73b: Children of Unknown Parentage (2)

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=73b&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur will include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

Last week, we began to discuss the Gemara's presentation of what factors we can take into account when determining whether or not a child has the status of an asufi. To review, an asufi is someone whose lineage is not known; typically, this would apply to a baby who has been abandoned and discovered. An asufi is treated as a questionable mamzer, and may only marry other people of questionable status; he may not marry a regular Jew, just in case he is a mamzer, and is also forbidden from marrying a mamzer just in case he is of pure lineage. The common assumption is that if the child was abandoned because he was illegitimate, his mother would have wanted nothing to do with him and would have essentially left him to die. On the other hand, babies were sometimes abandoned by mothers who loved them but were unable to continue to care for them, and left them in the hope that they would be discovered and taken in by someone else. That being the case, Rava bar Rav Huna teaches that if the baby is found in a condition which indicates that it was cared for by its mother, it does not have the status of an asufi.

Our gemara continues that theme. We resume from the fourth line of 73b, with the words of Rava bar Rav Huna.

 

[If he was found] suspended from a palm tree: if a wild animal could get to him, he is considered an asufi; if not, he is not an asufi. [If he was found] on a sorb tree near a town, he is considered an asufi; and if not, he is not an asufi. [If he was found in] a synagogue near a town and people are commonly [found there], he is not an asufi; and if not, he is an asufi.

תלי בדיקלי, אי מטיא ליה חיה - יש בו משום אסופי, אם לאו - אין בו משום אסופי; זרדתא סמיכא למתא - יש בו משום אסופי, ואם לאו - אין בו משום אסופי; בי כנישתא סמיכתא למתא ושכיחי ביה רבים - אין בו משום אסופי, ואם לאו - יש בו משום אסופי.

Our gemara extends the discussion we concluded with last week: not only does the physical condition of the abandoned baby, such as if it has been circumcised, massaged with oil and the like, indicate whether or not it is potentially illegitimate - its location does as well. Thus, if the baby was left in a place of potential danger, it is clear that its mother did not care about its safety, and we must be concerned that the baby is a mamzer. [As mentioned in previous shiurim, the baby is not assumed to be a definite mamzer because not all children who are illegitimately conceived are mamzerim.] If the baby was left in a location which is protected or where he is likely to be found, it seems probable that its mother was simply trying to anonymously put the baby up for adoption; it is not a baby that has been abandoned by an embarrassed and disgusted mother, but by a desperate one, and we do not suspect that it has the status of a mamzer.

The gemara gives three examples of this rule: 1) If the baby has been suspended in a basket from a tree such that predatory animals could harm him, he is considered an asufi; if his mother took the time to protect him from predators, he is presumably not illegitimate, and is not considered an asufi.

2) If he was suspended on a sorb tree near a town, he is an asufi, as that was considered a place inhabited by demons, and therefore dangerous. If it was not near a town, it was not considered dangerous, and the baby would not be an asufi.

3) If he was found in a synagogue that is commonly visited, he was apparently placed there to be found and saved; we can assume that he is not illegitimate. If he was abandoned in a place where he is unlikely to be found, he is an asufi. 

The gemara now quotes another amora who applies these guidelines to other cases:

 

Ameimar said: [if he was found] in a ditch of date pits, he has [the status of] asufi; in the channel of the river - he is not an asufi; in the meltwater - he is an asufi; on the side of the public thoroughfare, he is not an asufi; in the public thoroughfare, he is an asufi.

אמר אמימר: האי פירא דסופלי - יש בו משום אסופי, חריפתא דנהרא - אין בו משום אסופי, פשרי - יש בו משום אסופי; צידי רשות הרבים - אין בו משום אסופי, רשות הרבים - יש בו משום אסופי.

Ameimar continues the pattern of rulings established by Rava bar Rav Huna and also offers three scenarios: 1) If the baby was found abandoned in a ditch used for storing date pits, it is considered an asufi. Date pits were saved for use as animal feed, and the areas where they were stored were considered to be inhabited by demons; thus, it was a dangerous place, and if a baby was abandoned there it would be clear that its mother did not care if it survived. This is an indication that the baby is illegitimate, and it therefore has the status of an asufi. 

2) If the baby is found in a river: If the baby is found (on some floatation device) in the middle of the river where boats commonly pass, it is not considered an asufi. The baby's mother clearly went to some trouble to leave it in the middle of the river, and apparently did so in order to ensure that one of the boats would find the baby and it would be saved. On the other hand, if the baby is left in the water by the river banks, where boats do not pass, it is considered an asufi. ("Meltwater" refers to river banks, places where the river swells when snow melts.)

3) If the baby is found in the public thoroughfare: in talmudic times, towns typically had a public thoroughfare (reshut ha-rabbim) which was very busy and full of traffic. The sides of the reshut ha-rabbim were lightly used and were protected from traffic. Thus, if the baby was left in the reshut ha-rabbim proper, where it was likely to be trampled by the flow of traffic, it can be presumed to be illegitimate, and is considered an asufi. If the baby was found on the side of the reshut ha-rabbim, where it was unlikely to be injured but likely to be found, it is not considered an asufi.

