Kiddushin 73

חד לכהנים וחד ללוים וחד לישראלים וחד למישרי ממזר בשתוקי וחד למישרי שתוקי בישראל קהל גרים לא איקרי קהל ורבי יהודה כהנים ולוים מחד קהל נפקי אייתר ליה לקהל גרים

One is referring to priests, to teach that people with flawed lineage may not enter their congregation; and one is referring to Levites; and one to Israelites; and one serves to permit a mamzer to marry a shetuki, since a mamzer is prohibited from entering only the congregation of God, but he may marry someone who is not definitely a member of the congregation, e.g., a shetuki; and one serves to permit a shetuki to marry an Israelite, as only one who is a definite mamzer may not marry an Israelite. As for the congregation of converts, it is not called a congregation at all, and they may marry those prohibited from entering the congregation of Israel. And Rabbi Yehuda holds that priests and Levites are derived from one instance of the word “congregation,” since they are from the same tribe, that of Levi. Consequently, one instance of the word “congregation” remains for him to interpret. He interprets it as referring to the congregation of converts, and deems it prohibited for a mamzer to enter that congregation as well.

ואיבעית אימא הכי נמי תרי קהלי נינהו ממזר בשתוקי ושתוקי בישראל מחד קהל נפקא לא יבא ממזר בקהל ה׳

And if you wish, say: So too, Rabbi Yehuda agrees with Rabbi Yosei that Levites and priests are two congregations, since there are special halakhot of marriage that apply only to priests. Rather, Rabbi Yehuda holds that the permissibility of the marriage of a mamzer with a shetuki and a shetuki with an Israelite is derived from one instance of the word “congregation,” from the verse: “A mamzer shall not enter into the congregation of the Lord” (Deuteronomy 23:3).

ממזר ודאי הוא דלא יבא הא ממזר ספק יבא בקהל ודאי הוא דלא יבא הא בקהל ספק יבא

This is accomplished by inferring the following: It is one who is a definite mamzer who may not enter, but one who is a mamzer as a result of an uncertainty, e.g., a shetuki, may enter. And similarly, it is into the congregation of those with definite unflawed lineage that a mamzer may not enter, but into a congregation of those with uncertain lineage, e.g., a shetuki, he may enter. This verse therefore teaches that both types of marriage are permitted. In any event, Rabbi Yehuda remains with one instance of the word “congregation” to interpret, from which he derives that it is also prohibited for a convert to marry a mamzeret.

ואיבעית אימא הני נמי תרי קהלי נינהו וטעמיה דרבי יהודה מהכא הקהל חקה אחת לכם ולגר הגר ולרבי יוסי חקה אחת הפסיק הענין

And if you wish, say: These too, one who is a definite mamzer and one who is a mamzer as the result of an uncertainty, are two congregations, each requiring its own verse, and the reason of Rabbi Yehuda is from here: “As for the congregation, there shall be one statute both for you, and for the stranger that sojourns with you” (Numbers 15:15), which indicates that converts are considered like Israelites with regard to their being included in the category of “congregation.” And according to Rabbi Yosei, who holds that a convert may marry a mamzeret, the phrase “one statute” interrupts the matter, and converts are not considered part of the congregation of God.

אחד גר ואחד עבד משוחרר וחלל מותרין בכהנת מסייעא ליה לרב דאמר רב יהודה אמר רב לא הוזהרו כשירות להנשא לפסולים

§ The Gemara comments: The statement of the Tosefta that a convert, and an emancipated slave, and a ḥalal are all permitted to marry the daughter of a priest supports the opinion of Rav, as Rav Yehuda says that Rav says: Women of unflawed lineage who are daughters of priests were not prohibited from marrying those disqualified from the priesthood due to flawed lineage [ḥalalim], since that prohibition applies only to male priests.

דרש רבי זירא במחוזא גר מותר בממזרת רגמוהו כולי עלמא באתרוגייהו אמר רבא מי איכא דדריש מילתא כי האי בדוכתא דשכיחי גיורי דרש רבא במחוזא גר מותר בכהנת טענוהו בשיראי הדר דרש להו גר מותר בממזרת אמרו ליה אפסידתא לקמייתא אמר להו דטבא לכו עבדי לכו אי בעי מהכא נסיב ואי בעי מהכא נסיב

Rabbi Zeira taught in Meḥoza: It is permitted for a convert to marry a mamzeret. Everyone stoned him with their etrogim, since the many converts present were insulted by his statement, which they understood to mean that converts are not members of God’s congregation. Rava said: Is there a person who teaches such a matter in a place where there are commonly converts? He should have been more circumspect. Rava himself taught this in Meḥoza to ameliorate the situation: It is permitted for a convert to marry the daughter of a priest. They carried him on silk [beshira’ei] for elevating the honor of converts. He later taught them: It is permitted for a convert to marry a mamzeret. They said to him: You have forfeited the honor of your first sermon. Rava said to them: I have done for you what is good for you. If a convert wishes, he may marry from here, i.e., from those of pure lineage, and if he wishes, he may marry from here, i.e., a mamzeret.

והילכתא גר מותר בכהנת ומותר בממזרת מותר בכהנת לא הוזהרו כשירות להנשא לפסולים ומותר בממזרת כרבי יוסי

The Gemara concludes: And the halakha is: It is permitted for a convert to marry the daughter of a priest, and it is permitted for him to marry a mamzeret. It is permitted for a convert to marry the daughter of a priest, since women of unflawed lineage were not prohibited from marrying those disqualified for the priesthood. And it is permitted for him to marry a mamzeret, in accordance with the opinion of Rabbi Yosei, who holds that the congregation of converts is not called a congregation.

אלו הן שתוקי כל שמכיר אמר רבא דבר תורה שתוקי כשר מאי טעמא רוב כשרים אצלה ומיעוט פסולין אצלה

§ The mishna teaches: And these are the last two categories: A shetuki is any person who knows the identity of his mother but does not know the identity of his father. Rava says: By Torah law, a shetuki is fit to enter the congregation. What is the reason for this? Most are fit with regard to her, i.e., most men are fit to engage in intercourse with an unmarried woman, and only a minority are unfit with regard to engaging in intercourse with her. There are few men who are related to a woman in a way that would render the offspring mamzerim.

ואי אזלי אינהו לגבה כל דפריש מרובא פריש מאי אמרת דילמא אזלה איהי לגבייהו הוה ליה קבוע וכל קבוע כמחצה על מחצה דמי

Rava analyzes two possibilities: And if they came to her, i.e., if the father came to the mother’s location when the child was conceived, the following principle with regard to an uncertain prohibition takes effect: Anything that separates from its fixed location is presumed to have separated from the majority of items like it in that location. If the father separated from the population at large and came to the mother, one can assume that he was from the majority, who are of unflawed lineage. What might you say, that perhaps she went to them, and the child was conceived in the place where the father was? In such a case, it is an uncertain prohibition located in its fixed place, and the halakhic principle is: Anything fixed is considered as though it were half and half, i.e., fifty percent, and it remains a case of uncertainty, and it should be prohibited for the shetuki to marry a Jew with unflawed lineage.

והתורה אמרה לא יבא ממזר ממזר ודאי הוא דלא יבא הא ממזר ספק יבא בקהל ודאי הוא דלא יבא הא בקהל ספק יבא

And in any case, this does not suffice to prevent her shetuki child from marrying a Jew with unflawed lineage, since the Torah states: “A mamzer shall not enter into the congregation of the Lord” (Deuteronomy 23:3), which indicates: It is a definite mamzer who may not enter, but one who is a mamzer as a result of an uncertainty may enter. Similarly, it is into a congregation of those with definite unflawed lineage that he may not enter, but into a congregation of those with uncertain lineage he may enter. Therefore, even if it is uncertain if one is a mamzer, by Torah law he may marry a Jew with unflawed lineage.

ומה טעם אמרו שתוקי פסול גזירה שמא ישא אחותו מאביו אלא מעתה שתוקי שתוקית לא ישא שמא ישא אחותו מאביו

And for what reason did the Sages nevertheless say that a shetuki is of flawed lineage? Due to a rabbinic decree, lest he marry his sister from his father, since the identity of his father is unknown. The Gemara asks: If that is so, it should not be permitted for a shetuki to marry even a female shetuki, lest he marry his sister from his father.

כל כי הני מזנו ואזלי בת שתוקית לא ישא שמא ישא אחותו מאביו אלא לא שכיחא הכי נמי לא שכיחא

The Gemara responds: And do people engage in licentiousness to such an extent that one should be concerned that all the children of unknown paternity in one city were fathered by the same man? By the same reasoning, there should also be a decree that a shetuki may not marry the daughter of a female shetuki from a proper marriage, lest he marry his sister from his father, since the man who married the female shetuki might have been his father. Rather, it must be that it is not common for a shetuki to happen to marry his sister, and therefore he may marry the daughter of a female shetuki. So too, it is not common for him to happen to marry his sister, and the Sages would not issue a decree to prevent this from occurring.

אלא מעלה עשו ביוחסין

The question therefore remains, why did they render it prohibited for a shetuki to marry a Jew with unflawed lineage? The Gemara answers that it is not prohibited for a shetuki to marry a Jew with unflawed lineage due to any halakhic concern. Rather, the Sages established a higher standard with regard to lineage, in that they rendered it prohibited for people from unknown backgrounds to marry those with unflawed lineage.

ואמר רבא דבר תורה אסופי כשר מאי טעמא אשת איש בבעלה תולה מאי איכא מיעוט ארוסות ומיעוט שהלך בעליהם למדינת הים

And Rava says a similar statement: By Torah law, a foundling, a child found in the marketplace whose parents are unknown, is fit, and there is no concern that the child is a mamzer. What is the reason for this? A married woman who becomes pregnant through extramarital intercourse, which results in the child being a mamzer, ascribes the child to her husband. Since everyone assumes that her husband is the father, she has no reason to abandon the child in the marketplace. What case is there where a mother would want to abandon her mamzer child? There is the minority of situations involving betrothed women who committed adultery but cannot claim that her betrothed is the father, as they had not been living together. And there is the minority of women whose husbands have gone overseas and could not have fathered the children.

כיון דאיכא פנויה ואיכא נמי דמחמת רעבון הוה פלגא ופלגא והתורה אמרה לא יבא ממזר בקהל ה׳ ממזר ודאי הוא דלא יבא הא ממזר ספק יבא בקהל ודאי הוא דלא יבא הא בקהל ספק יבא

Since there are many other cases of unmarried women who do abandon their children although those children have unflawed lineage, and there are also children with unflawed lineage who are abandoned by their parents due to hunger, the concern that the child is a mamzer is no more than half and half, i.e., fifty percent. And the Torah states: “A mamzer shall not enter into the congregation of the Lord” (Deuteronomy 23:3), which indicates: It is one who is a definite mamzer who may not enter, but one who is a mamzer as a result of an uncertainty may enter. Similarly, it is into a congregation of those with definite unflawed lineage that he may not enter, but into a congregation of those with uncertain lineage he may enter. This child is a mamzer as the result of an uncertainty, and by Torah law may marry a Jew with unflawed lineage.

ומה טעם אמרו אסופי פסול שמא ישא אחותו מאביו אלא מעתה אסופי אסופית לא ישא שמא ישא אחותו בין מאביו בין מאמו כל הני שדי ואזלי בת אסופי לא ישא שמא ישא אחותו אלא לא שכיח הכי נמי לא שכיח

And for what reason did the Sages say that a foundling is unfit? Lest he marry his sister from his father. The Gemara asks: If that is so, it should not be permitted for a foundling to marry even a female foundling, lest he marry his sister from either his father or his mother. The Gemara rejects this: Are they continually throwing away all these children? Is it likely that the same parents abandoned both a son and a daughter? If you accept that suggestion, it should not be permitted for him to marry the daughter of a foundling, lest he marry his sister, as perhaps the father of the one he wishes to marry is his father as well. Rather, it must be that it is not common for a foundling to happen to marry his sister, and therefore he may marry the daughter of a foundling. So too, it is not common for him to happen to marry his sister, and the Sages would not make a decree to prevent this from occurring.

אלא מעלה עשו ביוחסים

The question therefore remains: Why did they prohibit a foundling from marrying a Jew with unflawed lineage? The Gemara answers that it is prohibited for a foundling to marry a Jew with unflawed lineage not due to any halakhic concern. Rather, the Sages established a higher standard with regard to lineage, in that they rendered it prohibited for people from unknown backgrounds to marry those with unflawed lineage.

אמר רבא בר רב הונא מצאו מהול

§ Rava bar Rav Huna says: If an abandoned boy was found circumcised,

אין בו משום אסופי משלטי הדמיה אין בו משום אסופי שייף משחא ומלא כוחלא רמי חומרי תלי פיתקא ותלי קמיעא אין בו משום אסופי

he is not subject to the halakhot of a foundling. If the baby’s lineage were unfit, his parents would not have gone to the trouble of circumcising him. Likewise, if his limbs are adjusted, indicating that he was cared for after birth, he is not subject to the halakhot of a foundling. Similarly, if he was anointed with oil, or if his eyes were smeared with eye salve, or if he was adorned with rings, or if a note [pitka] was hanging on him, or if an amulet was hanging on him, he is not subject to the halakhot of a foundling.

תלי בדיקלי אי מטיא ליה חיה יש בו משום אסופי אם לאו אין בו משום אסופי

Concerning a child found hanging from a palm tree, if he was in such a place that an animal could reach him, he is subject to the halakhot of a foundling. If not, if he was placed on a palm tree in a way that he could not be reached by an animal, he is not subject to the halakhot of a foundling, since he was cared for enough to be placed in a safe location.

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

Similarly, if the child was placed in a thicket near a town, where people are not commonly found, he is subject to the halakhot of a foundling. But if not, he is not subject to the halakhot of a foundling. If the child was discovered in a synagogue near a town, and people are commonly found there, he is not subject to the halakhot of a foundling, since the parents wanted to give him to others. But if not, if the synagogue was not near a town or if it was not frequented by people, he is subject to the halakhot of a foundling.

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 said: With regard to this cistern into which date pits are placed [peira desuflei] as animal fodder, if a child is found there, he is subject to the halakhot of a foundling. If he was found in the middle of a fast-flowing river with boats passing by, he is not subject to the halakhot of a foundling. If he was placed at the side of the river, he is subject to the halakhot of a foundling. If he was found at the sides of a public domain, which is not frequented by many people, he is not subject to the halakhot of a foundling. But if the child was discovered in the public domain itself, where he might easily be trampled, he is subject to the halakhot of a foundling.

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

Rava said: And in famine years, he is not subject to the halakhot of a foundling. The Gemara asks: With regard to this statement of Rava, to which specific case is it referring? If we say it is referring to the case where the child was left in the public domain because it is a famine year, would a mother kill him by placing him in a place where he is likely to be trampled? Rather, if Rava’s statement is referring to the case where the child was found at the sides of a public domain, why specifically mention famine years? Even when it is not famine years, the child was placed in a safe location where he was likely to be found.

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

Rather, it must be that when Rava’s halakha was stated, it was stated with regard to that which Rav Yehuda says that Rabbi Abba says that Rabbi Yehuda bar Zavdi says that Rav says: As long as the abandoned child is still in the marketplace, his father and mother are deemed credible with regard to him when they later claim the child as theirs. But once the child has been collected from the marketplace, they are no longer deemed credible with regard to him.

מאי טעמא אמר רבא הואיל ויצא עליו שם אסופי ואמר רבא ובשני רעבון אף על פי שנאסף מן השוק אביו ואמו נאמנים עליו

The Gemara asks: What is the reason for this? Rava said: Since the child has already been publicized with the name of being of flawed lineage as a foundling, they cannot change the status of the child. And it is with regard to this halakha that Rava says: And in famine years, although the child has been collected from the marketplace, his father and mother are deemed credible with regard to him, as it is common even for parents of unflawed lineage to abandon their children in famine years, and it is likely that they are speaking the truth.

אמר רב חסדא שלשה נאמנים לאלתר אלו הן אסופי חיה ופוטרת חברותיה

§ Rav Ḥisda says: There are three cases where people are deemed credible if they immediately offer testimony with regard to a matter about which they are not ordinarily deemed credible to testify. These are they: A foundling, a midwife, and one who exempts her friends from uncertain impurity.

