Yein Nesekh and Cooked Wine

The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

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YEIN NESEKH

AND COOKED WINE

Based on a Shiur given by Harav Aharon Lichtenstein

The question whether or not the prohibition of yein nesekh applies to cooked wine arises in numerous situations, especially in hotels in which non-Jewish workers come into contact with bottles of wine. In this lecture, we shall review the parameters of the prohibition of yein nesekh and examine the allowance applying to cooked wine.

YEIN NESEKH

AND SETAM YEINAM

The term "yein nesekh" (lit., "wine poured as a libation") refers to wine used in idol worship. By Torah law one is forbidden to drink or benefit from such wine. According to most Rishonim, such wine is forbidden because of the general prohibition to derive benefit from an idolatrous offering. According to the Rambam, there is a special prohibition that forbids yein nesekh.

Over and beyond the Torah prohibition applying to wine that was actually used in idol worship, the Sages forbade "setam yeinam" – any wine belonging to a non-Jew, even though it was not used for idol worship. So too they prohibited any wine belonging to a Jew that was touched by a non-Jew.

The prohibition of setam yeinam falls into the category of prohibitions that the Sages imposed upon the foodstuffs of a non-Jew: "bishulei akum" (food cooked by a non-Jew), "pat akum" (bread baked by a non-Jew) and the like. The rationale underlying all these prohibitions is "mishum benoteihem" – "because of their daughters." That is to say, the Sages wished to establish a clear separation between Jews and Gentiles, and so they forbade the foods of non-Jews that are likely to lead to unnecessary contact and intimacy between them. It is forbidden to eat (or drink) such foods, but there is no prohibition to derive benefit from them.

Why then is one forbidden to derive benefit from setam yeinam? The Rishonim explain that the prohibition of setam yeinam is comprised of two elements, mishum benoteihem and a concern about yein nesekh. The objective of the prohibition was to establish a social barrier between Jew and Gentile, but when the Sages came to set the parameters of the prohibition, they took into consideration the distant possibility that the wine may have been used in idol worship. Were they solely concerned about the possibility of yein nesekh, the Sages would not have forbidden setam yeinam, for, indeed, the likelihood is very small. However, once they already forbade the wine as a safeguard against intermarriage, they also forbade the derivation of benefit from the wine, lest it be yein nesekh. Therefore, in a case where there is no concern whatsoever that the wine had been used in idol worship (e.g., the wine of a ger toshav ["resident alien"] who does not worship idols), most Rishonim maintain that one is forbidden to drink the wine, but deriving benefit from it is permitted.

Why did the Sages forbid the wine of a Jew that had been touched by a non-Jew? It would seem that regarding such wine there is no concern about intimacy (for the wine does not belong to the non-Jew), but only a concern about yein nesekh. If this is true, then according to what we have explained above, why did Chazal forbid such wine? It may be suggested that once they considered the possibility of yein nesekh with respect to setam yeinam, they thought it right to consider that possibility also with respect to the wine of a Jew that had been touched by a non-Jew, and therefore they forbade it. Alternatively, it may be proposed that even regarding wine touched by a non-Jew, there is concern about excessive intimacy, and so Chazal forbade such wine as a safeguard against intermarriage.

The practical difference between these two understandings is clear: If wine touched by a non-Jew is forbidden because of the concern that it had been used in idol worship, it should not be forbidden if the non-Jew is not an idolater. If, however, the concern is intimacy, it should be forbidden even under such circumstances.

COOKED WINE

The Gemara in Avoda Zara 30a states explicitly that "cooked wine is not subject to the prohibition of yein nesekh." The posekim understood that the Gemara is not dealing here with true yein nesekh, but rather with the wine of a Jew that had been touched by a non-Jew. Fundamentally speaking, it may have been possible to understand that even with respect to cooked wine, there exists concern about intimacy (though there is no concern about idolatry), and so it too should have been forbidden. The posekim, however, did not understand the matter in this fashion. They ruled that cooked wine that was touched by a non-Jew is not subject to any prohibition whatsoever. Indeed, this is what follows from the following story brought there in the Gemara:

--Shemuel and Ablat were sitting together when cooked wine was brought up for them, and [the latter] withdrew his hand. Shemuel said to him: Surely they said cooked wine is not subject to the prohibition of yein neseskh!

Rashi explains:

"Surely they said, etc." – It follows from here that it is permissible even for drinking.

