Amemar admits that R. Ashi would be correct if all he is concerned about is a case where the Jew was pouring into Jewishly owned vessels. But if the Jew is pouring into a vessel owned by the non-Jew, the wine will indeed become nesekh immediately. Thus this source really has nothing to do with acquisition through meshikhah.
Even according to Amemar’s situation, where the wine is put into the non-Jew’s vessel, we can still say that it is acquired before it becomes nesekh, and thus Rav’s instructions are not necessary. For as soon as the wine enters the vessel, even the vessel’s airspace, it would be acquired by the non-Jew. But it would not become nesekh until it reaches the bottom. So why would this be a problem—the non-Jew would be paying for regular wine. Perhaps, the Talmud suggests, that Rav holds that liquid being poured counts as a connective. If so, then when the beginning of the flow hits the bottom, the entire stream becomes nesekh, and then the wine would become nesekh while still in the Jew’s possession. Note—the Talmud does not think that flow serves as a connective. This is why this is a difficulty.
Amemar further resolves the difficulty by saying that in this case the non-Jew was not holding the vessel. Therefore, he does not acquire it before it becomes nesekh by having been put in the non-Jew’s vessel.
Amemar had just said that Rav referred to a case where the non-Jew’s vessels were on the ground and therefore he did not acquire the wine until he picked it up. By this point it was already nesekh. This seems to imply that in general if a purchaser’s vessels are in the domain of the seller, the vessels do not effect acquisition for the purchaser.
Again, we reject the previous conclusion. The purchaser does acquire the wine as soon as it is put into his jug. And still the wine becomes nesekh before it hits the bottom because there might be a little bit of wine belonging to the non-Jew left over in the vessel into which the Jew pours his wine. As soon as the Jew’s wine hits this wine, it becomes nesekh, even before it is acquired by the non-Jew.
Rav’s instruction seemingly do not accord with Rabban Shimon b. Gamaliel. Rabban Shimon b. Gamaliel says that when yayin nesekh (in this case, the drop in the vessel) becomes mixed up with non-nesekh wine (the Jew’s wine), the entire mixture can be sold to a non-Jew minus the value of the nesekh. So why should he not be able to receive payment for his wine when it became nesekh in the possession of a non-Jew?
The Talmud resolves this by pointing out that Rav says that the halakhah follows R. Shimon b. Gamaliel only when casks of permitted and forbidden wine get mixed up. But if yayin nesekh becomes mixed with other wine all of the wine becomes prohibited and may not even be sold to non-Jews.
In yesterday’s (long) section we learned that according to Amemar a non-Jew can acquire through meshikhah. Today’s section continues to discuss this.
The Jew buys scrap metal from a non-Jew and finds an idol in the heap. He wants to return the idol and receive regular scrap metal in its place. If he has not yet paid the coins he can return the idol, but if he already paid, he may not. This baraita seems to prove that in a transaction with a non-Jew, drawing the object acquires it—once the Jew has drawn the idol to himself, he may not return it.
Abaye says that he may return the idol because it is a mistaken acquisition. He was supposed to be buying srap metal—broken pieces of silver, gold, etc. He did not think that he was buying idols. Thus the whole sale is annulled.
Rava says that if the first half of the baraita is a mistaken purchase and therefore annulled, then both cases are a mistaken circumstance. So why is he not allowed to return the idol in the second case?
Rava answers that both cases are mistaken purchases and therefore, in principle, he should be able to return the idol in either case. However, in the second case, since he already paid the money, it looks like the idol is already his and that he is selling it back to the non-Jew. Therefore, he may not return it. But in the first case, it does not look like he has acquired the idol so he may return it.
The sugya continues to discuss whether meshikhah acquires in transactions with non-Jews.
Ashi had said that meshikhah does not effect acquisition in transactions with non-Jews. Mar Kashisha raises our mishnah as a difficulty on him. In the mishnah, as long as the Jew sets the price before he measures it out, the sale is permitted. The non-Jew acquires the wine as soon as it enters his possession and it does not become nesekh until later. This seems to prove that meshikhah acquires.
Ashi says that this is a case where he paid him before. Thus the money came into the hands of the Jew before the non-Jew touched the wine. It seems to be the payment that effects transition, not the meshikhah.
The problem with R. Ashi’s resolution is that it does not accord with the end of the mishnah—if the non-Jew gave the Jew the dinar before the wine was measured out, why should it become prohibited?
To R. Ashi, if meshikhah effects transition, then the purchase money should be permitted in both cases, for in both cases the non-Jew acquires the wine and becomes liable for the payment before he touches it and makes it nesekh. Effectively, R. Ashi is showing that the operative principle in the mishnah is not acquisition through meshikhah.
To R. Ashi, the determinative factor is not meshikhah, but whether or not the non-Jew is certain that the Jew will sell him the wine. If the Jew set the price then the non-Jew is assured he will get the wine and he basically acquires the wine before it becomes nesekh. But if the Jew did not set the price, then the non-Jew is not sure the sale will happen and he does not acquire the wine even if he pays for it beforehand. The wine does not become his even after he touches it. This is why it is prohibited.
Today’s sugya continues to discuss whether meshikha (drawing an object towards oneself) acquires for a non-Jew.
Ravina uses a baraita about Noahides to prove that meshikhah acquires for non-Jews. Noahides are non-Jews, and according to the Talmud they are obligated to keep seven commandments, one of which is the commandment not to steal. As far as punishments goes, in Talmudic law the Noahide is punished by death—there are no other punishments. I should emphasize that these laws are totally theoretical, there is no evidence that they were ever applied or even meant to apply in real life.
According to the baraita, a Noahide who steals from a Jew is liable for the death penalty, even if he steals less than a perutah’s worth of property. Furthermore, he does not have to give the property back. This seems to prove that it is his and therefore that he can acquire through meshikhah.
Ashi rejects this reading of the baraita—he is not executed because he acquired the property. He is executed because he gave trouble to a Jew.