv. 21-22a but instead seems to reflect back on the previous offenses. Thus, the false oath here is a second wrongdoing on top of whatever previously listed property sin the perpetrator committed.

Exculpatory Oaths

Verse 22b describes what scholars call exculpatory oaths, where the accused swears innocence, that she or he has not committed a particular offense. Such oaths are widely attested in ancient Near Eastern law collections (such as the Laws of Hammurabi) and in trial records from Mesopotamia. They take place when one party accuses another party of wrongdoing, but without evidence or eyewitness testimony to back it up.

Let us consider two examples of exculpatory oaths that appear in the Pentateuchal law collections.^[2]

Adultery (Num 5)—A woman suspected of adultery by her husband, וְעֵד אֵין בָּהּ, “and there is no eyewitness against her” (v. 13), is forced to swear an oath of innocence.

Herding Mishap (Exod 22)—A shepherd watching someone else’s animal:

^{שמות כב:ט} כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ חֲמוֹר אוֹ שׁוֹר אוֹ שֶׂה וְכָל בְּהֵמָה לִשְׁמֹר וּמֵת אוֹ נִשְׁבַּר אוֹ נִשְׁבָּה אֵין רֹאֶה ^כב:י שְׁבֻעַת יְ־הוָה תִּהְיֶה בֵּין שְׁנֵיהֶם אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ וְלָקַח בְּעָלָיו וְלֹא יְשַׁלֵּם

^{Exod 22:9} When a man gives to another an ass, an ox, a sheep or any other animal to guard, and it dies or is injured or is carried off, with no witness about, ^22:10 an oath before YHWH shall decide between the two of them that the one has not laid hands on the property of the other; the owner must acquiesce, and no restitution shall be made.

We see from both cases, the administration of an oath occurs in a case when the accusing party has no eyewitness.^[3] The oath in Leviticus 5, therefore, is likely a case where forensic evidence is unavailable.^[4] Although the accuser cannot prove a claim against the defendant, the Torah here would require them to swear an exculpatory oath, which is enough for the judges to rule in their favor.

The logic behind this practice is that the gravity of swearing by the deity—whether by YHWH in the Bible or by Bel, Nabû, etc. in Mesopotamian legal texts—ensured that in most cases, an accused party would not dare swear falsely in their name. Leviticus 5:20–26 envisions a situation where this assumption has failed, and the thief or other lawbreaker has gotten away with their wrongdoing.

The Offender is Ashem

The case here takes a strange turn. Although the thief apparently swore an exculpatory oath and would thus have been considered innocent in the eyes of the law, for some reason, the thief confesses anyway and returns the stolen items.

^{ויקרא ה:כג} וְהָיָה כִּי־יֶחֱטָא וְאָשֵׁם וְהֵשִׁיב אֶת־הַגְּזֵלָה אֲשֶׁר גָּזָל אוֹ אֶת־הָעֹשֶׁק אֲשֶׁר עָשָׁק אוֹ אֶת־הַפִּקָּדוֹן אֲשֶׁר הָפְקַד אִתּוֹ אוֹ אֶת־הָאֲבֵדָה אֲשֶׁר מָצָא ^ה:כד אוֹ מִכֹּל אֲשֶׁר־יִשָּׁבַע עָלָיו לַשֶּׁקֶר...

^{Lev 5:23} When he has thus sinned, and is guilty (ve-ashem), he restores that which he got through robbery or fraud, or the deposit that was entrusted to him, or the lost thing that he found, ^5:24 or anything else about which he swore falsely…

Why would someone who had the gall to swear falsely by YHWH in the first place then change course and admit what they had done? The answer depends on how we translate וְאָשֵׁם (ve-ashem)—rendered above as “is guilty”—in this context.

