Ketubot 11 - 17
Mystery of the Abandoned Child
An abandoned child is found in a city populated by Jews and Gentiles. What is his status? A mishna in Mesechta Machshirin is cited which rules that if Jews are the majority in that city the child is halachically considered (except in regard to marriage) a Jew. If the majority are Gentiles the child is considered a Gentile. If the population is evenly split between Jews and Gentiles the child is considered Jewish. The gemara points out that this designation of Jewishness when there is an even amount of Jews and Gentiles in the city is limited to a situation in which a damage claim is made against him in which his being Jewish would be to his advantage. Since the claim is being made to extract payment from him, the burden of proof that he is not Jewish is upon the one making the claim.
What about his religious obligations? Must he observe all of the mitzvot incumbent upon a Jew because he may be a Jew, or is he only required to observe the seven Noachide Laws commanded to all of mankind because he may not be Jewish? Although the mishna does not specifically deal with this question there is a clear indication from the ruling that only if there is a majority of Gentiles is he considered non-Jewish. The ramification of this ruling, says Rabbi Papa, is that we may feed him non-kosher food. The implication is that in a half and half situation we cannot give him such forbidden food because he must observe the dietary laws and all other mitzvot because he may indeed be a Jew.
The only problem that arises is in regard to observance of the Shabbat. While there is no problem in a non-Jew observing all other mitzvot in which he was not commanded, there is an injunction against him observing Shabbat (Mesechta Sanhedrin 58b). This person of doubtful status therefore faces a dilemma. If he performs creative labor on Shabbat he may be guilty of being a Jewish Shabbat violator. If he desists from such activity he may be guilty of being a non-Jew observing Shabbat.
This enigma is discussed by some commentaries in regard to how it was possible for the Patriarchs to observe the mitzvot of the Torah before they were commanded to their descendants. What did they do on Shabbat? Many ingenious solutions have been proposed to this puzzle which is a favorite subject of discussion in the world of Talmudists.
Rabbi Yaakov Ettlinger, in his "Responsa Binyan Zion" (126) suggests that the theoretical puzzle raised by these commentaries could have practical application in regard to the abandoned child. His own solution is based on his understanding that the ban on a non-Jew observing Shabbat relates only to refraining from the 39 categories of creative labor forbidden by the Torah to Jews alone. There are enough other forms of exertion which the abandoned child could do on Shabbat which would not be considered a violation by a Jew and which would still remove him from the category of a non-Jew observing Shabbat.
"Keitzad merakdin lifnei hakallah?" "What does one sing when dancing before the bride at a wedding?" "Kallah kemot shehi -- The bride as she is" -- say Beit Shammai. "Kallah na'ah vechasudah -- the bride is lovely and charming" -- say Beit Hillel.
What if she is lame or blind, Beit Shammai challenge Beit Hillel. Can we then say that she is lovely and charming in violation of the Torah ban on lying?
Beit Hillel's response is to compare the situation to that of how we relate to one who has purchased something. Do we speak highly of his purchase or criticize it? From this approach the Sages learned that one must always strive to get along well with other people.
What is meant by Beit Shammai's formula for bringing joy to the groom and bride? If she has a blemish does he still recommend that she be described "the bride as she is?"
Tosefot explains that in such a case Beit Shammai suggest either refraining from any description or focusing on her praiseworthy features while still avoiding the general description of Beit Hillel which smacks of untruth. Beit Hillel disdain this approach because anything short of general praise will be interpreted as an insult.
Maharsha suggests an alternative explanation of the two views.
Beit Shammai and Beit Hillel both advocate a general description of the bride, and differ only in regard to its text. Beit Shammai is in favor of singing the praise of every bride with the words "the bride as she is" which implies that no matter what shortcoming there is, she has found favor in the eyes of her groom. Beit Hillel, however, insist on being more explicit in stressing the idea that to her groom "the bride is lovely and charming."