QUESTION: The Mishnah teaches us that a Nochri who helps a Jew transport barrels of wine from one place to another does not cause the wine to become forbidden if the wine was "b'Chezkas ha'Mishtamer" (it was assumed to have a status of being guarded). If, however, the Jew tells the Nochri that he is going away for a while, then the Tana Kama and Raban Shimon ben Gamliel argue how long of an absence causes the wine to become forbidden. The Tana Kama maintains that if the Jew left for long enough that the Nochri had time to make a hole in the barrel, take some wine, then seal up the barrel and let it dry, then the wine is forbidden. Raban Shimon ben Gamliel states that the Nochri had to have enough time to completely open the top of the barrel, make a new barrel top, and let it dry.

After the Mishnah gives a lengthy explanation of what constitutes a lack of Chezkas ha'Mishtamer, the Gemara opens with the question, "What is the case of Chezkas ha'Mishtamer?"

What is the Gemara's question? After stating that the wine is permitted if it was b'Chezkas ha'Mishtamer, the Mishnah goes on to explain what is not considered Chezkas ha'Mishtamer -- such as when the Jew told the Nochri that he was leaving for a while. Obviously, then, the case of Chezkas ha'Mishtamer is when the Jew never mentioned that he was leaving! What, then, is unclear about the definition of Chezkas ha'Mishtamer?

(a) The RAN answers in the name of RASHI that the Gemara wants to know how far one may travel without the wine becoming forbidden, when the Jew did not tell the Nochri that he was going away.

The RITVA argues that this cannot be the Gemara's question. The argument between the Tana Kama and Raban Shimon ben Gamliel applies only when the Jew told the Nochri that he was departing for a while, and even then it is after a certain amount of time passes. The first case of the Mishnah is obviously one in which the Jew never mentioned that he was leaving, and therefore the wine is b'Chezkas ha'Mishtamer even if the Jew leaves for longer than the amount of time given by the Tana Kama and Raban Shimon ben Gamliel. Second, the question, "What is the case of Chezkas ha'Mishtamer," seems to be asking for a description of the case, and is not asking how long the person can go and still have his wine remain b'Chezkas ha'Mishtamer.

(b) The RITVA therefore explains that the assumption in our original question is incorrect. The Mishnah does not state explicitly that the wine is b'Chezkas ha'Mishtamer when the Jew did not tell the Nochri that he was leaving. Rather, the Mishnah says only that if the wine was b'Chezkas ha'Mishtamer, then it is permitted. In the second part of the Mishnah, the Mishnah gives details regarding a case in which the Jew told the Nochri that he was leaving. The Ritva says that the Mishnah implies that even if the wine was b'Chezkas ha'Mishtamer, if the Jew told the Nochri he was leaving it could still become forbidden.

If the Mishnah's intention is to state, as we assumed initially, that when the Jew does not tell the Nochri that he is leaving, the wine is considered b'Chezkas ha'Mishtamer, then it should have taught first the case in which the Jew tells the Nochri that he is leaving (with the argument between the Tana Kama and Raban Shimon ben Gamliel), and then, afterwards, it should have added that if the Jew does not say that he is leaving, then the wine is permitted. TOSFOS (DH Heichi Dami), who agrees with the Ritva, explains that the first case in the Mishnah should have simply said that the wine is permitted without mentioning Chezkas ha'Mishtamer. We would have understood from the second case (in which he told the Nochri that he was leaving) that the first case is when he did not say he was leaving!

The Ritva adds that since the first case in the Mishnah is discussing open barrels as well, how is it that an open barrel is considered b'Chezkas ha'Mishtamer if the Jew walks as far as a Mil or more away? The Nochri definitely will be able to put the wine down, touch it, and then continue even though he was not informed that the Jew was leaving! This is why the Gemara appropriately asks what is the case where even open wine is considered Mishtamer. The Ritva quotes this opinion in the name of the RAMBAN.

