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Babylonian Talmud: Tractate ‘Abodah Zarah

Folio 71a

GEMARA. I quote in contradiction to this: When a city has been captured by besieging troops, all the wives of priests therein are disqualified [to their husbands]!1  — R. Mari said: [The soldiers] have no leisure to offer libations, but they have it to satisfy their lust.

MISHNAH. IF A HEATHEN SENT TO ISRAELITE CRAFTSMEN A CASK OF YEN NESEK AS THEIR WAGE, THEY ARE ALLOWED TO SAY, GIVE US ITS VALUE IN MONEY';2  BUT AFTER [THE WINE] HAS COME INTO THEIR POSSESSION [THE EXCHANGE] IS PROHIBITED.3

GEMARA. Rab Judah said in the name of Rab: A man is allowed to say to a heathen, 'Go and settle for me the king's portion.'4  Against this is quoted: A man may not say to a heathen, 'Go in my place [and give a bribe] to the official'! — Rab retorted: You speak of a case where a man says, 'Go in my place [and give a bribe] to the official.'5  But the circumstance [where I give permission is quite different] and is the equivalent of: He may, however, say to him, 'Save me from the official.'6 

MISHNAH. IF [AN ISRAELITE] SELLS HIS WINE TO A HEATHEN, SHOULD HE HAVE SETTLED THE PRICE BEFORE HE MEASURED IT OUT, THE PURCHASE-MONEY IS PERMITTED; BUT SHOULD HE HAVE MEASURED IT OUT BEFORE HE SETTLED THE PRICE,7  THE PURCHASE-MONEY IS PROHIBITED.

GEMARA. Amemar said: Acquisition by meshikah8  does apply to a Gentile.9  You may ascertain this from the practice of the Persians who send presents10  to one another and never retract.11  R. Ashi said: I certainly maintain that acquisition by meshikah does not apply to a Gentile, and the reason why [the Persians] do not retract is due to the spirit of pride which possesses them.12  R. Ashi said: What is my authority for this statement? That which Rab told the [Israelite] wine-sellers, viz., 'When you measure wine for Gentiles, first take the money and then measure for them, and if they have not the cash with them, lend it to them and get it back later so that it should be a loan [of money] with them; for should you not act in this manner, when it becomes yen nesek it will be in your possession and when you receive payment it will be for yen nesek.' Now should it enter your mind [argued Rab Ashi] that acquisition by meshikah does apply to a Gentile,

Original footnotes renumbered. See Structure of the Talmud Files
  1. Keth. 27a. The assumption is that they were violated; and a priest's wife, even when dishonoured by force, is disqualified to her husband.
  2. Because their wages were due in money.
  3. Once in their possession the wine belongs to them, and to get money in exchange for it is the equivalent of its sale.
  4. The royal levy on the subject's produce which was paid in kind. If what the heathen paid over included yen nesek, it is permitted although the Jew is discharging his obligation with what is prohibited.
  5. Therefore if the heathen presents him with wine, it is as though the Israelite had given it, and he cannot use yen nesek for that purpose.
  6. To secure himself from molestation he requests the heathen to make a present to the official. He would be willing to make a gift of money; so if the heathen gave him wine, he is not technically the Jew's agent in the presentation of that wine and for that reason it is allowed.
  7. The heathen has not acquired the wine by drawing it towards himself; but by touching it he rendered it nesek. Therefore the Jew is in fact selling disqualified wine.
  8. V. Glos.
  9. Before the payment of the money, whether the seller or purchaser is a Gentile; consequently in the circumstance described in the Mishnah the money should be permitted.
  10. [Another rendering: 'Samples'. Rashi in name of Gaonim.]
  11. Because having once passed into the possession of the receiver it is considered his property. [Or, having accepted the samples, the transaction is deemed closed.]
  12. And legally they could demand its return.

‘Abodah Zarah 71b

 then as soon as the Gentile drew [the wine] to himself he acquired it1  and it did not become yen nesek until he touched it!2  — It would indeed not be so if the wine was measured and poured [by the Israelite] into the Israelite's vessel;3  but it is necessary [to suppose the circumstance] where [the Israelite] measured and poured it into the Gentile's vessel.4  At all events when [the wine] enters the interior of the vessel [the Gentile] acquired it,5  and it does not become yen nesek until it reached the bottom of the vessel.6  Are we, then, to conclude that the flow is a connecting link?7  — No; if the Gentile was holding the vessel in his hand it would indeed not be so;8  but it is necessary [to suppose the circumstance] where it was resting upon the ground.9  But let [the Gentile's] vessels acquire [the wine] for him!10  Is it to be deduced from this that when the purchaser's vessels are in the possession of the seller the former has not become the owner?11  — No; I can always maintain that the purchaser does acquire them; but with what are we dealing here?12  E.g., when there is some wine held back on the mouth of the smaller vessel13  through which the former wine becomes all the while nesek even before [it enters the Gentile's vessel].14  According to whom will this be? — It will not be in accord with R. Simeon b. Gamaliel; for if it were in accord with him, behold he has said: All of it may be sold to a heathen with the exception of the value of the yen nesek which is in it!15  — Against whom is this argument [directed]? Against Rab; but he himself declared that the halachah agrees with R. Simeon b. Gamaliel only when a cask [of yen nesek] became mixed with other casks but not when wine [which is nesek] became mixed with other wine.

