Commentary for Genesis 38:24

כמשלש חדשים ABOUT THREE MONTHS AFTER — the greater part of the first, the greater part of the third and the entire middle (second) one (Genesis Rabbah 85:10). The expression כמשלש חדשים signifies “when the months repeated themselves three times”. The word משלש is similar in form to (Ester 9:19) “and sending (ומשלח) portions”; (Isaiah 11:14), “sending (משלח) forth their hand”. Onkelos renders it similarly כתלתות ירחיא (where תלתות is the infinitive of תַּלַּת “when the months become three”).

AND JUDAH SAID: BRING HER FORTH, AND LET HER BE BURNT! Ephraim Makshoah,¹⁸⁵There are two interpretations for the name ‘Makshoah’: (a) he was a watchman in a cucumber field (kishuim); (b) he was a scholar famous for his great ability in debate (kasheh). See Commentaries to Bereshith Rabbah 84:11. a disciple of Rabbi Meir, said in the name of Rabbi Meir: “Tamar was the daughter of Shem who was a priest.¹⁸⁶See Ramban above, 14:18. They therefore sentenced her to be burnt.”¹⁸⁷See Leviticus 21:9. Rashi quoted this Midrash but did not explain it. And I do not know this law, for a priest’s daughter is not liable to be burned except for harlotry in conjunction with a binding relation to a husband, either espoused or married, as is explained in the Gemara in Tractate Sanhedrin.¹⁸⁸Sanhedrin 51b. However, a priest’s daughter who is waiting to be married by a brother-in-law is not at all liable to death for harlotry. Whether she is an Israelite’s daughter or a priest’s daughter, her punishment is only that of having violated a simple negative precept.¹⁸⁹This would be stripes, but not the death penalty. And should you say that marrying a childless brother’s wife was customary among the Sons of Noah, and that she was regarded by them as having the status of a married woman, and that their prohibitions were punishable by death, it would not be correct. The Rabbis say in Bereshith Rabbah¹⁵⁷85:6. that Judah was the one who first inaugurated the observance of the commandment that a brother marry a childless brother’s widow. And again, in the Gemara in Tractate Sanhedrin,¹⁹⁰Sanhedrin 58a. it is made clear that a childless brother’s widow of the Sons of Noah is not at all liable to any punishment for harlotry.
It appears to me that since Judah was a chief, an officer, and a ruler of the land, his daughter-in-law who committed harlotry against him was not judged by the same law as other people, but as one who degraded royalty. It is for this reason that it is written, And Judah said: Bring her forth, and let her be burnt, for the people came before him to do unto her in accordance with his command, and he declared her guilty of a capital crime because of the superior rank of royalty. Thus he judged her as if she had profaned her father in respect of his priesthood, but this was not the judgment meted out to commoners.
In line with the literal interpretation of Scripture, it is possible that their law was similar to that which is presently customary in some of the countries of Spain, i.e., that a married woman who commits a faithless act is turned over to her husband who decrees death or life for her, as he wishes. Now Tamar was designated for his son Shelah, and in the eyes of their laws she was considered as a married woman.

זנתה תמר כלתך, if you were to ask why Yehudah would believe such accusations which would be hard to prove, the informant added that the signs of her pregnancy spoke for themselves as proof of the accusation being justified.

וגם הנה הרה, she did not even bother to hide her condition which reflects negatively on you. This is similar to a statement by our sages in Yevamot 35 “when a woman had illicit sex she engages in all kinds of bodily convulsions to avoid becoming pregnant and thereby revealing her shame and that of her husband or lover.”

