Machshirin, Chapter 2, Mishnah 7. The closing mishnayos of this chapter deal with a recurring situation: a city populated by both Jews and non-Jews, and something is found there whose origin nobody knows. How do we decide its status? The Mishnah's tool is majority, and it applies that tool here to the most sensitive case of all: a living child.
"Matza bo tinok mushlach": one found in such a city an infant who had been abandoned, with no clue as to who left him there or to what family he belongs.
When the city is mostly non-Jewish
"Im rov nochrim, nochri." If most of the city's inhabitants are non-Jews, we presume the child is a non-Jew. The Rav notes the practical consequence: there is no restriction on giving him food that is not kosher, and one may even place it in his mouth directly, since he does not carry the status of a Jew at all.
When the city is mostly Jewish
"Ve'im rov Yisroel, Yisroel." If most of the inhabitants are Jews, the child is treated as a Jew. He is therefore to be cared for like any other Jewish child: provided with food and shelter, taught Torah, and when he grows up he may marry a Jew.
The Rav highlights a striking point the Gemara adds here: if this child loses an object, we are obligated to return it to him exactly as we would to any Jew. Hashavas aveidah applies to him fully.
Why is that a novelty? Because his personal identity remains unverified. Ordinarily, when money or property is at stake and there is a doubt, we leave the item where it presently sits, since the burden of proof rests on the one trying to extract it: motzi meichaveiro alav hare'ayah. By that logic, this child should have to establish that he is a Jew before the finder must hand over his property. And there is a second principle pushing the same way: bemamon ein holchin achar harov, in monetary matters we do not decide on the strength of a majority. Nevertheless, in this case the Mishnah treats him as a Jew, and his lost property must be restored to him like that of any full-fledged member of the nation.
When the city is evenly divided
"Mechtza lemechtza Yisroel." If the population is half Jewish and half non-Jewish, the Mishnah calls him a Yisroel. That word, taken by itself, can mislead a reader, because he is not a Jew in the complete sense. For a whole range of halachos his status is one of genuine safek, and the practical results run in both directions.
- If someone murders him, the killer is not put to death, since the victim may in fact have been a non-Jew.
- If he betroths a woman, the kiddushin is a safek. She would require a get in order to remarry, even though we do not know that the marriage was valid to begin with, and she would no longer be permitted to marry a kohen.
- On the other hand, we may not feed him non-kosher food, precisely because we cannot be sure that he is not a Jew.
Where, then, does the Mishnah's ruling that he is a "Yisroel" actually take effect? In the laws of damages. When an animal gores and causes damage, a Jewish owner pays only chatzi nezek, half the loss, whereas a non-Jewish owner is charged nezek shaleim, the full loss. Regarding this child we follow the lenient reckoning: only half the damage is collected from him, and he is not assessed the full amount. For this purpose he is treated as a Jew.
The Rav adds the obvious remedy: should he wish to hold the status of a Jew for every matter, he can undergo geirus, or a geirus performed on account of the doubt, and from then on he is a Jew in every respect.
Rebbi Yehuda's measure
Rebbi Yehuda's measure
Rebbi Yehuda offers a different yardstick. In his view the census of the city is beside the point; what matters is the group from which abandoned children actually come, "rov hamashlichin," the majority of those who cast children away. So the question is not the proportion of Jews to non-Jews among the residents, but which population tends to leave a baby in the street. The Rav explains that this behavior was found chiefly among the non-Jews. It follows that a city could be predominantly Jewish, and as long as there is any non-Jewish presence at all, the foundling is assumed to be a non-Jew, because those who discard children are overwhelmingly from that group.
This is not the accepted halachah. We determine the child's identity according to the makeup of the city's population, following the Mishnah's first ruling.
The halachah does not follow Rebbi Yehuda. We decide the child's status by the majority of the city's inhabitants, as the first opinion in the Mishnah teaches.