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Avodah Zarah, 63

1) THE STATUS OF THE ACT OF "KINYAN MESHICHAH"

OPINIONS: The Gemara earlier (62b) quotes a Beraisa which teaches that if a person has relations with a Zonah and, afterwards, he pays her with a sheep, that sheep is not considered to be an "Esnan Zonah" which the Torah prohibits from being offered as a Korban. The Gemara here questions that Beraisa from a different Beraisa that states that even if he gives the sheep to her three years later, the sheep *is* considered an Esnan. Rav Chisda answers that the Beraisos are discussing different cases. The first Beraisa is discussing a case in which the man and the Zonah agreed upon the payment of a sheep, but not a specific sheep, before the act. The second Beraisa is discussing a case in which they agreed on a specific sheep. The Gemara asks that even when they agreed upon the payment of a specific sheep, it should not be considered an Esnan, because the Zonah did not acquire the animal through Kinyan Meshichah before the act!

This question of the Gemara seems to depend on a different argument discussed in Bava Metzia (47b). Rebbi Yochanan there maintains that money which changes hands in order to effect a transaction is a valid Kinyan d'Oraisa, while an acquisition made through an act of Meshichah is only a Kinyan d'Rabanan; the Rabanan instituted that the act of Meshichah is a valid Kinyan. Reish Lakish argues and says that Meshichah is a Kinyan d'Oraisa. The question of the Gemara here seems to be relevant only according to Reish Lakish, since it mentions that the animal has not been acquired, mid'Oraisa, as an Esnan, since it is lacking Meshichah, implying that it *would* be a valid Kinyan d'Oraisa if it had Meshichah. Does this imply that our Gemara is siding with the view of Reish Lakish?

(a) RASHI (DH b'Tleh) seems to understand that the Gemara is asking its question only according to Reish Lakish. This is apparent from his explanation that the Torah mentions the method of Kinyan of Meshichah only with regard to a Jew, when it states, "O Kanoh mi'Yad *Amisecha*" -- "[or when you] acquire from the hand of *your friend*" (Vayikra 25:14). This is the verse from which Reish Lakish derives in Bava Metzia (ibid.) that Meshichah is a Kinyan d'Oraisa. This is also the opinion of the RAMBAN and the RAN.

Does this mean that our Gemara maintains that the Halachah follows Reish Lakish, which is in contrast to the ruling of most Poskim? The Ran says that we cannot make such an inference from the Gemara, as there are many places in the Gemara that the Gemara asks a question according to an opinion which is not the Halachic opinion.

(b) The RITVA asserts that the Gemara's question applies even according to the view of Rebbi Yochanan. How, though, can a Kinyan which is only mid'Rabanan be able to determine a Torah law (that is, whether or not the payment is an Esnan)? The Ritva explains that any Torah prohibition related to a monetary function can be determined by the Rabanan. This is because of the principle of "Hefker Beis Din Hefker" -- the Rabanan have the power to make a person's property ownerless (Yevamos 89b). The Ritva proves this from the Gemara in Kidushin (7a) which states that if a man is Mekadesh a woman with money or with an item that the Rabanan declared to be prohibited, the Kidushin is invalid and the woman does not need a Get at all. Even though the Torah does not prohibit that money or item, since the Rabanan prohibited the money or item, it is worthless (and thus the man did not give anything of value to the woman as Kidushin). Once we understand that Torah law is based on the monetary conditions of the Rabanan, we can understand that the question of our Gemara applies also according to Rebbi Yochanan. (Y. Montrose)

63b

OPINIONS: The Mishnah (62a) states that a Jew may not hire himself out to work with Yayin Nesech. The Gemara asks whether the same law applies when a Nochri wants to hire a Jew to break his barrels of Yayin Nesech and spill them out. Do we say that since the Jew obviously wants the Yayin Nesech to exist until the end of his job, he is prohibited from working with it, or do we say that because he is working specifically to destroy the wine and lessen the amount of material used to serve Avodah Zarah, it is permitted? Rav Nachman says that the Jew certainly may accept the work to destroy the wine, "and a blessing shall come upon him." The BEIS YOSEF (YD 133) adds that the prohibition against working with Yayin Nesech and wanting it to exist applies only when the Jew is not working towards destroying it.

The Gemara addresses cases concerning a Jew accepting a job that entails working with Yayin Nesech. What, though, is the Halachah in cases in which a Nochri hires a Jew to do a favor for him with the wine, such as to guard it or to pour him a drink?

(a) The RAN quotes the RAMBAN who rules that such jobs are forbidden. At the time that the Jew guards the barrel of Yayin Nesech for the Nochri, he desires its existence. If the barrel would be lost, stolen, or harmed due to the negligence of the Jew, then the Jew would be responsible to pay for the damages. Even if the Nochri stipulated in advance that the Jew will not be monetarily responsible for the barrel, the Jew still wants the wine to continue to exist in order to have the Nochri indebted to him for performing this favor.

The Ramban adds that this is the meaning of the Tosefta (8:4) that states that if someone is hired by a Nochri to perform permitted work, and towards evening he is told to move barrels of Yayin Nesech from one place to another, then even though it is forbidden to do such work, he may benefit from the money he earns. The Ramban notes that even though the worker had already finished his workday and was merely doing a favor for his employer, the Tosefta still states that this is forbidden. Most of the Rishonim seem to agree with the Ramban (see Beis Yosef in the name of the RASHBA, ORCHOS CHAIM, and others) that this is forbidden because of the prohibition of Yayin Nesech (see, however, TOSFOS to 65a, DH Ha, who seems to interpret the Tosefta differently). The Ramban extends this prohibition not only to Yayin Nesech, but even to Stam Yayin, and concludes that a Jew may not even pour these types of wine for a Nochri.

(b) However, this ruling of the Ramban is qualified by the general argument of whether or not Stam Yayin is forbidden from benefit in our times, now that the Nochrim generally do not worship Avodah Zarah the way they used to in the past. The DARCHEI MOSHE (YD 123:2) cites many opinions regarding this matter. He cites the RAMBAM, RAMBAN, RASHBA, and RIVASH who rule that Stam Yayin is still forbidden from benefit nowadays. Accordingly, pouring a Nochri's wine for a Nochri is still forbidden. The SHULCHAN ARUCH (YD 123, 133) seems to follow this opinion, not differentiating between our times and the times of the Gemara. RAV OVADYAH YOSEF (in YABI'A OMER vol. 4, YD 6:4) rules that Sefardim who follow the rulings of the Shulchan Aruch must be stringent with regard to this even today. (It is worth noting that Rav Ovadyah Yosef states that wine of Muslims is not forbidden from benefit.)

The Darchei Moshe quotes the RASHBAM in the name of the GE'ONIM, TOSFOS (57b, DH l'Afukei), and the AGUR who say that Stam Yayin is no longer forbidden from benefit today. He rules in accordance with this view in the REMA (YD 123:1, 133:1). However, the Darchei Moshe himself says that this should only be relied upon in a place where a loss would be incurred otherwise. The SHACH (133:4) similarly points out that this is not to be relied upon l'Chatchilah.

The RADVAZ (4:22) was asked about pouring wine for Nochrim. After citing both of the opinions mentioned above, he said that one should be stringent because, obviously, a place in which Nochrim are drinking wine is an environment that is conducive to sin. This implies that in a case in which there is no concern that the Jew will be drawn to sin, such as when he is asked to guard Stam Yayin for an employer, or to pour it on an infrequent basis, one may follow the opinion of the Rema (see DARCHEI TESHUVAH 133:7). (Y. Montrose)