60b----------------------------------------60b

1)DOES NISUCH APPLY WITH OTHER PARTS OF THE BODY? [Yayin Nesech :body]

(a)Gemara

1.56b (A learned six-year old): One may stomp grapes with a Nochri if his hands are tied so he cannot be Menasech the wine.

2.Question: The Nochri will be Menasech with his foot!

3.Answer: That is not the normal way to be Menasech. It does not forbid benefit from the wine.

4.A case occurred in Neharde'a, in which a Nochri and a Yisrael stomped grapes together. Shmuel withheld ruling for three festivals.

5.Suggestion: He wanted to see if there was another Tana who forbids benefit from it, like R. Noson. (If so, he would forbid benefit from it.)

i.(Beraisa): If a Nochri measured (the depth of) wine by sticking in his hand or foot, one may sell the wine;

ii.R. Noson says, if he stuck his hand in, one may not benefit from it. If he used his foot, one may sell it.

6.Rejection: R. Noson forbids benefit only when he used his hand, but not when he used his foot! Rather, he wanted to see if there was another Tana who permits drinking it, like R. Shimon (60b. If so, he would permit drinking it.)

7.57b: A case occurred in which Reuven said 'I do not have wine', and a Nochri found that he had. The Nochri inserted his hand, shook it and said 'this is not wine?!' Reuven took it away and poured it into a barrel (with more wine). Rava permitted selling all the wine to Nochrim.

8.58a Question (Abaye - Beraisa): Once, an Agardamin (a Nochri appointed over measures) pierced a barrel, inserted a straw and sucked the wine up to his mouth, or tasted wine in a cup and returned it to the barrel. Chachamim forbade it (i.e. benefit from it).

9.Answer (Rava): No, they forbade only drinking it.

10.Rejection (Abaye): If so, it should say 'it must be sold', like the Seifa!

11.Rava is refuted.

12.60b (Mishnah): The following cases occurred, and Chachamim permitted selling the wine. A Nochri fell into a pit of wine and came up, or inserted a rod to measure the wine, or removed the foam on top of the wine.

13.R. Shimon says, it is permitted (to drink the wine).

14.(Rav Chisda): The Halachah follows R. Shimon.

15.The Halachah does not follow R. Shimon.

(b)Rishonim

1.Rambam (Hilchos Ma'achalos Asuros 12:1): A Nochri forbids wine if he touched the wine itself with his hand or other limbs normally used to be Menasech and shake.

2.Rosh (4:5): Even R. Noson forbids Hana'ah only when he measured with his hand. He permits Hana'ah if he measured or stomped with his foot.

3.Rosh (8): The case of the Agardamin was an inferior Shichshuch (shaking). It is more severe than measuring, in which he intended to benefit the owner of the wine. An Agardamin normally is Menasech what he tastes. This does not harm the owner. The Ri says that Rava permitted to sell the shaken wine because it became mixed with the barrel and was Batel in it. This is unlike Stam wine of Nochrim, which R. Shimon ben Gamliel forbids taking money for it (even if it was mixed with permitted wine - 74a). It is more stringent; it is not Batel in a mixture. Chachamim who disagree with R. Shimon equate it to Stam wine of Nochrim. Rava was refuted from the case of the Agardamin. One drop forbade the entire barrel. This is totally unlike the case of measuring by hand. Rava held that the Isur is Batel because it is a light Isur.

4.Rosh (ibid): In the Yerushalmi, Amora'im argue about whether a Nochri makes Yayin Nesech through his mouth. One says that he does not, and needed to explain that the Agardamin himself returned the wine in his cup to the barrel. A Tosefta connotes that he makes Yayin Nesech with his mouth. People conduct like this.

5.Rosh (18): If a Nochri stomped with his feet, one may benefit from it, since he was distracted stomping. If he intended to touch with his feet, it is Asur b'Hana'ah.

