Avodah Zarah, Daf Ayin Aleph, Part 5

 

Introduction

The sugya continues to discuss whether meshikhah acquires in transactions with non-Jews.

 

א"ל מר קשישא בריה דרב חסדא לרב אשי ת"ש המוכר יינו לעובד כוכבים פסק עד שלא מדד דמיו מותרים ואי אמרת משיכה בעובד כוכבים אינה קונה אמאי דמיו מותרין

 

Mar Kashisha, son of R. Hisda, said to R. Ashi: Come and hear: If [a Jew] sells his wine to a non-Jew if he set the price before he measured it out, the purchase-money is permitted. Now should you say that acquisition by meshikhah does not apply to a non-Jew, why is the purchase-money permitted?

 

R. 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.

 

הכא במאי עסקינן דאקדים ליה דינר

 

[R. Ashi replied:] What are we dealing with here? When he paid him the dinar beforehand.

 

R. 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.

 

א"ה אימא סיפא מדד עד שלא פסק דמיו אסורין ואי דקדים ליה דינר אמאי דמיו אסורין

 

[Mar Kashisha said]: If so, what about the end [of the mishnah]: But if he measured it out before he set the price, the purchase-money is prohibited. Now if he paid him the dinar beforehand, why should the purchase-money be prohibited?

 

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?

 

א"ל ולדידך דאמרת משיכה בעובד כוכבים קונה אמאי רישא דמיו מותרין וסיפא דמיו אסורין

 

[R. Ashi replied:] But according to your reasoning, that acquisition by meshikhah does apply to a non-Jew, why in the first clause is the purchase-money permitted and prohibited in the second!

 

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.

 

אלא מאי אית לך למימר פסק סמכא דעתיה לא פסק לא סמכא דעתיה לדידי נמי אע"ג דקדים ליה דינר פסק סמכא דעתיה לא פסק לא סמכא דעתיה

 

Rather, what can you say? When he set the price, his mind is made up [to acquire the wine] and if he had not set the price, his mind is not made up. Similarly, according to my view, even when he has paid him the dinar in advance, should he have set the price his mind is made up and if he had not set the price his mind is not made up.

 

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.