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Avodah Zarah, 72
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1) HOW BINDING IS A VERBAL COMMITMENT TO SELL?
QUESTIONS: The Gemara discusses a case in which one person told his friend,
"If I sell this field, I will sell it to you." The two parties made a Kinyan
confirming the owner's verbal commitment. In spite of his agreement and
Kinyan, however, the owner sold the field to someone else. Rav Yosef and
Abaye argue about the law in such a case. Rav Yosef says that the first
person already acquired the field and therefore may take it away from the
second person. Abaye says that the second person may keep his purchase,
because the original two parties did not finalize a purchase price when they
made their agreement. If they had finalized a price when they made their
agreement, then everyone would agree that the first person has the rights to
the field, unless the second agreed to pay a higher price (see the Gemara
The SHULCHAN ARUCH (CM 206:1) adds some details to the case. He writes that
if the owner of the field says, "When I sell this field, *it is sold to you
from now* for one hundred Maneh," and he makes a Kinyan, then the first
person acquires the rights to buy the field.
Why does the Shulchan Aruch change the language of the agreement to, "it is
sold to you," instead of using the Gemara's language of, "I will sell it to
you?" In addition, why does the Shulchan Aruch add the words, "from now,"
which are not mentioned by the Gemara?
(a) The TAZ and NESIVOS HA'MISHPAT (CM 206:1) explain that there is an
argument whether or not a commitment in which a person attributes a future
action (such as "I will sell the object to you") to the present moment
("that will take effect from right now"). The Shulchan Aruch (CM 245:4)
writes that there is an opinion that maintains that such a commitment is
binding. The Shulchan Aruch here (CM 206:1), however, writes the Halachah in
accordance with the opinion that maintains that such a combination of tenses
is not binding, and this is why he alters the case to read, "... it is sold
to you from now," using the present tense for both the action ("it is sold")
and the time that it takes effect ("from now"). The TUR (CM 206:1), on the
other hand, rules in accordance with the opinion that such a statement is
binding, and therefore he records the case as it appears in our Gemara.
(b) The Shulchan Aruch is following the view of earlier opinions that
include the words "from now" in the person's statement. This is the wording
of RAV HAI GA'ON (SEFER HA'MEKACH, Sha'ar 37), the RAMBAM (Hilchos Mechirah
8:7), the BA'AL HA'ITUR (400:39b), the Tur and others. The BEIS YOSEF (CM
206:1) himself explains why one must say "from now" in order for the
commitment to be binding. He explains that without this statement, it is
only a Kinyan Devarim (an acquisition of mere words) which is not binding.
In addition, in a regular deal the purchaser must obligate himself to buy
the property in question. The words "from now" take away these two problems,
since the transaction takes effect now, requiring the owner to sell and the
purchaser to pay the price (see DERISHAH).
(c) The Beis Yosef further quotes the Ba'al ha'Itur (400:11) who says that
without the words "from now," the transaction is merely an Asmachta, a
commitment to an uncertain transaction. We rule that an Asmachta-transaction
is not binding. However, the Ba'al ha'Itur adds that this case is not really
a case of Asmachta, as there are no additional details which are part of the
transaction which have yet to be clarified (see Beis Yosef, CM 207:13, for
an extensive discussion about whether or not extra details define an
(d) The DERISHAH points out that according to the Tur -- who also includes
the words "from now" in the owner's statement -- neither the reason of
Asmachta nor the reason of Kinyan Devarim applies to require those words
("from now") to be said. The Tur rules like the opinions mentioned above
that maintain that this statement, even without the words "from now," is not
an Asmachta. In addition, the opinion of TOSFOS in Bava Metzia (66a, DH
u'Minyumi) and the ROSH there (5:29) is that in the case of any normal
Kinyan, the Kinyan is made with the understanding that the Kinyan is
activated "from now" unless specified otherwise, and this is also the
opinion of the Tur. Consequently, there must be a different reason for why
the Tur requires the words "from now" to be said.
