– Author: Rav Doron Podlashuk

Although the Sages made many decrees prohibiting different types of food and drink, each prohibition has, to some extent, a unique reason and application. Perhaps the most unique of these decrees is the prohibition of drinking or deriving benefit from wine of a gentile.

Background to the Rabbinic Decree

If a gentile used wine as a libation in an idolatrous service, Torah law prohibits one from drinking or deriving benefit from said wine. This is commonly known as “yayin nesech,” and has its source in Parshat Ha’azinu.[1] The Rabbis further decreed[2] that any wine owned (or even touched in certain cases) by a gentile is also prohibited in this same manner. However, when it comes to the question of who made the rabbinic decree and why – the answer becomes a lot more ambiguous.

The Rishonim point out that there is a seeming contradiction in the discussion of the Gemara about the reasoning behind the extension of the prohibition on the wine of a gentile. The Gemara[3] first implies that the reason relates to yayin nesech, meaning that since we are concerned that any wine owned by a gentile might have been used in some form or other for idolatry, we prohibit it. Yet only a few folio later, the Gemara[4] states explicitly that the reason for the decree was because of “benoteihem” – their daughters – meaning that the Rabbis were concerned that drinking together with gentiles would lead to intermingling, licentious behavior and ultimately even intermarriage. Hence, they prohibited gentile wine circumventing intermingling. Which reason is the primary motivating factor? Is gentile wine prohibited due to the concern of intermarriage or are we concerned that this wine was used for idolatry? Further, if the reason is indeed a concern for intermarriage, why is it not sufficient to only prohibit drinking the wine, in a similar fashion to bishul akum? Why did the Sages also prohibit deriving benefit from it?

There are three different approaches in the Rishonim to answer this apparent contradiction:

  1. Rashba: Two distinct decrees instituted at different times for different reasons

The Rashba[5] opines that there are actually two distinct decrees, instituted at different times by two different Batei Din. The first Beit Din (Pinchas at the time of the war with Midyan in the desert[6]) decreed that it was prohibited to drink wine of a gentile due to intermarriage. A few hundred years later in the times of Hillel and Shammai, the Sages decreed that it was even prohibited to derive benefit from this wine due to the concern of idolatry which had become more rampant.

  1. Ritva: The Rabbis Model their Decrees on Torah laws

The Ritva[7] holds that there was only one decree, and that the reason for the decree was unequivocally because of intermarriage. As such it should have been enough to only prohibit drinking the wine while still permitting one to derive benefit from it.  The Ritva explains however, that there is a difference between the siba (reason) for the decree, and the geder (model) of the decree. The siba is due to intermarriage. However, when the Rabbis made the decree, they modeled it on the Torah violation of yayin nesech, which includes a prohibition both to drink and to derive benefit from it. This follows the principle that when the Sages make a decree, it is “k’ein de’oraita takun” – instituted in a similar manner to the Torah prohibition. Accordingly, although there was no real concern that this wine was used for idolatry, the Rabbis decreed that we treat it as if it were used for idolatry, hence the prohibition to derive benefit from such wine.  This seems to be the opinion of Tosafot[8] as well.

  1. Ran: One Decree but Two Different Levels of Prohibition

The Ran also writes that there was historically only one decree. He explains that there are two different components to the decree. The primary reason the Sages made the decree was due to intermarriage. However, they were concerned that if they only prohibited it to be drunk, people would get confused and think that even wine that was used for idolatry would only be prohibited to drink and not to derive benefit from. In order that people not get confused, the Sages decreed that it was prohibited to derive benefit from all wine.

Practical Difference Between the Reasons

An interesting test case for these different opinions is a practical ramification suggested in the name of Rashi. Rashi[9] opines that the prohibition to derive benefit from wine of a gentile no longer applied in his time. Already in Rashi’s era, use of wine for idolatry was not commonplace.[10] Hence, although the prohibition of drinking still applied due to intermarriage, there is no prohibition of deriving benefit (which was rooted in the concern of idolatry).

The Darkei Moshe[11] explains that whether we accept the opinion of Rashi is dependent on which approach to the nature of the decree we deem as correct. According to both the Rashba and the Ran, the original decree was expanded (either by a different beit din altogether according to the Rashba, or by the same beit din, but as a secondary reason according to the Ran) due to the real concern of idolatry. Hence when this concern no longer applies, the added prohibition of deriving benefit from such wine might fall away.[12] However, if we accept the opinion of  the Ritva, that there was never a real concern that this might be wine of idolatry and that the Sages modelled their decree based on the Torah prohibition of yayin nesech, the prohibition of deriving benefit from such wine would still apply even in generations where there is no concern of idolatry.

