Can you sue if an idolater makes your wine prohibited?

Provided courtesy of Real Clear Daf

We learned about this on 59b. Rav Ashi there rules that if an idolater purposely makes wine that belongs to a Jew into an idolatrous libation the Jew may collect payment from the idolater. Why isn’t this a violation of the prohibition against benefiting from nesech wine? Because this Jew is not receiving money in exchange for nesech wine, rather, he is collecting restitution for his kosher wine that was ruined. This argument appears quite straightforward and we would expect the discussion to end here. Yet for some reason (see further) Rav Ashi feels compelled to further persuade us that his ruling is on solid ground.

To this end Rav Ashi points to the position of R’ Yehuda ben Bava and R’ Yehuda ben Beseira. In their opinion, if an idolater purposely offers a Jew’s wine as an idolatrous libation, the wine remains permitted. One of the reasons they offer for this position is that the Jew can say to idolater, “You have no right to prohibit my wine!” So too in our case, Rav Ashi argues, the Jewish wine-owner reserves the right to sue the pagan damager since this damager has “no right” to get out of paying through his idolatrous action, i.e. his action does not confer a status upon the wine that forbids the Jew from accepting payment for it.

As the Rishonim point out, at first glance the opinion of RY”B Bava/RY”B Beseira has nothing to do with our discussion. For in our discussion we are working with the accepted halacha that an idolater does have the power to make someone else’s property forbidden as an object of idolatry. How then can the opposing view of RY”B Bava/RY”B Beseira provide any halachic guidance for us? So aside from being unnecessary, this citation of the Braissa seems totally irrelevant!

In order to try and deal with this problem, let’s pause to consider the fundamental dispute between RY”B Bava/RY”B Beseira and the Rabbanan on the question of whether an idolater has the power to make someone else’s property prohibited by offering it to an idol. The truth is that everyone agrees to the basic idea that a person cannot make someone else’s property prohibited without the owner’s consent. However, in our case, where this idolater physically acted upon the property in question, there is a basis to argue that the idolater can make this Jew’s wine prohibited. Just like if someone were to melt cheese on someone’s hamburger--the physical reality is that the food has become prohibited--so too when the idolater physically offers the wine to his idol--the plain fact is that this wine is an idolatrous offering. Seemingly the Rabbanan use this factor to argue that through his action, the idolater has made this wine into an actual idolatrous libation and therefore it becomes forbidden from all benefit.

However Tosfos uses language that points to a different way to interpret the Rabbanan’s opinion--a different way that fortunately answers our questions. Tosfos says that the Gemara’s proof is that in light of the opinion of RY”B Bava/RY”B Beseira, the Rabbanan--although they clearly argue with RY”B Bava/RY”B Beseira--presumably would not be “so much more stringent [than RY”B Bava/RY”B Beseira]” to even prohibit the Jewish wine-owner from benefitting from the damager himself. “More stringent?” This is not a question of being more or less stringent; it is simply a question about whether there is a Biblical status of an idolatrous offering on this wine! Tosfos implies that actually the question of a Biblical problem is not up for discussion here: all opinions, even the Rabbanan, agree that no Biblical problem exists in our case where the idolater brought the wine as an offering against the owner’s will. Instead the Rabbanan are of the opinion that since this idolater physically acted upon the wine, the wine becomes Rabbinically forbidden.

Now the Gemara reads beautifully: although Rav Ashi lays down a straightforward argument for allowing the monetary collection from the idolater who ruined the wine, things aren’t so simple when you’re in the world of Rabbinic enactments. That is, even if technically we’re dealing with a payment of restitution, the trade of nesech wine for money here might still warrant a Rabbinic prohibition. To beat back any any such claim, Rav Ashi cites the opinion of RY”B Bava/RY”B Beseira. In their opinion, the argument of “you have no right to prohibit my stuff” is so strong that we completely discount the idolater’s action, and the wine can even be sold. There is a general assumption that in any Talmudic dispute, the disputants do not hold views that are radically different from one another. Therefore, Rav Ashi reasons, we can assume that the Rabbanan do except RY”B Bava/RY”B Beseira’s argument to the extent that we will not forbid the Jewish owner from collecting payment from the pagan damager due to the bad “optics” of it.

I hope you’ve enjoyed a new way to read daf 49b in Avodah Zarah.