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Avodah Zarah, Daf Ayin Aleph, Part 3
Reading for Tuesday, October 23
Avodah Zarah 71-3
Today’s sugya is about the laws of acquisition. For Jews, acquisition (according to Talmudic law) is effected generally through drawing the object towards oneself—meshikhah. In other words, if you promise to pay me ten dollars for my book, you still do not own the book. You acquire only when you take it into your possession. Furthermore, if you take it into your possession you must pay me for it, even if you don’t like the book (you will like both of my books, do not worry).
Our sugya talks about whether non-Jews acquire in the same way. I should note that there are a lot of principles related to both laws of acquisition and the laws of yayin nesekh brought up in this sugya. It is not an easy passage—the give and take is quite complicated. Good luck!
מתני׳ המוכר יינו לעובד כוכבים פסק עד שלא מדד דמיו מותרין מדד עד שלא פסק דמיו אסורין:
If [a Jew] sells his wine to a non-Jew—if he set the price before he measured it out, the purchase-money is permitted;
But if he measured it out before he set the price, the purchase-money is prohibited.
If a Jew sells his wine to a non-Jew, he must make sure that he is not receiving money for what is now yen nesekh. If he measures out the wine to the non-Jew and then sets a price, he is actually receiving payment for selling yen nesekh, since the wine becomes yen nesekh as soon as it is in the non-Jew’s possession. Therefore, he must set a price before he gives over the wine. Note that once the price is set he need not receive the money, for the debt of the non-Jew is already established.
גמ׳ אמר אמימר משיכה בעובד כוכבים קונה תדע דהני פרסאי משדרי פרדשני להדדי ולא הדרי בהו
רב אשי אמר לעולם אימא לך משיכה בעובד כוכבים אינה קונה והאי דלא הדרי בהו דרמות רוחא הוא דנקיטא להו
GEMARA. Amemar said: Meshikhah effects acquisition for non-Jews. You can know this from the practice of the Persians who send presents to one another and never retract.
Ashi said: I can always say to you that meshikhah does not effect acquisition for non-Jews, and the reason why [the Persians] do not retract is the haughtiness that they have adopted.
Both Amemar and R. Ashi agree that when Persians give gifts they do not retract. The question is why not? According to Amemar it is because according to non-Jewish law, meshikhah effects acquisition. Persians do not retract because gifts cannot be taken back. But R. Ashi says that this is simply due to their refusal to go back on their word. It is not a legal principle. They could retract if they wanted to.
אמר רב אשי מנא אמינא לה מדאמר להו רב להנהו סבויתא כי כייליתו חמרא לעובדי כוכבים שקלו זוזי מינייהו והדר כיילן להו ואי לא נקיטו בהדייהו זוזי אוזיפונהו והדר שקילו מינייהו כי היכי דתיהוי הלואה גבייהו דאי לא עבדיתו הכי כי קא הוי יין נסך ברשותייכו קא הוי וכי שקילתו דמי יין נסך קא שקילתו ואי ס”ד משיכה בעובד כוכבים קונה מדמשכה עובד כוכבים קנייה יין נסך לא הוי עד דנגע ביה
Ashi said: From what source did I say this? From that which Rav told [Jewish] wine-sellers, “When you measure wine for non-Jews, first take the money and then measure for them, and if they do not have zuzim with them, lend to them and get them back later, so that it should be a loan [of money] with them; for should you not act in this manner, when it becomes yayin nesek it will be in your possession and when you receive payment it will be for yayin nesekh.”
Now should you think that meshikhah effects acquisition for a non-Jew, then as soon as the non-Jew drew [the wine] to himself he acquired it and it did not become yayin nesekh until he touched it.
Ashi attempts to prove that meshikhah does not effect acquisition for non-Jews from instructions that Rav gave to Jewish wine-sellers. Rav essentially told the Jews to first take the money from the non-Jew, or at least make the non-Jew obligated to pay back a loan, and only then to pour the wine into a container and give it to the non-Jew. Otherwise, the wine will still belong to the Jew up until the point that the non-Jew drinks it and when the non-Jew pays the money back, they will be paying the Jew for nesekh.
However, if simple meshikhah acquired the wine, then as soon as he poured the wine into the container and gave it to them, it would be their wine, but it would not become yayin nesekth until they touch it. Thus meshikhah must not effect acquisition.
אי דקא כייל ורמי למנא דישראל ה”נ לא צריכא דקא כייל ורמי למנא דעובד כוכבים
If the wine was measured and poured [by the Jew] into the Jew’s vessel, it would indeed be so. But this measure is necessary where [the Jew] measured and poured it into the Gentile’s vessel.