הוציאוה והשרף, "take her out and let her be burned!" The reason for this is that it is the prescribed penalty for adultery amongst the Gentiles as we know from Avodah Zarah 36. It is clear from there that even if the sin did not involve a sexual union forbidden by Biblical law either to Israelites or to Gentiles, the tribunal headed by Noach's son Shem appears to have legislated that a woman who was destined for her brother-in-law was liable to death if she had relations with someone else. As soon as Yehudah realised that he had been her partner, he knew she was free from that decree as it applied only to Gentiles amongst Gentiles, not to partners in a levirate union. Since a father-in-law was not culpable for sleeping with his Noachide daughter-in-law, no crime had been committed seeing Tamar was Jewish. Sotah 10 understands the words ולא יסף עוד לדעתה to mean that Yehudah did not discontinue being intimate with Tamar. This proves that their relationship had not been sinful, i.e. that the father of the deceased could legally perform the rite of the levirate marriage with his daughter-in-law.

ויהי כמשלש חדשים, after, or at the end of. The letter כ is used to describe a quantity, a measure, as in Samuel I 14,14 כעשרים איש, “approximately 20 people.” There are numerous similar examples in Scripture for the use of the prefix כ in that sense. In Bereshit Rabbah 85,10 Sumchus quotes Rabbi Meir as having said that this verse is the source of the statement that we cannot tell by looking at her that a woman is pregnant until 3 months after she conceived. Rabbi Hunna, quoting Rabbi Yosseph, added that what is meant is not that until the end of the third month of pregnancy no signs are visible. The pregnant woman herself can perceive signs after as little as 2 weeks, but outsiders cannot. [I amended the text of Rabbi Hunna’s comment in order to make it understandable. Ed.]

הוציאוה ותשרף, “take her outside to be burned.” Rashi explains this unusual type of the death penalty as due to the fact that Tamar was the daughter of Shem whom we know as the priest of the Supreme G’d from when he blessed Avraham, as well as the fact that he was King of Jerusalem, (Genesis 14) she was subject to this more severe death penalty for adulterous conduct, as per Leviticus Nachmanides questions this, saying that the legislation referred to in Leviticus is reserved for the daughter of a priest who is betrothed but not yet married properly. A widow waiting to be married to her brother-in-law, and therefore forbidden to any other male, is subject to the penalty imposed on violators of a normal negative commandment, not the death penalty. Besides, every capital crime committed by non-Jews is subject to death by the sword, never by burning. Furthermore, Yehudah’s statement צדקה ממני, after becoming aware of his almost fatal error, appears to reinforce Tamar’s guilt even more, a) because he, as the local leader of the region, should have lived a life completely beyond reproach, and certainly should not have slept with a whore; b) she, by engaging in extramarital relations had expressed disdain for the local authority. Keeping these two points in mind, he condemned her to death by burning. [some of these aspects are based on the opinion that Yehudah had realised that the woman he had presumed to have been a whore, was actually a virgin, something that in retrospect made him aware that his sons Er and Onan had never consummated their marriage to Tamar. The people who had brought Tamar before the tribunal had only known that she had become pregnant from someone not her husband and that she had not claimed to have been the victim of rape. Ed.] Looking at the plain unadorned text, we must remember that the law concerning women who had had illicit sexual relations while married, would have been handed over to her husband for him to do with her as he saw fit. Seeing that legally, Tamar was destined to be married to Shelah as soon as Shelah was old enough, she was in the category of a married woman according to local custom. Rabbi Yehudah the pious, explains that Yehudah did not actually condemn Tamar to be burned at the stake, but that she should be branded with a branding iron which would leave an indelible mark on her face so that she would be disgraced for all to see for the rest of her life. As soon as Yehudah found out that he was the father of the child Tamar was carrying, and that therefore she had not been a whore at all, he did not do anything to her. Many raise the question how Yehudah could pronounce judgment, saying: “take her outside and burn her,” seeing that according to Jewish law, a King is not subject to being judged by a court of his subjects, nor is he himself allowed to sit in judgment of anyone. In addition to this legal point, according to Jewish law, whenever a capital crime is dealt with in the court, and a vote is taken as to the guilt or innocence of the accused, the first person polled is the youngest and not the most senior, so as not to sway the judgment of the junior judges. Here we were told only about the presiding judge’s Yehudah’s vote on the subject. A third difficulty is how could Yehudah, a relative, and therefore a biased participant, be allowed to be present at these proceedings at all? [all of the preceding is of course, based on the assumption that just as the brothers observed Torah law although it was not yet revealed to them as legislation, they complied also with the wider ramifications of Torah laws as found in the written text. Ed.] The answers suggested to these various reservations of our sages about Yehudah’s conduct, is that the trial of Tamar was conducted by Yitzchok, Yaakov and Yehudah being the tribunal. Seeing that Yehudah was the junior member of this tribunal, we are told about his vote first, something completely in accordance with Jewish law.. Another view voiced by a Midrash, claims that Tamar’s father, Shem, personally sat in judgment of her. With all due respect, this is chronologically impossible. A review of the relevant historical data will reveal that Shem had long been dead at that time. [According to Genesis 11,11 Shem died 501 years after the deluge, i.e. in the year 2157 after the creation of Adam. The Exodus occurred in the year 2448, after the Israelites had been in Egypt for 210 years. In other words, when Yedudah came to Egypt in the year 2238 he was about 3 years older than Joseph, who we know was 39-40 years at the time as testified by the Torah. This means that Yehudah was born in or around the year 2195, 27 years after the death of Shem. Ed.] As to the statement in Avodah Zarah 36 that the tribunal of Shem decreed that an unmarried male who has sexual relations with an unmarried female is subject to the death penalty, [seeing that for gentiles there is no other penalty, Ed.] and the origin of that law is attributed to the incident between Yehudah and Tamar, this does not mean that Shem, the founder of that tribunal was still alive, but that the academy and tribunal which he founded continued to bear the name of its founder, Shem.

