Avodah Zarah, Chapter Four, Mishnah Eleven
This mishnah and the one that follows discuss wine owned by a non-Jew but produced by a Jew with the intent that the non-Jew will be able to sell it to the Jews, without it having the status of yen nesekh.
1) If [an Jew] prepares a non-Jew’s wine in a state of ritual purity and leaves it in [the non-Jews] domain, in a house which is open to the public domain, should it be in a city where non-Jews and Jews reside, it is permitted.
a) But should it be in a city where only non-Jews reside it is prohibited unless [an Jew] sits and guard.
b) There is no need for the guard to sit and watch [the whole time]; even if he keeps going out and coming in it is permitted.
c) Rabbi Shimon ben Eleazar says: it is all one with the domain of a non-Jew.
If a Jew were to prepare wine belonging to a non-Jew and then leave it on the non-Jews property we need to know whether or not the non-Jew had contact with the wine and thereby made it into yen nesekh. If the house was open to the public domain and there were both Jews and non-Jews living in the city, the wine is permitted. The reason is that the non-Jew will fear that if he touches the wine a Jew passing by might see him and tell the other Jews, in which case they wont buy the wine from him. This non-Jew from the outset wanted to sell to non-Jews therefore he wont perform any act that might cause him to lose his ability to sell the wine. However, if there are only non-Jews in the city, the non-Jew does not fear that they will see him and report him to the Jews. Since in this case he is not afraid to touch the wine, the wine must be guarded to make sure that it doesnt become yen nesekh. If it is not guarded the law is strict and it is forbidden.
This guardian need not sit and guard the wine 24 hours a day. It is sufficient for him to come in and out occasionally. As long as the non-Jew does not know when he will come in and out, the non-Jew will be too afraid to touch the wine for fear that he will be caught. This is similar to the way that Jewish kashruth supervisors work today. They are not present in restaurants at all times. It is enough for the restaurant owner to know that they might show up at any time for him to be afraid to break the rules of kashruth.
The words of Rabbi Shimon ben Elazar are not easy to explain. The Talmud explains that according to the previous opinion in the mishnah, if the Jew were to leave the wine on a different non-Jews property he need not place a guard. Since the wine is not his, this non-Jew will not touch it. Rabbi Shimon ben Elazar disagrees. He holds that all of non-Jewish property is the same and therefore it doesnt matter where the wine was left; it is forbidden unless it was guarded.
Questions for Further Thought:
· What would the ruling be if the house was not open to the public domain?