What is the rationale for allowing cooked wine? Of course, this question depends upon the previous question – why did Chazal forbid the wine of a Jew that had been touched by a non-Jew. If the prohibition is based on a concern about idol worship, it is clear that this does not apply to cooked wine, which cannot be used for libation, and therefore cooked wine cannot be included in the prohibition. On the other hand, if Chazal forbade the wine of a Jew that had been touched by a non-Jew because of a concern regarding intimacy, we must try to explain why this concern does not apply to cooked wine. The Rosh struggles with this question:

The matter is puzzling, since they forbade the wine [of non-Jews] because of their daughters – just because they boiled [the wine], the decree should not apply? And if because it is unfit for libation, surely diluted wine is also unfit for libation!

In effect, the Rosh raises two objections:

1. If the prohibition is based on a concern about unnecessary intimacy[1] – why is cooked wine permitted?
2. If the prohibition is based on a concern about idol worship – why is cooked wine permitted, while diluted wine (which is also unfit for libation) is forbidden?

The Rosh offers one answer to the two questions:

It may be because cooked wine is not that common, and regarding that which is not common, [the Sages] did not issue a decree.

Fundamentally speaking, then, even cooked wine should have been included in the prohibition, but Chazal did not forbid it, because it is not a very common phenomenon.

According to the Rosh, the concerns about idol worship and promoting intimacy do not apply to cooked wine. Thus, just as the Gemara permitted the cooked wine of a Jew that had been touched by a non-Jew, so too we can permit the cooked wine of a non-Jew, for neither of the two concerns applies.

The Meiri suggests a different explanation: Cooked wine was not included in the prohibition of setam yeinam because the cooking changes the taste of the wine. A fourth explanation is brought by the Rambam, in Hilkhot Ma'akhalot Asurot 11:9:

--Only such wine as is fit to be poured out upon the altar may be considered libation wine for idols. For this reason, when the Sages enacted the decree prohibiting setam yeinam, or any wine touched by a heathen and thereby rendered forbidden for benefit, the decree was confined to wine fit for libation. Therefore, the cooked wine of a Jew that was touched by a heathen is not forbidden, and one may drink it even from the same cup with the heathen. Wine mixed with water, however, and wine which has begun to ferment but is still potable, is prohibited if touched by a heathen.

It is clear from the Rambam as well that cooked wine was never included in the prohibition, and so the prohibition does not apply even in the case of cooked wine belonging to a non-Jew.

The Shulchan Arukh (Yore De'a 123:3) writes as follows:

Cooked wine belonging to us [i.e., a Jew] that was touched by a non-Jew is permitted.

The wording of the Shulchan Arukh implies that cooked wine belonging to a non-Jew is forbidden.

THE DEFINITION OF "COOKED WINE"

What is defined as "cooked wine"? The Ramban in Avoda Zara says:

Regarding cooked wine, my teachers did not explain to me how much it must be cooked. I have found, however, that the Ra'avad writes as follows: Rabbenu Hai, of blessed memory, said: Thus the early Geonim inferred: Once [the wine] boils, it is considered cooked, and it is not subject to the prohibitions of gilui or yein nesekh. We shall accept the tradition. However, according to what they said in the Yerushalmi here and in tractate Terumot, that he reduces its measure, it would seem to me that when it loses something of its volume on the fire, it is considered cooked wine and [therefore] not subject to [the prohibition of] yein nesekh.

The Ramban opens with the view of the Ra'avad that "once [the wine] boils, it is considered cooked," and then he brings a different definition (based on the definition of cooking with respect to teruma) – cooking that causes the wine to lose of its volume.[2] The Ran cites the Ramban, and then argues that the two measures are actually one and the same:

It is possible that the two are one, for it is by boiling that it loses of its volume.

The Rosh proposes a third measure:

Cooked wine – after it boils, it is called cooked, for in chapter Kira they argue whether we say "its warming is its cooking." But if it is boiled, it is regarded as cooked according to all opinions. And so writes the Ra'avad in the name of the Geonim.

The Gemara cited by the Rosh is found in tractate Shabbat. There the Gemara discusses the law applying in a case where a person warms up wine or oil without bringing it to the degree of heat that the hand withdraws from it upon contact (yad soledet bo). The Rosh implies that warming wine is not considered cooking with respect to yein nesekh, but heating it up to the point that the hand withdraws from it is considered cooking. If so, the Rosh disagrees with the Ramban in his interpretation of the Ra'avad: As opposed to the Ramban, who understands that the Ra'avad is dealing with wine that reached the boiling point, the Rosh understands that he is referring to wine that reached the temperature at which the hand withdraws from the scald.

The Shulchan Arukh rules in accordance with the Ra'avad:

When is it called "cooked"? From when it boils on the fire.

The Shulchan Arukh gives no indication whether he rules in accordance with the Ramban or in accordance with the Rosh. The Acharonim disagree about the matter. The Shakh comments in line with the Ran:

That is, that it should lose of its volume by way of the boiling. Thus write the Rashba and the Ran.