 

The gemara continues with a discussion of another factor in determining whether or not a child will have the status of an asufi. We are on the fourteenth line of 73b.  

 

Rava said: "And in years of famine, he is not an asufi." The [teaching] of Rava; to which [previous statement] does it refer? If you say to the [statement regarding a] public thoroughfare, since it is a year of famine she kills it? And if it is rather referring to [the statement regarding] the side of the public thoroughfare, why does he mention years of famine? Even if it is not a year of famine [the child is not an asufi]!

אמר רבא: ובשני רעבון - אין בו משום אסופי. הא דרבא אהייא? אילימא ארשות הרבים, איידי דשני רעבון קטלא ליה? ואלא אצידי רשות הרבים, מאי איריא שני רעבון? אפילו בלא שני רעבון!

The gemara here begins by quoting Rava, who teaches that there is a leniency in a year of famine, when many families might find themselves in desperate straits. The gemara questions which policy this leniency is meant to modify. If we were to attempt to apply his guidelines to the case of a baby abandoned in or next to a reshut ha-rabbim, we encounter difficulty: If he were left in the reshut ha-rabbim proper, why should we be lenient just because it is a year of famine? Unless the baby was illegitimate, its mother would never have left it to die! And if the baby was left in a relatively safe area on the side of the reshut ha-rabbim, we don't consider it to be an asufi even if it is not a year of famine! 

The gemara continues to investigate the intent of Rava's leniency:

 

Rather, Rava's statement  referred to that which Rav Yehuda said in the name of Rabbi Abba in the name of Rabbi Yehuda bar Zavdi in the name of Rav: "As long as it [the baby] is in the marketplace - its father and mother are believed about him; [once he has been] gathered from the marketplace - they are not believed about him." What is the reason? Rava said: "Because the name (status of) asufi has gone out about him." And Rava said: "In years of famine, even though he has been gathered from the marketplace - his father and mother are believed about him."

אלא כי אתמר דרבא - אהא דאמר רב יהודה אמר רבי אבא אמר רבי יהודה בר זבדי אמר רב: כל זמן שבשוק - אביו ואמו נאמנים עליו; נאסף מן השוק - אין נאמנים עליו. מאי טעמא? אמר רבא: הואיל ויצא עליו שם אסופי; ואמר רבא: ובשני רעבון, אע"פ (אף על פי) שנאסף מן השוק - אביו ואמו נאמנים עליו.

The gemara explains that Rava qualifies the ruling of Rav, who asserted that if people come forward claiming to be the parents of the abandoned baby while it is still in the marketplace (a reshut ha-rabbim), they are believed - it is, after all, unlikely that they would make this claim were it not factually correct. Once the baby has been taken in and is declared to be an asufi, the parents are not believed to the extent that we can remove the asufi status; change of personal status once it has been conferred is a serious matter and requires hard evidence. Nevertheless, Rava argues, in years of famine we do believe those who claim to be a parent of the baby left in the reshut ha-rabbim even if it has already been taken in. 

Why should we believe a parent who claims to have abandoned his legitimate child in a reshut ha-rabbim? What about the gemara's earlier question, that parents are unlikely to leave their children in a place of grave danger, such as a reshut ha-rabbim, even when faced with desperate circumstances? Ritva (13th-14th century Spanish scholar) explains that we assume that the child was left on the side of the reshut ha-rabbim and subsequently rolled or was moved to the reshut ha-rabbim proper. Admittedly, this is unlikely. Nonetheless, since it is probable that those claiming to be the missing parents are being truthful, and there is some way to explain how the baby ended up in the reshut ha-rabbim, we believe the parents.

 

Why should Rava's leniency only apply in a time of famine? If we are willing to believe the parents, why not believe them in regular years as well? Look at Rashi (s.v. Bi-shnei ra'avon) and see if you can figure out his take on this issue.

 

Rashi here explains that in times of famine, many babies would unfortunately be abandoned. It would be undesirable to have so many people permanently labeled as asufim just because their parents identified themselves after they were taken in by others; therefore, they ascertained that in times of famine we should believe the parents even after the baby is no longer in the reshut ha-rabbim. According to this answer, there is no real reason to believe the parents more in a time of famine than in regular years. Even in non-famine years it is likely that the parents are being truthful; however, procedurally, we do not take their word for it once we have declared the baby to be an asufi. That being the case, the Sages were able to waive this procedure in order to avoid a preponderance of asufim. Perhaps this must be taken together with the fact that the entire prohibition of asufim is of rabbinic origin; therefore, the Sages had more latitude in determining when to apply the procedures that determine this status.

Rambam (Hilkhot Issurei Bi'ah 14:30) offers a different explanation: in a time of famine, it is understandable that the parents did not identify themselves right away - the whole point of abandoning the baby was so that someone else could find him and support him. Therefore, we believe the parents even after the child has been taken in. The implication is that in regular years we are somewhat distrustful of the parents, while in a time of famine we are more likely to believe that they abandoned him due to their inability to support him, which explains as well why they delayed identifying themselves.

This concludes the gemara's treatment of the category of asufi. To summarize, the gemara explained the source and reason for the prohibition of asufim marrying into the community, parameters of when an abandoned child gets the status of an asufi, and if it is possible to remove that status once it has been conferred.