The Shulchan Aruch[13] takes the approach that it is prohibited to derive benefit from the wine of a gentile even in today’s time. The Rema, in three different places,[14] accepts the opinion of Rashi that since there is no concern for idolatry, the prohibition to derive benefit is no longer applicable in all its stringency.[15]

How Does This Relate to Non-religious Jews?

The Shulchan Aruch rules that a Jew who is an apostate or who desecrates Shabbat in public is considered like a gentile. Although the sugya in the Talmud[16] which is the source of this law is dealing with the level of trust we can have in such a person regarding the laws of shechita, the Rishonim understood this to mean that such a person is considered a gentile regarding other areas of halacha as well.[17] Hence, the Shulchan Aruch rules that if a Jew who desecrates Shabbat in public touches one’s wine, it is prohibited as wine of a gentile.[18]

Is There any Room to be Lenient?

Since the enlightenment, when many Jews became non-observant, the poskim have grappled with this topic. Does this dictate of the Shulchan Aruch still apply in our generation?

A priori, there are two approaches that one could follow to state that wine touched by a non-religious Jew might still be permitted to drink. One approach argues that the status of the irreligious Jew today is different than at the time of the Talmud and even that of the Shulchan Aruch. Another approach is that even if we view their status as no different from Talmudic times, regarding the decree of stam yeinam, there might be a specific leniency.

A Specific Leniency Regarding Stam Yeinam

As we learnt previously, all the Rishonim agree that the primary reason for the decree was out of concern for intermarriage. This reason doesn’t apply to non-religious Jews, as it is perfectly permissible to marry such a person’s daughter. Regarding the second reason – a concern for idolatry – an irreligious Jew is not assumed to be practicing idolatry. Hence this specific decree should not apply even if one generally accepts the view that such a person is similar to a gentile.

The Lo Plug approach

The Rashba,[19] writing before the period of the enlightenment, states explicitly that an apostate’s wine is prohibited, and this is codified by the Shulchan Aruch. Rav Tzvi Pesach Frank[20] explains that although the specific reason for this decree might not apply to an irreligious Jew, once the Sages defined such a person as a gentile, we view him as such even if the specific reason doesn’t apply in this case. This is based on the principle of lo plug.

However the argument of “lo plug” regarding these decrees seems to be a machloket Acharonim. Regarding the decree of pat akum, the Pitchei Teshuva[21] quotes the Tiferet L’moshe that the prohibition does not apply to an irreligious Jew as there is no concern of intermarriage. The Pitchei Teshuva[22] further argues that it might not apply to the decree of bishul akum for the same reason.  These Acharonim do not apply the principle of lo plug in relation to a non-religious Jew, but look at the reason behind the decree.

One could argue that even so, perhaps the decree regarding wine is different and even if the reasons do not apply, we need to be stringent. However, the Rema[23] in a very novel responsa is “melamed zechut” on the community of Reines who used to drink gentile wine. He explains that since the problem of idolatry no longer applies, the decree of stam yeinam is now similar to bishul akum and pat akum. Since we find that there was a special leniency regarding pat akum (such as bakers’ bread) since it was chayei nefesh, the community of Reines felt this was true of wine as well. Although the Rema wrote that this was halachically wrong and it was prohibited to drink the wine, he nevertheless seems to accept the comparison of stam yeinam to the other decrees in our era. If we accept the view that bishul akum does not apply to an irreligious Jew,[24] perhaps this would similarly apply to stam yeinam as well.

The Chazon Ish[25] raises just such a possibility and points out that the Rambam never mentioned anywhere that an apostate’s wine is prohibited. Furthermore, he points out that the Rashba gave no source for his ruling applying the decree of stam yeinam to an apostate. Admittedly, the Chazon Ish was not ruling against the Rashba and Shulchan Aruch; rather he was simply pointing out a difficulty in their stance. Ultimately, he does seem to have accepted their psak. Even Rav Ovadia Yosef[26] and other poskim who are lenient regarding an irreligious Jew in other area did not rely on this approach concerning their touching wine.[27] Rather they focused on the second approach – namely that the status of irreligious Jews today is different to what it was in Talmudic times.

A More General Approach:  Irreligious Jews Today have a Different Status

There are a few main reasons given by the poskim for being lenient.