Realizing Guilt—NJPS translates the phrase as “realizing his guilt,” but this makes little sense in context. As noted by the expert in biblical Priestly literature, Jacob Milgrom (1923–2010), although such a translation works for inadvertent sins, in this case, the offense was deliberate: the offender lied and then swore an oath saying that the lie was true.^[5]

Feeling Guilty—Milgrom understands ve-ashem as referring to a feeling of guilt.^[6] In this case, the offender experiences “qualms, pangs, remorse, and contrition” and feels “conscience-smitten or guilt-stricken.”^[7] This feeling is what Baruch Schwartz has called the “psychological component” that the term ashem may bear.^[8] Yet, while it is certainly possible that our offender may have indeed felt pangs of guilt, a psychological reading of the law seems unlikely.^[9]

Becoming Guilty—A third approach, suggested by Bruce Wells of the University of Texas at Austin, is that the term should be translated as “becoming guilty,” reflecting an experience of physical or material suffering.^[10] For example, the guilty person may experience illness or financial loss, which the offender would interpret as punishment for wrongdoing.^[11]

If I Swear Falsely, Then… What?

The physical suffering that ve-ashem denotes is directly related to the false oath. Biblical and comparative evidence suggest that the exculpatory oath would have been formulated conditionally: “If I committed such and such (then may such and such befall me)” – with the punishment in the apodosis (the “then” clause).

Sometimes, the apodosis is explicit, like what we see with the adultery case referenced above, in which the presiding priest says to the woman:

^{במדבר ה:כא}...יִתֵּן יְ־הוָה אוֹתָךְ לְאָלָה וְלִשְׁבֻעָה בְּתוֹךְ עַמֵּךְ בְּתֵת יְ־הוָה אֶת יְרֵכֵךְ נֹפֶלֶת וְאֶת בִּטְנֵךְ צָבָה. ^ה:כב וּבָאוּ הַמַּיִם הַמְאָרְרִים הָאֵלֶּה בְּמֵעַיִךְ לַצְבּוֹת בֶּטֶן וְלַנְפִּל יָרֵךְ וְאָמְרָה הָאִשָּׁה אָמֵן אָמֵן.

^{Num 5:21} … “May YHWH make you a curse and an imprecation among your people, as YHWH causes your thigh to sag and your belly to distend; ^5:22 may this water that induces the spell enter your body, causing the belly to distend and the thigh to sag.” And the woman shall say, “Amen, amen!”

In addition, the well-known oath about forgetting Jerusalem, sung at Jewish weddings, contains an explicit apodosis:

^{תהלים קלז:ה} אִם אֶשְׁכָּחֵךְ יְרוּשָׁלָ‍ִם תִּשְׁכַּח יְמִינִי. ^קלז:ו תִּדְבַּק לְשׁוֹנִי לְחִכִּי אִם לֹא אֶזְכְּרֵכִי אִם לֹא אַעֲלֶה אֶת יְרוּשָׁלַ‍ִם עַל רֹאשׁ שִׂמְחָתִי.

^{Ps 137:5} If I forget you, O Jerusalem, let my right hand wither; ^137:6 let my tongue stick to my palate if I cease to think of you, if I do not keep Jerusalem in memory even at my happiest hour.^[12]

Similarly, in Job 31, Job includes a number of oaths with various negative consequences such as:

^{איוב לא:כא} אִם הֲנִיפוֹתִי עַל יָתוֹם יָדִי כִּי אֶרְאֶה בַשַּׁעַר עֶזְרָתִי. ^לא:כב כְּתֵפִי מִשִּׁכְמָה תִפּוֹל וְאֶזְרֹעִי מִקָּנָה תִשָּׁבֵר.

^{Job 31:21} If I raised my hand against the fatherless, looking to my supporters in the gate, ^31:22 May my arm drop off my shoulder; My forearm break off at the elbow.

