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 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 apparently depends on another 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. He maintains that the Rabanan instituted the act of Meshichah as 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 Meshichah had been done. Does this imply that the Gemara here sides 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 in Bava Metzia derives that Meshichah is a Kinyan d'Oraisa. This is also the opinion of the RAMBAN and the RAN.

Does this imply that the Gemara here maintains that the Halachah follows the view of Reish Lakish (which is in contrast to the ruling of most Poskim)? The Ran says that this is not an accurate inference. The Gemara in many places asks a question according to an opinion which is not the Halachic opinion.

(b) TOSFOS DH v'Ha and the RITVA assert 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 based on 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). According to this principle -- that Torah law is based on the monetary conditions of the Rabanan, the question of the Gemara here applies also according to Rebbi Yochanan. (Y. MONTROSE)

63b----------------------------------------63b

2) HALACHAH: GUARDING AND POURING THE WINE OF NOCHRIM

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. Is the Jew prohibited from working with the wine, since he obviously wants the Yayin Nesech to exist until the end of his job, or is he permitted to work with the wine, since he is working specifically to destroy the wine and lessen the amount of material used to serve Avodah Zarah? 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 involving a Jew who accepts a job that entails working with Yayin Nesech. What is the Halachah in cases in which a Nochri asks a Jew to do a favor for him with the wine, such as to guard it or to pour him a drink? Is it permitted for the Jew to do such work if he will not be compensated for it?

(a) The RAN quotes the RAMBAN who rules that such jobs are forbidden. At the moment 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 loss. 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 intention of the Tosefta (8:4) that states that if a Jew 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, even though it is forbidden to do such work he may benefit from the money he earns. The Ramban notes that although 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 Stam Yayin for a Nochri.

(b) However, the practical application of the ruling of the Ramban depends on the general argument about whether or not Stam Yayin is forbidden from benefit in our times, now that Nochrim generally do not worship Avodah Zarah the way they used to do so 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 forbidden. The SHULCHAN ARUCH (YD 123 and 133) seems to follow this opinion when he does not differentiate between our times and the times of the Gemara. RAV OVADYAH YOSEF (YABI'A OMER, vol. 4, YD 6:4) rules that Sefardim who follow the rulings of the Shulchan Aruch must be stringent in this matter even today. (It is worth noting that Rav Ovadyah Yosef states that wine of Yishmaelim is not forbidden from benefit.)

The Darchei Moshe quotes the RASHBAM in the name of the GE'ONIM, TOSFOS (57b, DH la'Afukei), and the AGUR who rule that Stam Yayin is no longer forbidden from benefit today. The Darchei Moshe rules in accordance with this view in the REMA (YD 123:1, 133:1). However, he writes that this leniency should be relied upon only in a situation where a loss would be incurred otherwise. The SHACH (133:4) similarly points out that this leniency 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 concludes 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)

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