Binyan Tzion: Jews who Desecrate Shabbat Do not Necessarily Deny God

Rav Yaakov Etlinger, a leading rabbinic authority in Germany in the 18th century, in his responsa Binyan Tzion,[28] described a new phenomenon where many Jews became non-observant and desecrated Shabbat in public. Although such people should be deemed idolaters according to the classic sources, Rav Etlinger pointed out that the reason a mechalel Shabbat is viewed so harshly is due to the fact that one who desecrates Shabbat denies the creation of the world and the Creator. He states that many people in his generation would still come to shul on Friday night and say kiddush (which testifies that Hashem created the world and rested on Shabbat) before going out and desecrating Shabbat on biblical and rabbinic levels. He argues that although such a person is grossly violating halacha, he clearly does not deny G-d or His creating of the world by his recital of kiddush. Hence, Rav Etlinger suggests that such a person would not have the halachic status of a gentile.

Rav Soloveitchik[29] contends that Rav Etlinger’s argument only applies according to Rashi’s[30] understanding of the Sages opinion towards a mechalel Shabbat. However, he writes that a close reading of the Rambam reveals that it has nothing to do with denying God as the creator; rather it is the stringency of the laws of Shabbat themselves that create this category. Hence, even if one said kiddush and recognized God as creator, a Jew desecrating Shabbat in public would still be viewed by the Rambam as an idolater. Practically, the Minchat Elazar[31] and many other Acharonim did not accept the novelty of Rav Etlinger.

Rav Yehuda  Assad: The Need for Testimony in a Beit Din

In his responsa Yehuda Ya’aleh,[32] the Mahari Assad suggests that someone can only be designated as an idolater if witnesses formally testify in front of a Beit Din that such a person violates Shabbat in public. Rav Assad holds that without such a condition, one cannot disqualify a person’s wine. However, the Mahari Assad himself seems to temper this leniency by describing the person he is referring to as at least keeping some of the other mitzvot. Rabbi Akiva Eiger[33] does not seem to limit this condition and adds that in order to be considered a person who desecrates Shabbat in public, two kosher witnesses have to testify that he desecrated Shabbat in front of ten Jews who themselves are careful with the mitzvot; if they desecrated in front of their friends who themselves desecrate Shabbat, it would not qualify. The Mahari Assad adds a secondary reason, namely that it is important not to push these people further away from Judaism.  By not drinking their wine, they may become insulted and be distanced from religion altogether. This condition was heavily debated among the Acharonim and not necessarily accepted as halacha.

Tinok Shenishba

Perhaps the most well-known reason to view irreligious Jews of today in a different light is based on the words of the Rambam in Hilchot Mamrim:[34]

When do these things apply? Regarding a person who blasphemies the Oral Torah by his thoughts and own opinion, and follows his mind and haughty heart. However the children of those who have erred and their children, who were pushed away by their forefathers and were born into heresy and were brought up on it, they are considered like a child who was kidnapped and was brought up amongst the gentiles with their religion, and it is not his fault. Even though he hears later that he is Jewish and he sees the Jews and their religion, he is considered not at fault for they educated him in these mistaken ideas.

Similar to the Rambam’s generation, one could argue that Jews who grew up in non-observant homes and received a secular education have the status of a tinok shenishba. However, the Radbaz,[35] commenting on the Rambam, holds that the Rambam’s opinion is only true if they have not been exposed to Judaism and encouraged to repent. He writes that the Jews in his community who see religious people and are continually told to repent are not considered part of this halachic category.

Many Acharonim accepted the view of the Radbaz.[36] However, the Chazon Ish, while in principle accepting the opinion of the Radbaz, added two important qualifications. He stated:[37]

“After they have tried to convince him and he continues to sin and refuses to repent, he is considered an apostate. Yet, the correct measure one has to try with him is dependent on how the judges view the issue as it will be known to them b’ruach kodsham in deciding his status”.

In essence, the Chazon Ish holds that a private individual cannot categorically rule that an irreligious person has the status of a gentile; rather, this has to be done in a Beit Din. Furthermore, he states that when the Sages warned us to punish these apostates, this was specifically in a time of open miracles and prophecy. The Chazon Ish concludes there:[38]It is upon us to make them return with a great amount of love and show them the light of Torah according to our capability.”

However, the Chut HaShani[39] explains that the Chazon Ish only intended these limitations to apply to punishing such Jews and treating them like gentiles in terms of charging them interest, hating them, and other extreme forms of ostracization, but did not intend to permit their wine. The Chazon Ish held that we do not have the right to exclude these Jews from Klal Yisrael and we have to show them love (this is also the opinion of the Chafetz Chaim brought at the end of the Sefer Ahavat Chesed, where he quotes a teshuva of the Mahari Mulin that since we do not know how to rebuke today, it is as if the sinners have not been rebuked, and we are obligated to love them). Despite this, their wine is still considered the wine of a gentile.