הוציאוה ותשרף, “take her outside to be burned.” All the onlookers accepted Yehudah’s verdict without argument. This teaches that Yehudah was the local judge of that community. It was the custom in that place that any woman found committing adultery would be burned. Bereshit Rabbah 85,10 quoted by Rashi 38,24 claims that Tamar was the daughter of Shem (the son of Noach whom we know as a Priest for the Supreme G’d from the time of Avraham). Seeing that the Torah provides the death penalty by burning for the daughters of Priests, (Leviticus 21,1) she was sentenced to be burned.

Most of the first and most of the last... Although the fetus is discernable only after three months, a third of the pregnancy, that is for [a full term, i.e.,] nine month pregnancy. But Tamar had a seven-month term. For it is written about her, “When the time came for her to give birth” (v. 27). It is not written, “When her days of pregnancy were completed,” as it does about Rivkah. So explains Rashi on 25:Because of this, the fetus was discernable before three months.

זנתה תמר כלתך, “your daughter-in-law Tamar has committed an act of adultery.” Why did the informant have to add that Tamar had also become pregnant as a result of her act of adultery? Perhaps we can answer that in that era when acts of adultery did not result in the woman becoming pregnant as a result, no legal proceedings were instituted against her. Alternately, proceedings used to be instituted after such a woman had committed adulterous acts with more than one individual.

זנתה תמר כלתך, “Tamar, your daughterinlaw, has committed an act of infidelity.” She observed the norms of a woman awaiting the levirate marriage, and therefore was out of bounds to any other male pending the resolution of her problematic marital status. She would be released only if her prospective “redeemer” refused to honour this obligation.

הרה לזנונים SHE IS WITH CHILD BY HARLOTRY — The word הרה is an adjective, meaning pregnant, like (Exodus 21:22) “a pregnant (הרה) woman” (where הרה can be only an adjective) and as (Song. 7:10) “Clear (ברה) as the sun” (where ברה is an adjective; Rashi perhaps quotes this example to prove also that הרה is from root הרר just as ברה is from ברר)

ותשרף, according to the plain meaning of the text this was the standard penalty for a widow of Tamar’s status who had engaged in illicit sex.