6.Ran (27a DH Ika): Some say that Chachamim permit Hana'ah when a Nochri measured it because he did not do anything extra. We forbid when he touched unnecessarily. We are stringent about an Agardamin, even though he tastes to know the price, for what he drinks is his and he is normally Menasech. I disagree. If so, this was no question against Rava, who discussed a Nochri without touched needlessly! Rather, a Nochri who touches without intent does not forbid Hana'ah when he does so for the sake of Yisrael, e.g. measuring, or without any need, e.g. removing the foam. Perhaps removing the foam is for the sake of Yisrael. When he raised the wine through a straw, we forbid because it was for himself. There is no contradiction between the Beraisa of measuring and the case of the Agardamin. The Ra'avad agrees. The Rif omitted the Beraisa of measuring, for he holds that it argues. Some Tosafists explain that there is a three-way argument. Chachamim (of R. Noson) permit Hana'ah even if he measured with his hand, since he did not intend for Nisuch. R. Noson forbids Hana'ah if he used his hand, and permits when he used his foot. The Tana of Agardamin forbids Hana'ah even if he used his mouth. Rava holds like Chachamim of R. Noson. He was refuted, for the ruling of the Beraisa of Agardamin was followed in practice, so we follow it. Rava should have been concerned and not permit Hana'ah. If any intentional bodily contact forbids Hana'ah, even without intent for Nisuch, why do we permit when he removed the foam? Since it is not normal to be Menasech foam, it is considered like touching through something else. One who fell into the pit did not intend to touch, so one may benefit from it. I say that we cannot learn Nisuch of the foot from Agardamin, or to say that the Tana'im argue, for if so Rava was not refuted. Even if we favor what was followed in practice, the Gemara should have said that Tana'im argue like the Amora'im do.

i.Gra (25): The Beis Yosef says that the Rif omitted the laws of a Nochri stomping or measuring because he holds like Chachamim of R. Noson, who equate the hand to the foot; we permit Hana'ah because he is distracted with his work (and is not Menasech). The Rif rules unlike Chachamim regarding this, rather like the Tana (60b) who permits only through a rod, like the Mechaber says below (Sa'if 19). The Rosh rules that Nisuch with the foot is Nisuch, but one who stomps is distracted with his work. The Gemara supports this, for it compares stomping to measuring and to R. Shimon's law. The Rema brings the Rashba's opinion, that Nisuch with the foot is not Nisuch, even with intent. Tosfos, the Rashba and Ran explain that the question was whether one may profit from Isur Hana'ah, i.e. the Nochri's winepress. The Rosh's opinion is primary, for the Gemara asked 'he is Menasech!', for it held like R. Noson, who forbids with the hand even though he is distracted with his work.

(c)Poskim

1.Shulchan Aruch (YD 124:11): A Nochri forbids Hana'ah from wine that he touched if he touched with his hand or foot...

2.Rema: Some say that if he touched with his foot he does not forbid Hana'ah, for this is not the way of Nisuch.

i.Shach (53 and 123:42): The Mechaber forbids stomping with a Nochri. B'Di'eved, one may benefit from the wine. Touching with the feet is considered only Ko'ach. It does not forbid Hana'ah. Below (Sa'if 19), the Rema permits Hana'ah because the Nochri is engaged in his work (and is not Menasech). This is to explain why even the opinion that forbids Hana'ah from Nisuch with the foot, permits Hana'ah when he stomps.

3.Shulchan Aruch (ibid): (A Nochri forbids... if he touched...) or with something else (Rema - in his hand) and he stirred, even with his mouth, e.g. he drank from it or sucked from a straw in the barrel and raised the wine to his mouth. This forbids benefit from all the wine.

i.Beis Yosef (DH u'Mah she'Chosav Afilu): The Ran says that when he drinks through the straw, all the wine is forbidden because it is a basis for the top wine, so it is as if he touches all of it.

ii.Taz (7): One may not sell all the wine except for the Yayin Nesech, for all the bottom wine is a basis for the top wine; it is as if he touched everything.

See also:

DO NOCHRI CHILDREN OR SLAVES FORBID WINE? (Avodah Zarah 57)

A NOCHRI WHO DID NOT INTEND FOR NISUCH (Avodah Zarah 58)

OTHER D.A.F. RESOURCES ON THIS DAF