(c) The RE'AH has a different variation of this question. The Re'ah understands, as does Rashi, that the first case is clearly discussing a Jew who did not tell the Nochri that he was leaving, since we can infer from the second case of the Mishnah -- in which the Jew did tell the Nochri that he was leaving -- that the first case is when he did not tell the Nochri he was leaving. The wine is definitely b'Chezkas ha'Mishtamer for as far as the Jew may travel. The Gemara was bothered by the second of the Ritva's questions. The Nochri definitely will be able to put down an open barrel of wine, touch it, and continue as even nothing happened, in a very short amount of time. Why is even an open barrel considered b'Chezkas ha'Mishtamer for an unlimited distance when the Jew does not tell the Nochri that he is leaving?

The Ritva comments that here, too, the language of the Gemara's question, usually translated as, "What is the case of b'Chezkas ha'Mishtamer" ("Heichi Dami"), does not seem to fit the Re'ah's understanding, as the Re'ah is explaining that the question is "why is it permitted." (Y. MONTROSE)

OPINIONS: Rava rules that the wine of a Jew who dines with a Nochri harlot is permitted to be consumed, and we do not assume that the Jew let the Nochri woman touch the wine (this is assuming that the Jew does not other prohibitions which would prohibit his wine, such as publicly desecrating Shabbos). Rava explains that although the Jew is overcome by lust, he has no strong urge to turn his wine into Yayin Nesech. On the other hand, the wine of a Jewish female harlot who is in the company of Nochrim becomes prohibited. Since she denigrates herself in their eyes, she follows their will and lets them pour the wine, making it into Yayin Nesech.

The RITVA comments that in the first case of Rava, he is teaching that even when the wine was open at the party, the Jew will not let the Nochri woman touch it. In his second case, he is teaching that even if the wine was originally closed, it may no longer be consumed since the Jewish woman probably let them open and pour the wine. The Ritva says that an exception to this would be a case in which we find a completely sealed barrel of wine in her presence, in which case it is obvious that the Nochrim did not tamper with it.

These Halachos are cited by the SHULCHAN ARUCH (YD 129:14). Does the Shulchan Aruch's ruling that one may drink wine of a Jew who dines with a Nochri harlot still apply today?

(a) The TAZ (YD 129:24) says that, unfortunately, this Halachah no longer applies in the times after the Shulchan Aruch. The Gemara is discussing a time when Nochrim were very involved in idolatry and would pour wine to their idols without hesitation. This is why the Gemara rules that even Stam Yayin is forbidden from benefit. However, nowadays the Nochrim are not as involved in idolatry as they used to be, and thus many Poskim (such as the REMA in YD 123:1) rule that one may benefit from Stam Yayin. Accordingly, a profligate Jewish man today has much less motivation to keep his Nochri woman-friend away from his wine, since he will still be permitted to benefit from it (such as by selling it) if she touches it. In addition, today the opposite situation exists -- more "observant" Jews are suspected of drinking wine of Nochrim than of having immoral relations with Nochrim. Therefore, a Jew who has such a relationship with a Nochri is certainly suspected of not caring about Stam Yayin, and thus if his wine was in the company of his Nochri companion, it is considered Stam Yayin.

(b) The YESHU'OS YAKOV (YD 129:1) argues with the Taz and says that even nowadays one may rely on the ruling of the RAMBAM (Hilchos Ma'achalos Asuros 12:26) and Shulchan Aruch (ibid.) that such wine is not considered Stam Yayin. He explains that we apply a different logic than the Taz. Since we see that we are more lenient today with Stam Yayin, as the Rema and many other Poskim write, we have no reason to make new stringencies regarding Stam Yayin when the Nochrim no longer pour wine for Avodah Zarah.

The DIVREI YOSEF (3:882) agrees with the Yeshu'os Yakov. He agrees, also, with the point of the Taz that the prohibition more disregarded today is that of drinking Stam Yayin, but, nevertheless, someone who is promiscuous with Nochrim does so because he has a strong evil desire to do so, which he does not have regarding pouring his wine to Avodah Zarah. (Y. MONTROSE)