The Gemara learns from "b'shgaga" to exclude meizid and from "b'vli da'as" to exclude miskaven. The Gemara then asks that meizid would be chayav misa and not just galus. Rava answers that b'shgaga comes to exclude one who is "omer mutar" from the chiyuv of galus for murder. Abayei asks, wouldn't omer mutar be anoos? Rava answers that I might have thought that omer mutar would have been karov l'meizid and therefore would not have been eligible to have a kapara by going into galus.
Tosfos there (s"v ela prat l'omer) asks that by Shabbos and cheilev it says shgaga, and nevertheless one who violates Shabbos or the issur of cheilev can bring a chatos, i.e. he can have a kapara. Tosfos says that the Gemara in Shabbos (68b) says that this is referring to tinok she'nishba. Tosfos then asks why the case of murder (our Gemara) is different - why should omer mutar for murder be exlcuded from kapara. Tosfos answers that because the pasuk also says b'vli da'as, which excludes miskaven, and because we would normally think that meizid and miskaven are the same thing, we cannot only be talking about meizid. Therefore, an omer mutar by murder does not go into galus and does not have a kapara.
In the shiur that I heard, the magid shiur brought a Chasam Sofer (he didn't say from where) who asks why we could not say that a tinok she'nishba can have a kapara from murder just like he can have one from Shabbos. Why should a tinok she'nishba who thinks murder is mutar not have a kapara. The Chasam Sofer answers that as to murder, any human being should know not to murder, and therefore there is no such thing as a tinok she'nishba by murder. Thus the Chasam Sofer is (apparently) setting up a chiluk between issurim that are intuitive and issurim that I need the Torah to tell me are assur. When an issur is intuitive (a minimum standard of human conduct?) like murder, there is no din of tinok she'nishba, and everyone is equally liable.
I was wondering how much further we could go with the Chasam Sofer's chiluk. Would it apply to gezel? Would it apply to all of the sheva mitzvos bnei Noach generally? What about other "bein adam l'chaveiro type dinim" which are matters of good midos and arguably "common sense" but not among the sheva mitzvos? For example, not speaking Lashon Hara, not taking revenge, or not embarassing someone in public. Would the Chasam Sofer hold that there is no din of tinok she'nishba in those instances?
Carl M. Sherer
I seem to remember seeing a similar thought advanced by the Meshech Chochmah, who took this one step further. He said that even though a Ben Noach is not explicitly commanded on taking oaths, it is clear that oaths are meant to be kept, and a Ben Noach who willfully does not keep them transgresses a sin (this is an answer to the famous question of the Gilyon Hashas on Tosfos in Avoda Zara 5b, DH "Minayin"). I'm sure the Chasam Sofer's idea would apply to Gezel as well, but taking revenge and Lashon Hara do not seem to me to be in this category, as one can often make up good reasons why they should be permitted and understandably so (if we did not have a Torah telling us that it is even forbidden in those situations). Embarrassing someone in public is (at least according to some Poskim) part of the prohibition of killing, and therefore might be included in the Chasam Sofer's idea.
All the best,
Yaakov Montrose