KESUBOS - 015b – בתולה נשאת – פרק ראשון – כתובות, טו ע”ב

If one found an abandoned infant there: if most are idolaters, he is an idolater; if most are Jews, he is a Jew; half and half, he is a Jew.^[1]

מצא בה תינוק מושלך - This is a Mishnah in Seder Taharos, concerning a town in which Jews and idolaters live.

מחצה על מחצה ישראל - Further on the Gemara explains what difference there is between "most are Jews" and "half and half," which the Tanna listed as two separate cases.

And Rav said: They taught this only to sustain him, but for lineage,^[2] not.

לא שנו - That is, that "if most are Jews, he is a Jew."

אלא להחיותו - The court is obligated to support him, because of "that your brother may live with you" (Vayikra 25:36).

אבל ליוחסין לא - If it is a girl, she is forbidden to a kohen. Even where there is no concern that the child is an asufi,^[3] such as those cases we mention in Asarah Yuchasin (Kiddushin 73b) - משלטי הדמיה, a note hung on him, an amulet hung on him - still we are concerned that she may be the daughter of an idolater; and according to the view that a convert woman is unfit for kehunah,^[4] even this young girl is forbidden to a kohen, for in lineage we require two majorities.

And Shmuel said: To clear the rubble off him.^[5]

ושמואל אמר אף לפקח עליו את הגל - On Shabbos we consider him a Jew.

It escaped him, what Rav Yehudah said in the name of Rav: The incident was in the wagons of Tzippori^[6].

אשתמיטתיה - It escaped Rabbi Yirmiyah.

הא דאמר רב יהודה - For there too there were two majorities.

And according to Rav Chanan bar Rava, who said: It was a ruling for the moment,^[7] this is difficult?

ולרב חנן בר רבא דאמר - In the name of Rav.

הוראת שעה היתה - And there there were two majorities, yet he said it was a ruling for the moment, but for later generations two majorities are not required.

קשיא הא - Rav's statement, who said "but for lineage, not" - evidently Rav requires two majorities.

Whoever teaches this does not teach that.^[8]

לא מתני הא - The statement of Rav Yehudah in the name of Rav, "the incident was in the wagons of Tzippori"; there was only one majority, and therefore it was a ruling for the moment.

The matter itself: If one found an abandoned infant there: if most are idolaters, he is an idolater; if most are Jews, he is a Jew; half and half, he is a Jew.^[9]

Rav said: They taught this only to sustain him, but for lineage, not.

And Shmuel said: To clear the rubble off him.

But did Shmuel say so?

מי אמר שמואל הכי - That regarding saving a life we need a majority.

But Rav Yosef said in the name of Rav Yehudah in the name of Shmuel: In saving a life we do not follow the majority!^[10]

אין הולכין כו' - For even when it is in doubt whether he is an idolater or a Jew, in a place where most are idolaters, we clear the rubble.

Rather, when Shmuel's statement was said, it was said on the first clause: If most are idolaters, he is an idolater; Shmuel said: But regarding clearing the rubble off him, it is not so.

ולענין פיקוח נפש אינו כן - For even where most are idolaters we clear the rubble, since in this we do not follow the majority.

If most are idolaters, he is an idolater - for what law?^[11]

למאי הלכתא - Since Shmuel said we clear the rubble off him, evidently he is not an idolater for every matter; so for what law do we consider him an idolater?

Rav Pappa said: To feed him neveilos.^[12]

להאכילו נבלות - Directly; and all the more so that we do not return a lost object to him, and [treat him as an idolater] for damages.

If most are Jews, he is a Jew - for what law?^[13]

Rav Pappa said: To return a lost object to him.^[14]

להחזיר לו אבידה - This is a novelty, for we take it out of the hand of the Jew who acquired it. Moreover, the Rabbis said (Sanhedrin 76b): "One who returns a lost object to a Canaanite, of him the verse says: 'to add drunkenness to thirst'", for he made מצרים equal in importance to Israel; and it is said: "Hashem will not be willing to forgive him."

Half and half, he is a Jew - for what law?^[15]

מחצה על מחצה ישראל למאי הלכתא - You cannot say "to return a lost object to him," for if so, why did the Tanna divide them from one another?

Reish Lakish said: For damages.

לנזקין - As we learned in Bava Kamma (37b): "The ox of a Jew that gored the ox of a Canaanite is exempt; the ox of a Canaanite that gored the ox of a Jew, whether tam or mu'ad, pays full damages"; and a Jew's ox against a Jew's, a tam pays half damages^[16] and a mu'ad pays full damages.

What is the case?

If we say that our ox gored his ox - let him say to him: Bring proof that you are a Jew, and take!^[17]

אילימא כו' - And you say that we judge him as a Jew, and you obligate [the Jew] to pay him half his damage.