Of course, this question has an important ramification regarding wine that underwent pasteurization. The pasteurization process is performed at 70-80 degrees centigrade – which is below the boiling point, but above the point at which the hand withdraws itself. If wine is regarded as "cooked" only after it reaches the boiling point, then pasteurized wine should not be considered "cooked." If, however, reaching the point at which the hand withdraws itself suffices, it stands to reason that pasteurized wine should indeed be classified as cooked.

The definition of "cooked wine" may depend on how we understand the concept of "cooked wine." This expression may describe the current characteristics of the wine, but it may also describe the process that the wine underwent in the past. According to the first understanding, it stands to reason that the qualities of the wine change and it turns into "cooked wine" only if it reaches the boiling point. On the other hand, according to the second understanding, it may very well be that even wine that reached a temperature that causes the hand to withdraw should be considered "cooked wine," because it underwent a process of cooking, even though its inner qualities have not changed.

THE ALLOWANCE OF COOKED WINE TODAY

Is the allowance of cooked wine valid in today's circumstances, when the pasteurization process is so widespread? As we have seen, the allowance in the case of cooked wine is based on the infrequency of cooking wine and on the lowered quality of cooked wine. Today, cooked wine is common and widespread, and according to most people, its taste is in no way inferior to that of uncooked wine.

According to the Rosh, it seems that even today, cooked wine that had been touched by a non-Jew, should be permitted, because from the very outset such wine had never been included in the prohibition.[3] According to the Meiri, on the other hand, the change in taste is part of the definition of cooking, and so it would appear that wine that retains its taste even after it is cooked is included in the prohibition, and so, if it was touched by a non-Jew, one should be forbidden to derive benefit from it.

R. Shlomo Zalman Auerbach inclined to rule that since Chazal never issued a decree regarding cooked wine that was not common in their day, it should be permitted even today, even though today it is very common. R. Auerbach, himself, however maintains that Chazal removed cooked wine from the prohibition because the cooking changes the taste. Thus, pasteurized wine – the taste of which is the same as that of the original wine – should not be included in the allowance of cooked wine.

In any event, most Rishonim appear to maintain that "cooked wine" is wine that came to a complete boil, and this does not happen during the pasteurization process. Thus, it is difficult to rely on the allowance of cooked wine to permit pasteurized wine that had been touched by a non-Jew.

In conclusion, let us note that while one should be stringent regarding non-Jewish contact with pasteurized wine, there are times when one may consider two additional leniencies and come up with a heter:

First, the Tosafot Rid rules that a non-Jew who is not an idolater does not forbid the wine that he touches. This allowance is especially relevant with respect to Moslems and perhaps also Christians. The Tosafot Rid himself, however, writes that one should not rely on this leniency in actual practice. So too the Shulchan Arukh (124:6) explicitly forbids the wine of a non-Jew who is not an idolater:

A non-Jew who does not worship idols – one is forbidden to drink his wine, but one may derive benefit from it. Our wine that is touched by them is governed by the same laws as their own wine, namely, one is forbidden to drink it.

It is, therefore, difficult to rely on this leniency.

A second leniency is based on the fact that according to most Rishonim, fundamentally speaking, the touching of a non-Jew forbids wine only when he touches the wine itself, either with his hand or with an instrument (a stick, or the like). Thus, according to most Rishonim, it is permissible to drink from a bottle of wine that was touched by a non-Jew, provided that the non-Jew did not touch the wine itself. The Rambam rules stringently that the wine is forbidden even if the non-Jew merely shook the bottle. This, however, applies only to an open bottle, but not to a sealed bottle. The Ran is in doubt whether, according to the Rambam, this applies to any sealed bottle, or only to an opaque bottle, through which the non-Jew cannot see the wine.

Lekhatchila

, one should not rely on this allowance, but together with the other factors mentioned above, there is room for leniency.

It should be noted that if the non-Jew pours the wine, he forbids it because of his direct action, even if he does not actually touch the wine.

FOOTNOTES:

[1] R. Akiva Eiger raises an objection (Yore De'a 123): "As for the Rosh's question, I do not understand from where the Rosh knows that the prohibition applying to wine touched by a non-Jew is 'because of their daughters.'"

[2] This strange measure requires explanation: What is the law regarding wine that remained at a high temperature for only a short period of time, so that the heat did not have time to reduce the wine's volume?

[3] There is room here to discuss the general question regarding decrees the reasons for which no longer apply, and especially, a decree from which Chazal excluded certain elements for various reasons, and these reasons are no longer relevant today.

(Translated by David Strauss)