הוציאוה, to the site reserved for such executions by fire.

And the entire middle month. You might ask: How does Rashi know this? Perhaps the opposite is true: it was the entire first and second month, and part of the third. Or, it was part of the first month, and the entire second and third month. The answer is: If so, it would be two months and just ten days [when the child would be discernable]. One of the months would be only ten days, i.e., a third of a month. This is a minority of a month, and cannot be considered a month, whereas the verse says: “About three months later,” implying three whole months. Re’m answers: Perhaps a fetus is discernable after a third of the pregnancy only if it includes the majority of the first month, the whole second month, and the majority of the third month. Since the majority is considered like all, it is counted like three whole months — and the months themselves have an effect [on the fetus’ development].

הוציאהו ותשרף, “take her outside so that she may be burned.” Ephrayim from Kahse, (location) says that Tamar was the daughter of Shem who we heard was the priest of Shalem, and as such if she had committed adultery while still in her father’s house, if sentenced to death for harlotry would die by burning; (Leviticus 21,9) (compare also B’reshit Rabbah 85,10). Yehudah’s judgment is hard to understand as there had been no witnesses to the adultery Tamar had been accused of. Neither had she been warned not to commit such an act and been advised of the potential penalty, as is required by Jewish law. Rabbi Joseph, a resident of the land of Israel, answered this by saying that the generation in which Yehudah lived was morally deprived, and in such circumstances warnings and witnesses are dispensed with when her pregnancy was proof enough of how it had come about. In times like that, the Torah applies additional measures to counteract serious crimes as no one would commit such acts in the presence of acceptable witnesses and after being warned. Rabbi Joseph based himself on the Talmud in tractate Sanhedrin folio 46, where we read as follows: “Rabbi Eliezer son of Yaakov said that the Jewish Court is authorized to decree death penalties not according to the legislation of the Torah when the circumstances demand it, in order to be deterrents to potential sinners.” The Talmud quotes several historical instances when this occurred, including the carrying out of a death penalty against 80 witches on a single day, in spite of the generally accepted rule not to carry out more than one such sentence per day. This happened already during the first hundred years of the period of the second Temple. Joshua’s executing Achan ben Karmi for stealing from the loot of Jericho, obviously without witnesses, why else had lots to be cast to find the guilty party, (Joshua chapter 7) is further proof of the authority of the leader appointed by G–d in circumstances that are not normal. We are still left with the problem that if Tamar was indeed the daughter of Shem, and according to the historical data given to us by the Torah for the time when her father died, this occurred long before the sons of Yehudah were born, how could Yehudah have told her to return to the house of her father and spend there the years of her widowhood there? (Genesis 38,11) [According to the chronology of the Torah, Shem was born about 1557 after Adam was created, and died at the age of 500, i.e. in .2007 after the creation of Adam. Avraham was born in the year 1949 after the creation of Adam, he sired Yitzchak 100 years later. Yitzchok was 60 years old when he fathered Yaakov and Esau, and Yaakov was at least 88 years old when he fathered Yehudah, Tamar’s father in law. You, the reader do not need a calculator to understand the problem created by Rabbi Joseph quoted by our author. Ed.] He must have meant that “her father’s house,” was not to be understood literally, but he meant the family from which she stemmed.

וגם הנה הרה, “and she is also visibly pregnant.” She can no longer hide her condition.

ותשרף AND LET HER BE BURNT — Ephraim the Disputant said in the name of Rabbi Meir: She was the daughter of Shem who was a priest (see Rashi on Genesis 14:18) on this account they sentenced her to be burnt (cf. Leviticus 21:9) (Genesis Rabbah 85:10).