לימא ליה - The Jew [can say to him]: Bring proof, for it is half and half, and it is a doubt.

It is needed only where his ox gored our ox: he pays half, and for the other half he says to them: Bring proof that I am not a Jew, and I will give it to you.

לא צריכא כו' - And the Jew claims from him full damages for a tam, as by the law of a Canaanite; and the Tanna teaches us that we judge him as a Jew and he pays only half damages, for he says to him: Bring proof.

Hadran Alach Besulah Nises - We will return to you, Besulah Nises^[18]

Perek Two - Ha'ishah Shenisarmelah

Mishnah. A woman who was widowed or divorced - she says: You married me as a virgin,

מתני' האשה שנתארמלה או נתגרשה - And she claims her kesubah.

and he says: Not so; rather, I married you as a widow.

והוא אומר - This refers to the divorcee; for the widow, the heirs say to her: Our father married you as a widow and you have only a maneh, and the kesubah document is lost.

If there are witnesses that she went out in a hinuma with her hair uncovered, her kesubah is two hundred.^[19]

אם יש עדים - About her marriage: that she went out from her father's house to her husband's house.

בהינומא - The Gemara explains it.

וראשה פרוע - איצטייבליד"ה (in Old French): her hair over her shoulders. So they were accustomed to bring virgins out from their fathers' house to the wedding house.

Rabbi Yochanan ben Berokah says: Even the distribution of roasted grain is proof.^[20]

אף חילוק קליות - They used to distribute roasted grain to the children at the weddings of virgins.

קליות - When the ears are still moist, they dry them in an oven, and they become roasted and stay sweet always.

And Rabbi Yehoshua concedes regarding one who says to his fellow: This field belonged to your father and I bought it from him, that he is believed^[21]

ומודה ר' יהושע - The Gemara explains to what it refers and what he concedes.

Tosfos

ולרב חנן דאמר הוראת שעה היתה - And for later generations one majority suffices - this is difficult. It did not seem reasonable to him to say that it was a ruling for the moment, permitting with two majorities, while for later generations even two majorities do not suffice.

מאן דמתני הא לא מתני הא - The Kuntres^[22] explained that Rav Chanan does not teach that the incident was in the wagons of Tzippori, and there was only one majority; according to his explanation they do not disagree, since for later generations everyone requires two majorities, and they disagree only about how the incident happened. Rabbeinu Chananel^[23] explained that Rav Chanan does not teach "but for lineage, not," and for him one majority suffices for later generations. But his explanation is difficult: for Rav Chanan, Rabbi Yochanan ben Nuri, who ruled like the view that one majority suffices, would pose a difficulty, as the Gemara challenged earlier. Moreover, it is not reasonable that any Amora would disagree with "but for lineage, not," since Rav himself said it, without another Amora reporting it; and that is why, to Rabbi Yirmiyah's challenge, the Gemara did not answer "whoever teaches this does not teach that."

אם רוב עובדי כוכבים עובד כוכבים למאי הלכתא - The Gemara could not say it means not sustaining him, for why mention "most are idolaters"? Even half and half would be the same, since Rav said that he is a Jew to be sustained only where most are Jews.

להחזיר לו אבדה - The Gemara could have said "to sustain him," as Rav said, but it chose "to return a lost object to him" because that is the greater novelty, for it is a grave prohibition, because of "to add drunkenness to thirst," etc. Sustaining him is not so great a novelty, since we support the poor of idolaters along with the poor of Israel. And even according to Shmuel, who said that in money matters we do not follow the majority,^[24] that is only where one sold an ox to his fellow and it was found to be a gorer, where the money came into the seller's hand permissibly and the buyer gave it to him willingly; but here he agrees that we follow the majority.

לא צריכא דנגחיה תורא דידיה כו' - It is puzzling: the Gemara could equally have said "half and half, he is an idolater," where our ox gored his ox. [The whole matter could have been said about goring, but it prefers to find something new in each case. Maharam.]

מתני' האשה. אם יש עדים שיצאת בהינומא כו' - It speaks where she does not hold a kesubah document, for if there is a kesubah, let us look at her kesubah to see whether she is a virgin or a widow. And even according to the view that one who claims after an act of the court^[25] "I paid" is believed, still he is not believed here to say "I married you as a widow" by a migo^[26] that if he wished he could have said "I paid," for it is a migo against witnesses.

ומודה רבי יהושע באומר שדה כו' דנאמן - Rashi's explanation implies that only where the other does not claim it from him is he believed, by a migo that he could have kept silent; but if the other claims it from him, he is not believed. That does not seem right, for the latter clause teaches "and if there are witnesses, etc.", implying that only if there are witnesses that it was his father's is he not believed; but if there are no witnesses, even though the other claims it from him, he is believed, by a migo that he could have said it was never your father's - since the Mishnah did not state "if he claims it from him, he is not believed." And in the Gemara too it asks, "let it teach: this field was yours," implying that it speaks where the other claims it from him, and so he answers: certainly it was yours and I bought it from you. But if the other does not claim it, it does not fit to say "it was yours," since presumably he knows that himself.