Amemar admits that R. Ashi would be correct if all he is concerned about is a case where the Jew was pouring into Jewishly owned vessels. But if the Jew is pouring into a vessel owned by the non-Jew, the wine will indeed become nesekh immediately. Thus this source really has nothing to do with acquisition through meshikhah.
סוף סוף כי מטא לאוירא דמנא קנייה יין נסך לא הוי עד דמטי לארעיתיה דמנא ש”מ נצוק חבור
At all events when [the wine] enters the interior of the vessel [the non-Jew] acquired it, and it does not become yayin nesek until it reaches the bottom of the vessel.
Are we, then to conclude that the flow is considered a connecting link?
Even according to Amemar’s situation, where the wine is put into the non-Jew’s vessel, we can still say that it is acquired before it becomes nesekh, and thus Rav’s instructions are not necessary. For as soon as the wine enters the vessel, even the vessel’s airspace, it would be acquired by the non-Jew. But it would not become nesekh until it reaches the bottom. So why would this be a problem—the non-Jew would be paying for regular wine. Perhaps, the Talmud suggests, that Rav holds that liquid being poured counts as a connective. If so, then when the beginning of the flow hits the bottom, the entire stream becomes nesekh, and then the wine would become nesekh while still in the Jew’s possession. Note—the Talmud does not think that flow serves as a connective. This is why this is a difficulty.
לא אי דנקיט ליה עובד כוכבים לכלי בידיה ה”נ לא צריכא דמנח אארעא
No; if the non-Jew was holding the vessel in his hand it would indeed be so [that he acquires it before it becomes nesekh]. But it is necessary [to suppose the circumstance] where it was resting upon the ground.
Amemar further resolves the difficulty by saying that in this case the non-Jew was not holding the vessel. Therefore, he does not acquire it before it becomes nesekh by having been put in the non-Jew’s vessel.
ותיקני ליה כליו
שמעת מינה כליו של לוקח ברשות מוכר לא קנה לוקח
But let [the non-Jews] vessels acquire [the wine] for him! Learn from here that when the purchaser’s vessels are in the possession of the seller the purchaser does not acquire.
Amemar had just said that Rav referred to a case where the non-Jew’s vessels were on the ground and therefore he did not acquire the wine until he picked it up. By this point it was already nesekh. This seems to imply that in general if a purchaser’s vessels are in the domain of the seller, the vessels do not effect acquisition for the purchaser.
לא לעולם אימא לך קנה לוקח והכא במאי עסקינן כגון דאיכא עכבת יין אפומיה דכוזנתא דקמא קמא אינסיך ליה
No; I can always say to you that the purchaser does acquire them; but what are we dealing with here? For instance when there is some wine held back on the mouth of the smaller vessel for each bit of wine will become nesekh.
Again, we reject the previous conclusion. The purchaser does acquire the wine as soon as it is put into his jug. And still the wine becomes nesekh before it hits the bottom because there might be a little bit of wine belonging to the non-Jew left over in the vessel into which the Jew pours his wine. As soon as the Jew’s wine hits this wine, it becomes nesekh, even before it is acquired by the non-Jew.
וכמאן דלא כרשב”ג דאי רשב”ג האמר ימכר כולו לעובדי כוכבים חוץ מדמי יין נסך שבו
According to whom does this follow? It does not accord with R. Shimon b. Gamaliel; for if it followed him, behold he has said: All of it may be sold to a non-Jew with the exception of the value of the yayin nesek which is in it!
Rav’s instruction seemingly do not accord with Rabban Shimon b. Gamaliel. Rabban Shimon b. Gamaliel says that when yayin nesekh (in this case, the drop in the vessel) becomes mixed up with non-nesekh wine (the Jew’s wine), the entire mixture can be sold to a non-Jew minus the value of the nesekh. So why should he not be able to receive payment for his wine when it became nesekh in the possession of a non-Jew?
מידי הוא טעמא אלא לרב האמר רב הלכה כרשב”ג חבית בחבית אבל לא יין ביין
This was only an argument against Rav; but did not Rav himself says that the halakhah agrees with R. Shimon b. Gamaliel only when a cask [of yayin nesek] became mixed with other casks but not when wine [which is nesekh] became mixed with other wine.
The Talmud resolves this by pointing out that Rav says that the halakhah follows R. Shimon b. Gamaliel only when casks of permitted and forbidden wine get mixed up. But if yayin nesekh becomes mixed with other wine all of the wine becomes prohibited and may not even be sold to non-Jews.