On the other hand, Rav Ovadia Yosef[40] rejects the opinion of the Radbaz outright and claims that historically the Karaites in the Rambam’s generation lived in the adjacent neighborhood to the Jews and clearly knew all the practices of the Jews and yet the Rambam still defined them as tinokot shenishbu. Rav Ovadia concludes that Jews in Israel who grew up in secular families, though they know about Shabbat and other halachot, still fit into the description of the Rambam as a tinok shenishba[41]. Rav Ovadia writes that there is room to be lenient and drink the wine of a person who desecrates Shabbat in public, relying on the opinion of the Rambam, the Mahari Assad, and the Binyan Tzion.

In conclusion, it is worth remembering the words of Rav Yochanan in the Talmud[42] who holds that the reason Am Yisrael were sent into slavery for two hundred and ten years was because Avraham Avinu gave the people of Sodom back to their King (after he had freed them) and did not try and save the women and children by bringing them under the wings of the Shechina. If that was the punishment regarding non-Jews, how much more so should we heed the words of the Chazon Ish (notwithstanding his opinion regarding the specific issue of their wine), and show them “great love and show them the light of Torah according to our capability.”

[1] Devarim 30:38

[2] See the following two footnotes.

[3] Masechet Avoda Zara 29b

[4] Masechet Avoda Zara 36a

[5] Rashba, Torat HaBayit Ha’aroch 5:1

[6] Pirkei D’Rabbi Eliezer, Ch. 46

[7] Ritva, Avoda Zara 29b, s.v. yayin minalan

[8] Tosafot, Masechet Avoda Zara

[9] Rashi, quoted by the Rashbam, as brought by the Tur in siman 123.

[10] Although the Christians use wine in their mass service, the Bach explains that this is not considered yayin nesech as it is drunk instead being used as a libation.

[11] Darkei Moshe Hakatzar 123

[12] Although the Gemara in Masechet Beitza 5a teaches the principle of “batel ta’am lo batel gezeira” “even if the reason for the decree is no longer applicable the decree still stands”, the Darkei Moshe explains that Rashi would argue that the original decree was only instituted in places where there was a concern for Idolatry. Although the Rashba and Ran both hold that the decree was made out of concern for idolatry, they might not agree with Rashi regarding the second point – that the decree was never instituted in a place where there was no concern for idolatry. Hence, they still might practically forbid deriving benefit from wine due to the principle of batel ta’am lo batel gezeira.

[13] Shulchan Aruch, Y.D. 123:1

[14] See Rema 123:1, 145:3, and 128:4.

[15] The Rema permits deriving benefit where there is a loss involved. However, he states that it is good to be stringent not to buy gentile wine lechatchila in order to sell it.

[16] Masechet Chullin 4b

[17] Based on the sugya in Avoda Zara regarding a min and apikorus.

[18] Shulchan Aruch 124:8; see Bi’ur Hagra there.

[19] Responsa of the Rashba 7:179

[20] Responsa Har Tzvi, siman 105

[21] Pitchei Teshuva 112:1

[22] Pitchei Teshuva 113:1

[23] Responsa of the Rema siman 124

[24] Cf. the Pri Chadash, who argues with the Tiferet L’moshe and prohibits bishul of an apostate as well.

[25] Chazon Ish, Y.D. 2:23

[26] Yabia Omer, Yoreh De’ah 1:11

[27] See the beginning of the Responsa of Binyan Tzion Chadashot, siman 23.

[28] Responsa Binyan Tzion 23

[29] Cited by Rav Hershel Schachter in Nefesh HaRav.

[30] Rashi to Masechet Chulin 5a, s.v. ela lav hachi ka’amar

[31] Responsa Minchat Elazar 1:74

[32] Responsa Yehuda Ya’aleh, Y.D. 50, quoted in Yabia Omer, loc cit.

[33] Responsa Rabbi Akiva Eiger, quoted in Yabia Omer, loc cit.

[34] Rambam, Hilchot Mamrim 3:3

[35] Radbaz, Hilchot Mamrim 3:3

[36] See for example, Shevet Halevi 9:198

[37] Chazon Ish, Yoreh De’ah 1:6

[38] Chazon Ish, Yoreh Deah 2:16

[39] Chut HaShani, siman 40

[40] Yabia Omer, loc cit.

[41] See Yabia Omer where he lists a number of Acharonim, who hold that secular Jews today are considered as a tinok shenishba, such as the Melamed L’hoil, Sho’el Umeishiv, and Avnei Tzedek.

[42] Masechet Nedarim 32a

– Length: