Kiddushin, Daf Ayin Gimmel, Part 5
Introduction
Today s passage discusses where a child might be found such that he would or would not be considered 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
Amemar said: [If found in] a pit of date stones, he is considered a foundling; in the swift current of the river, he is not a foundling; in the water at the side of the river, he is a foundling: in sides of the public thoroughfares, he is not a foundling; in a public thoroughfare, he is a foundling.
Amemar lists places where the child would be found and rules whether a child found there is considered a foundling and prohibited to marry Israelites. If the place is dangerous or the child will not be found, then the child is considered a foundling under the assumption that the mother just cast the child away, not caring about him/her due to its lineage. If the child is placed where he might be safe, then we can assume the lineage is good.
1) Pit of date stones. Rashi says that there were wild animals there, so the child can be assumed to have been just cast away.
2) Swift current of the river boats might find the kid there (assuming he was placed in a basket), so maybe the mother was hoping the kid would be found.
3) On the side of the river, we can assume that he was put there just to get rid of him.
4) On the side of the public thoroughfare, we can assume the mother wanted to protect him. If the child was put in the middle of the road, she would have assumed that he will be trampled.
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: But in years of famine he is not considered a foundling.
This [statement] of Rava, to what [does it refer]?
If we say, to a public thoroughfare, just because these are years of famine would [the mother] want to kill him!
But if it refers to the side passages off a public thoroughfare, why particularly famine years? [It is so] even without famine years!
Rava says that in the years of famine, a found child is not considered a foundling. The question is what rule Rava was referring to. If he was referring to the child found in the public thoroughfare, why would a mother want to essentially kill her child just because there is a famine? In other words, the assumption that the woman cast away her child because she did not have enough food clashes with where she cast him. And if he was found on the sides of the public thoroughfare, then such a child is never considered a foundling, even if there is no famine. .
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 שנאסף מן השוק אביו ואמו נאמנים עליו
Rather when Rava s [statement] was stated, it was in reference to what Rav Yehudah said in the name of R. Abba in the name of R. Yehudah b. Zavdi in the name of Rav: As long as he [the child] was still in the marketplace, his father and mother are believed concerning him; but if he has been gathered in from the street, they are not believed concerning him.
What is the reason? Rava said: Because the name of a foundling has already gone out about him.
And Rava also said: But in famine years, even if he has been gathered in from the street: his father and mother are believed concerning him.
The Talmud now finds a new context for Rava s statement. Rav said that while the foundling is still out in the marketplace (or any public area), the parents can still come and testify that he is theirs. Such a child is not yet known as a foundling. However, once he is taken in by someone else, he is known as a foundling. However, Rava adds, that if these were years of famine, we can assume that his biological parents cast him out due to their circumstances and therefore he is not considered a foundling, even after he has been gathered in.