Other consequences mentioned by Job in this chapter are agricultural loss, financial ruin, property damage, alienation of one’s spouse, and murder (vv. 5–10, 38–40). We see similar types of negative consequences for false oaths in Mesopotamian texts, such as (UET 6, 402):

The one who swears a (false) oath by Nanna and Šamaš will be covered with leprosy. He will become poor and have no heir.^[13]

Other consequences include rejection by deities, death at the hand of a deity or family member, and childlessness.^[14]

Nevertheless, most biblical and ancient Near Eastern oath formulas—exculpatory or otherwise—omit an apodosis, leaving it implied. A classic example is the oath formula, “may God do this to me and more,” which appears numerous times in the Bible. For example, when Ruth swears not to leave her mother-in-law Naomi, she says:

^{רות א:יז} ...כֹּה יַעֲשֶׂה יְ־הוָה לִי וְכֹה יֹסִיף כִּי הַמָּוֶת יַפְרִיד בֵּינִי וּבֵינֵךְ.

^{Ruth 1:17} …Thus and more may YHWH do to me if anything but death parts me from you.^[15]

The oath doesn’t say what it is YHWH should do to her if she violates the oath, but the implication, of course, is that it would be very unpleasant. It seems likely that the reason so many oaths lack a specific apodosis is based on a fear that even expressing the consequences of an oath could inadvertently cause them to take effect.^[16]

The point is that the violation of oaths was not simply a cause for feeling guilty, but it was believed that such violations bring about the explicit or implicit threat in the oath’s apodosis. I suggest, therefore, building on Wells, that ve-ashem here means that the person has begun to experience suffering that they interpret as the effects of divine wrath in fulfillment of the apodosis of the false oath.

The perpetrator would be particularly susceptible to such a belief if the oath envisioned in Leviticus 5:23 was one of the many such oaths that came with only an implied—rather than explicitly stated—consequence. When the false swearer begins to suffer in any way, they interpret their suffering not just as the consequence of their wrongdoing, but as the fruition of the implied or spoken apodosis of the oath they know they swore falsely.^[17]

The Small Penalty Clause

The law In Leviticus 5 continues, mandating a penalty payment:

^{ויקרא ה:כד}...וְשִׁלַּם אֹתוֹ בְּרֹאשׁוֹ וַחֲמִשִׁתָיו יֹסֵף עָלָיו לַאֲשֶׁר הוּא לוֹ יִתְּנֶנּוּ בְּיוֹם אַשְׁמָתוֹ.

^{Lev 5:24} …He shall repay the principal amount and add a fifth part to it. He shall pay it to its owner on the day of his ashmah.

The penalty payment here is significantly less than the comparable penalty clause of paying double that we find the cases of theft described in the Covenant Collection (Exod 22:6–8).^[18]

One reason^[19] for the lower penalty here is because, unlike in Exodus, the offender was convicted by the court, whereas here, the offender confessed to the crime without having been convicted.^[20] Another may be because the offender has already suffered some divine punishment, because of the violation of the oath.^[21]

The Function of the Guilt Offering

Whatever the reason for the relatively small penalty clause, the Priestly text is, unsurprisingly, more focused on the oath violation than the original property offense.^[22] This, then, is the reason for the asham offering:

^{ויקרא ה:כה} וְאֶת־אֲשָׁמוֹ יָבִיא לַי־הוָה אַיִל תָּמִים מִן־הַצֹּאן בְּעֶרְכְּךָ לְאָשָׁם אֶל־הַכֹּהֵן ^ה:כו וְכִפֶּר עָלָיו הַכֹּהֵן לִפְנֵי יְ־הוָה וְנִסְלַח לוֹ עַל־אַחַת מִכֹּל אֲשֶׁר־יַעֲשֶׂה לְאַשְׁמָה בָהּ.

^{Lev 5:25} Then he shall bring to the priest, as his penalty to YHWH, a ram without blemish from the flock, or the equivalent, as a guilt offering. ^5:26 The priest shall make expiation on his behalf before YHWH, and he shall be forgiven for whatever he may have done to draw blame thereby.

In sum, although the case here concerns an individual who has committed a property violation against another person, the false exculpatory oath overshadows the original wrongdoing. Such offenders come to the Temple in the belief that they have been afflicted by divine punishment as a result of the oath and must make restitution. Once the property is returned, plus a fifth more, the priest can then offer the asham on their behalf, atoning for the sin and, ostensibly, putting an end to the person’s affliction.