ותשרף, for in accordance with the local practice a widow awaiting to be wed to her brother-in-law was subject to the same rules of adultery as a regularly married woman, i.e. death by burning. At the same time, she was not out of bounds to her father-in-law if he wanted to marry her in order to have seed from his deceased son. Both other sons of the surviving father and the father himself were close relatives of the deceased, after all. The surviving brother of the deceased had the first claim on such a widow, but Tamar, under the circumstances had been forced to become the wife of Yehudah seeing that Shelah had been denied her.

An adjective — pregnant... Rashi means as follows: Although הרה is sometimes a future tense verb, such as in, “Behold you will conceive (הרה) and give birth to a son” (16:11), here it cannot mean this. For how would they know that Tamar will conceive? Thus Rashi explains it as an adjective.

ויאמר יהודה, “Yehudah, acting as judge ruled;” was there no one more qualified to sit in judgment of Tamar than her fatherinlaw? Both Yitzchok and Yaakov were still alive! The fact is that they all sat in judgment of her. The reason why Yehudah was the first one to announce his opinion was because according to the rules of Jewish law when sins or crimes involving capital punishment are discussed the most junior of the judges is asked for his vote first.

She was the daughter of Sheim who was a Kohein... Not literally a daughter, for Sheim had died when Yaakov was fifty, and now Yaakov was over one hundred and ten. Rather, she was from Sheim’s family.

הוציאה ותשרף, “take her outside so that she will be burned to death!” Rashi comments that Tamar was the daughter (offspring) of Shem who had been a priest, and the Torah prescribes the death penalty by burning for women of priestly descent if they are found as having committed incest before marriage while betrothed. (Leviticus 21,9). In this particular instance, Tamar had not legally been betrothed to anyone, so that even after the Torah had been given she would not have been guilty of a capital offence. However, in those days people imposed severe penalties for infidelity in order to act as deterrent to eventual sinners. Besides, as pointed out, Tamar’s ancestor had been deprived of the title “priest” after when Avraham had defeated the four mighty kings of his era he blessed both Avraham and G-d but committed a fatal error by naming Avraham ahead of naming G-d. (Compare Genesis 14,1920) Nonetheless, (assuming Tamar was Shem’s his real daughter she would have been quite old. [Shem died in the year 2156 or 2157 B. C. E. having been born in the year 15567 B. C. E., and Yehudah, Tamar’s fatherinlaw was born in 2186 or 2185 B. C. E. At the time Shem was deprived of his status as a priest Avraham was between 75 and 87 years old, seeing that he had been born in the years 1948 B. C. E. If Tamar had been alive, then it does not require a mathematician to figure out how old a lady Tamar must have been when Yehudah selected her as his daughterinlaw for his son Er. Ed.] Some commentators (Talmud Avodah Zarah, folio 36) claim that even if Tamar had not been a daughter of Shem she would have deserved the death penalty if she had committed adultery with someone other than a partner in a levirate marriage ceremony. This is based on the assumption that she slept with a Canaanite. Even though Shem was dead, the court established by him continued to function after his demise. The court continued to be named after its founder. If you were to say that if Tamar was guilty of the death penalty then so was her partner Yehudah, we would have to answer that in that era an adult surviving would perform the levirate marriage rites, but if only brothers who were minors were available, the father would perform that duty.

They, therefore, sentenced her to be burned. You might ask: Why was she liable for burning? She was neither married nor betrothed, and only then is a Kohein’s daughter burned. Although she needed yibum, this does not make her liable for death because [promiscuity in such a case] is merely a Biblical prohibition: “The wife of the deceased shall not marry out” (Devarim 25:5). The answer is: They sentenced her to death so as to cast fear on the people and save the generation from becoming immoral. And once she had been sentenced to death, it was by burning because we find elsewhere that the execution of a Kohein’s daughter was by burning. Also Rashi holds this view, as he explains, “They, therefore, sentenced her to be burned.” This is as Re’m explained. But Maharshal asks: Was she not unmarried [and not liable for death]? He answers: She [was liable because she] needed yibum.