Notes

1. 1. This is a Mishnah in Machshirin, [Machshirin 2:7], about a town where Jews and idolaters both live. At the end of the previous amud Rabbi Yirmiyah cited it against the view that lineage needs two majorities, since here a single majority of the town decides the child's status.
2. 2. Yuchasin - lineage: whether the child counts as a Jew of fit descent, so that a girl may marry a kohen. On the previous amud the Gemara discussed whether this needs two majorities, of the town and of the passing company.
3. 3. Asufi - a foundling whose father and mother are unknown. He may be a mamzer, so he may not marry into the congregation. Signs that the child was put down with care, such as an amulet, show he was not abandoned and remove that concern.
4. 4. There is a view that a woman who converted, even as a small child, may not marry a kohen. On that view a girl who may be the daughter of an idolater is unfit for kehunah, unless two majorities show she is of Jewish birth.
5. 5. Clearing the rubble: if a building collapses on Shabbos and the child may be under it, one digs him out, breaking Shabbos as one does to save a Jew's life.
6. 6. The wagons of Tzippori: the case on the previous amud of a foundling girl found in Tzippori on a market day, when caravans came in from elsewhere, who was ruled fit for kehunah. Here both the town and the caravans were mostly Jews, so there were two majorities.
7. 7. Hora'as sha'ah - a ruling given for that occasion only, which does not set the law for later generations.
8. 8. Two traditions of Rav's teaching were handed down. Each one reports only one of the two statements, so they do not contradict each other. Rashi and Tosfos below explain differently which statement Rav Chanan bar Rava's tradition leaves out.
9. 9. The Gemara now goes back to the Mishnah itself. It rules on a foundling by the town's majority: in a town of mostly idolaters he is treated as an idolater, in a town of mostly Jews as a Jew, and where they are even he is still treated as a Jew. Rav and Shmuel then limit or extend what "a Jew" means here.
10. 10. Pikuach nefesh - saving a life. It overrides Shabbos, and Shmuel holds that here we do not follow the majority: even a small chance that a Jew is under the rubble is enough to dig.
11. 11. Back to the Mishnah's first clause: in a town of mostly idolaters the child is treated as an idolater. Since Shmuel says we still dig him out on Shabbos, the Gemara asks for what law he counts as an idolater.
12. 12. Neveilah - the carcass of an animal not slaughtered properly. A Jew may not eat it, but it may be given to an idolater.
13. 13. The Mishnah's second clause: in a town of mostly Jews the child is a Jew. That he is sustained as a Jew Rav has already said, so the Gemara asks what further law follows from it.
14. 14. Hashavas aveidah - the mitzvah to return a lost object to its owner. It is owed to a fellow Jew, not to an idolater.
15. 15. The Mishnah's third clause: where the town is half and half the child is a Jew. Returning a lost object cannot be the law meant, since that was already the case of a Jewish majority, so the Gemara asks why this clause is listed separately.
16. 16. Tam and mu'ad: an ox that has gored fewer than three times is tam, and its owner pays half the damage; one that has gored three times is mu'ad, and its owner pays in full. When an idolater's ox gores a Jew's, he pays in full either way.
17. 17. The burden of proof lies on the one who wants to take money from another. Since the child's status is in doubt, he cannot collect as a Jew without proof that he is one.
18. 18. Hadran - "We will return to you": the words said at the end of a perek. The first perek, Besulah Nises, ends here and the second, Ha'ishah Shenisarmelah, begins.
19. 19. A woman who married as a virgin has a kesubah of two hundred zuz; one who married as a widow or divorcee, a maneh, one hundred zuz. That is what the two of them are disputing.
20. 20. Ra'ayah - proof that she married as a virgin, since such customs were kept only at the weddings of virgins.
21. 21. The Gemara will discuss which dispute of Rabbi Yehoshua this refers to. What he concedes is that a person is believed when the only evidence against him is his own admission: "the mouth that forbade is the mouth that permitted."
22. 22. Kuntres - the name Tosfos use for Rashi's commentary.
23. 23. R"Ch - Rabbeinu Chananel of Kairouan, one of the earliest commentators on the Gemara.
24. 24. Shmuel holds that in money matters we do not follow the majority. His example is someone who sold an ox that turned out to gore: the buyer cannot argue that most people buy oxen for plowing.
25. 25. One who claims after the court has acted, for example after the court has ordered him to pay, that he has already paid. Some hold he is believed.
26. 26. Migo - "since": a claimant is believed because he could have made a stronger claim and been believed. But a migo does not stand against witnesses, and here the witnesses saw the virgin's wedding.