אסופי הא דאמרן

How so? The case of a foundling is that which we said, that his parents can testify with regard to his lineage before he is collected from the marketplace.

חיה דתניא חיה נאמנת לומר זה יצא ראשון וזה יצא שני במה דברים אמורים שלא יצתה וחזרה אבל יצתה וחזרה אינה נאמנת רבי אליעזר אומר הוחזקה על עומדה נאמנת ואם לאו אינה נאמנת מאי בינייהו איכא בינייהו דאהדר אפה

The case of a midwife is as it is taught in a baraita: A midwife is deemed credible to say that this child emerged first from the womb and that child emerged second from the womb. Her testimony is relied upon to determine which of them is the firstborn. In what case is this statement said? When she has not left the birthing room and returned. But if she left the birthing room and returned, she is not deemed credible, since the babies might have been exchanged in the meantime. Rabbi Eliezer says: If she has stood in her place, she is deemed credible. But if not, she is not deemed credible. The Gemara asks: What is the difference between them? The Gemara answers: The difference between them is in a case when the midwife turned her head aside after the birth. According to Rabbi Eliezer she is no longer deemed credible, despite having remained in the room.

פוטרת חברותיה מאי היא דתנן שלש נשים שהיו ישנות במטה אחת ונמצא דם תחת אחת מהן כולן טמאות בדקה אחת מהן ונמצאת טמאה היא טמאה וכולן טהורות אמר רב חסדא שבדקה עצמה כשיעור ווסת

What is the case of one who exempts her friends? As we learned in a mishna (Nidda 60b): If there were three women who were sleeping in one bed, and blood was found beneath one of them, they are all deemed impure as menstruating women, as it is not known from which of them the blood came. If one of them examined herself and was found to be impure, i.e., she saw that she was menstruating, she is impure and all the rest are pure. With regard to this, Rav Ḥisda said: This applies provided that she examined herself within the period of time needed for the onset of menstruation, i.e., immediately after the discovery of the blood. But if she did so even a short while later, her discovery is not accepted as proof with regard to the source of the blood.

תנו רבנן נאמנת חיה לומר זה כהן וזה לוי זה נתין וזה ממזר במה דברים אמורים שלא קרא עליה שם ערער אבל קרא עליה ערער אינה נאמנת

The Sages taught: If several women gave birth at the same time, the midwife is deemed credible to say: This baby is a priest and that baby is a Levite; this baby is a Gibeonite and that baby is a mamzer. In other words, she is deemed credible to say which baby was born to which mother. In what case is this statement said? When no objection was registered about it. But if an objection was registered about it, she is not deemed credible.

ערער דמאי אילימא ערער חד והאמר רבי יוחנן אין ערער פחות משנים אלא ערער תרי

The Gemara clarifies: An objection of what type? If we say it is an objection of one witness claiming that her testimony is not accurate, but doesn’t Rabbi Yoḥanan say: There is no objection with less than two witnesses? Rather, the baraita must refer to the objection of two witnesses, but she is deemed credible when contradicted by a single witness.

ואיבעית אימא לעולם אימא לך ערער חד וכי אמר רבי יוחנן אין ערער פחות משנים הני מילי היכא דאיתא חזקה דכשרות אבל היכא דליכא חזקה דכשרות חד נמי מהימן

And if you wish, say: Actually, I could say to you that she is not deemed credible even when contradicted by the objection of one witness, and when Rabbi Yoḥanan said that there is no objection with less than two witnesses, that statement applies only in a case where there is a presumption of validity, which can be countered only by the objection of two witnesses. But in a case where there is no presumption of validity, such as in this case, when the baby was just born, one witness is also deemed credible to object.

נאמן בעל מקח לומר לזה מכרתי ולזה אין מכרתי במה דברים אמורים בזמן שמקחו בידו אבל אין מקחו בידו אינו נאמן

Similarly, if the owner of an item being purchased is confronted by two people, each claiming to have purchased the item, he is deemed credible to say: I sold to this one, and I did not sell to that one. In what case is this statement said? When the item being purchased is still in the seller’s possession. But if the item being purchased is not in his possession, he is not deemed credible any more than a single witness is.