The Derishah explains that even though a normal Kinyan is valid "from now"
without these words being stated, this is not true in our case. When the
owner says, "When I will sell it, I will sell it to you," it is not
reasonable to say that the Kinyan is a regular Kinyan that should take
effect from right now, because his language indicates that everything is to
take place in the future (see also S'MA CM 206:1). (Y. Montrose)
2) HALACHAH: THE LAW OF "NITZUK CHIBUR" WITH REGARD TO "YAYIN NESECH"
OPINIONS: The Gemara records different opinions regarding whether or not the
principle of "Nitzok Chibur" applies to Yayin Nesech. "Nitzok Chibur" means
that the column of flowing liquid creates a Halachic connection between the
liquid in the first container with the liquid in the second container. Rav
Huna (on 72a) proves that if one pours wine into a barrel containing Yayin
Nesech, then all of the wine in the first container also becomes Yayin
Nesech when the first drops of wine being poured touch the Yayin Nesech in
the second barrel. Rav Nachman refutes Rav Huna's proof. What is the
(a) The RAMBAN quotes RABEINU CHANANEL who rules that Nitzok *is* a
Chibur -- it does create a connection. He explains that Rav Nachman himself
never directly argued with Rav Huna; he merely refuted his proof. In
addition, Rav Chisda (72b) told people who would pour wine for Nochrim to do
so by stopping the stream of wine from the top of the pitcher before the
first droplets of wine reach the bottom vessel (which is easier to do when
pouring from a distance), or to throw the wine into the vessels of the
Nochrim. Both ways indicate that Rav Chisda was wary of the fact that Nitzok
is a Chibur. This is also the opinion of TOSFOS (DH Kocho), the RAMBAM
(Hilchos Ma'achalos Asuros 12:12), and many other Rishonim.
RASHI (DH d'Gava'i) also says that we rule that Nitzok is a Chibur. The
Gemara states that if someone pours wine from a barrel into a pit, the wine
that drips off of the barrel is forbidden. Rav Ashi explains that this is
referring to a Nochri who pours wine. Rav Ashi understands that Nitzok is a
Chibur, and no one afterwards argues on his statement. This indicates that
the Halachah follows the opinion that Nitzok is a Chibur. Since the Nochri's
effect on the wine creates only an Isur d'Rabanan (as he is not touching the
actual wine), he only prohibits the wine that drips or pours out of the
barrel, but not the wine inside the barrel.
The RITVA, RAN, RAMBAN and others ask that Rashi's words are difficult to
understand. How can Rashi say in the same sentence that we rule "Nitzok
Chibur" and also that whatever is not poured and remains inside the barrel
is *not* forbidden? Once we say that the part poured outside the barrel is
Yayin Nesech, that automatically connects the rest of the contents of the
barrel with the wine that was poured out and it should all become Yayin
The Ritva and Ran answer that since the only reason the wine outside the
barrel is forbidden is because of an Isur d'Rabanan, the Rabanan were
lenient and said that in such a case the law of Nitzok does not forbid what
remains inside the barrel, but only what drips outside of the barrel.
The RA'AVAD and RABEINU YITZCHAK (quoted in SEFER HA'YASHAR #719) also rule
that Nitzok is a Chibur. However, they argue that Rav Ashi is not of this
opinion, because if he held that Nitzok is a Chibur, then all of the wine in
the barrel would be forbidden.
(b) The RABOSEINU HA'TZARFASIM are quoted by the Rishonim as ruling that
Nitzok is *not* a Chibur. This is also the opinion of RABEINU TAM. In the
discussion between Rav Huna and Rav Nachman, the Gemara concludes that Rav
Huna's proof is not conclusive. Just as we find that in this case, Rebbi
Chiya was unsure of the Halachah, Rav Huna himself may have been unsure as
well. This is supported by the Gemara earlier (56b) that first assumes that
Rav Huna made a certain statement because he holds "Nitzok Chibur," and then
the Gemara answers that the case there is different and it is not a case of
"Nitzok Chibur." If, however, the Gemara here is certain that Rav Huna holds
"Nitzok Chibur," then why does the Gemara earlier not interpret Rav Huna's
statement to be in accordance with his view that Nitzok is a Chibur?
There seems to be a strong proof to this opinion in the Gemara later
regarding the "Kanishkanin," the wide jugs that had two or three reed-straws
coming out of their sides, reaching the height of the jug (which would fill
up when the jugs were filled with wine, enabling a number of people to drink
from the jugs at one time). The Gemara states that Mar Zutra and Rabah
permitted Jews to drink from the Kanishkanin together with a Nochri, as long
as the Nochri did not stop drinking. The jug of wine becomes forbidden only
when the Nochri stops drinking, because the wine he stopped drinking goes
back down into the jug, making all of it forbidden. According to one version
of the Gemara, Rabah himself drank wine in such a manner. According to all
those who rule that Nitzok is a Chibur, why is this permitted? As soon as
the Nochri begins to drink, the jug should become forbidden, because all of
the wine is connected to the wine that the Nochri is drinking! It is this
Gemara which persuades the RAMBAN to conclude that Nitzok is *not* a Chibur.
The Ritva answers that it is possible that the decree of Nitzok only applies
when one pours something with his hand. In the case of Kanishkanin, the
Nochri's contact with the wine involves only his lips. Since most Nochrim
who pour wine for Avodah Zarah do not do so with their lips alone, the
Rabanan did not apply their decree of "Nitzok Chibur" in such a case. (See
also the answer of the Ran in the name of the Ra'avad.) (Y. Montrose)