Against [the statement of Amemar that acquisition by meshikah does apply to a Gentile] is quoted: If one bought scrap metal from a heathen and found an idol amongst it, should he have drawn it to himself before paying over the purchase price he can return the idol; but should he have drawn it after paying over the purchase money, he casts [the profit he derives from it] into the Salt Sea!16  Now if it enters your mind that acquisition by meshikah does apply to a Gentile, how can he return it?17  — Abaye said: Because it appears to be a purchase in error.18  Raba said: Is there a purchase in error in the first circumstance and not in the second!19  — But, said Raba: There is a purchase in error in both circumstances; but in the first, since he had not paid over the money, it does not appear like an idol in the possession of an Israelite, whereas in the second, since he had paid over the money, it does appear like an idol in the possession of an Israelite.20

Mar Kashisha, son of R. Hisda, said to R. Ashi: Come and hear: IF [AN ISRAELITE] SELLS HIS WINE TO A HEATHEN, SHOULD HE HAVE SETTLED THE PRICE BEFORE HE MEASURED IT OUT, THE PURCHASE-MONEY IS PERMITTED. Now should you maintain that acquisition by meshikah does not apply to a Gentile, why is the purchase-money permitted?21  — [R. Ashi replied:] With what are we dealing here? When he paid him the denar22  beforehand. [Mar Kashisha said]: If so, I quote the continuation: BUT SHOULD HE HAVE MEASURED IT OUT BEFORE HE SETTLED THE PRICE THE PURCHASE-MONEY IS PROHIBITED. Now if he paid him the denar beforehand, why should the purchase-money be prohibited? — [R. Ashi replied:] But according to you who maintain that acquisition by meshikah does apply to a Gentile, why in the first circumstance is the purchase-money permitted and prohibited in the second! What you have to say is that when he settled the price his mind is made up [to acquire the wine] and if he had not settled the price his mind is not made up. Similarly, according to my view, even when he has paid him the denar in advance, should he have settled the price his mind is made up and if he had not settled the price his mind is not made up.23

Rabina said to R. Ashi: Come and hear: R. Hiyya b. Abba said in the name of R. Johanan: A son of Noah24  is put to death for stealing less than a perutah's worth [of the property of an Israelite] and is not obliged to make restitution. Now if you maintain that acquisition by meshikah does not apply to a Gentile, why should he be put to death?25  — Because he caused trouble to an Israelite.26

Original footnotes renumbered. See Structure of the Talmud Files
  1. Even before paying for it.
  2. In that case how could Rab insist on payment first on the ground that otherwise the Israelite would be selling yen nesek, since on the supposition that a Gentile acquires by meshikah the wine does not become nesek until after it had passed into his possession? Therefore the supposition is wrong and we must conclude that meshikah does not apply to a Gentile.
  3. The wine would not become nesek until after it had passed into the Gentile's possession by his touching it.
  4. The wine would then become nesek as soon as it was poured out because the vessel is prohibited and communicates forthwith the prohibition to the wine, even before the heathen drew it towards himself; so there is nothing to prove that meshikah does not apply to a Gentile.
  5. If he held the vessel while the wine was poured into it.
  6. Why then should Rab require the money to be paid first, seeing that the wine does not become nesek until after it had passed into the possession of the Gentile?
  7. [I.e., the flow of the liquid connects the two vessels and conveys the prohibition of the Gentile's vessel to that of the Israelite's, from which it is poured out, making the wine it contains nesek even before it had been acquired by the Gentile.] This question is debated in B.B. 85b. V. also supra 56b, and infra 72b.
  8. [Rab would not demand the payment of the money first, because he might hold that the flow is no connecting link.]
  9. While the wine is poured out, and in that circumstance Rab does prohibit the money unless paid first, since the wine becomes nesek while still in the possession of the Israelite.
  10. [Why then should Rab demand payment in advance?]
  11. Of the contents which the seller put into them even before the purchaser takes hold of the vessels, so that the wine becomes nesek even before it passed into the possession of the Gentile.
  12. The reason why Rab demanded payment in advance was not based on the law of meshikah but is to be sought in the cause which is now explained.
  13. Of the Gentile into which the wine is poured from the Israelite's vessel. These drops retained on the rim are yen nesek before the wine enters the interior of the vessel and becomes the possession of the Gentile.
  14. [Every portion of the wine passing over the brim becomes contaminated through these drops.]
  15. V. infra 74a, referring to yen nesek which fell into a vat. [Likewise here the money of all the wine apart from the value of the drops retained on the brim should be permitted.]
  16. Supra 53a.
  17. It is then an idol in a Jew's possession and his duty is to destroy it.
  18. The Jew did not intend to buy an idol; for that reason he may return it.
  19. If that were the true explanation, it should hold good in both instances.
  20. And if he received money back for its return, the impression would be that he had sold the idol to the heathen.
  21. Since on that hypothesis the wine belongs to the Jew until he is paid and it becomes nesek by the heathen touching it before he pays for it.
  22. Representing the cost of the wine. The money was handed over before the wine was measured out.
  23. That is the criterion underlying the Mishnah and it has no bearing on the question of meshikah.
  24. Who took upon himself seven precepts (v. supra p. 314) one of which was to abstain from robbery, v. Sanh. (Sonc. ed.) p. 381, n. 5.
  25. Since technically what had been stolen is still the Jew's property.
  26. The thief is not put to death for the theft, but for the reason that he may have endangered the Jew's life; because if the owner had tried to prevent the robbery the thief might have killed him.