פירוש על עבודה זרה 143:22

The baraita does not mean to say that he is not obligated to make restitution. He has not really taken possession of anything such that he would not have to return it. Rather it means to say that the laws of restitution do not apply to him because he never really takes possession of the item.

According to the continuation of the baraita, if another thief comes along and steals from the first thief, he too is killed. Now this thief did not cause any distress to a Jew. The only reason to execute him is that he has stolen property. In order to steal the property, we have to assume that meshikhah acquires for a non-Jew. This is conclusive proof against R. Ashi.

Abaye uses the Mishnah that we have been learning to prove that once the price has been set the purchaser has acquired the goods. As long as the Jew sets the price before he measures it out, the non-Jew has acquired the wine and become obligated to pay before the wine becomes nesekh.

Joseph would argue that when it comes to yayin nesekh, the rule is more stringent. Generally speaking simply a promise to sell is sufficient for the buyer to acquire the goods. But with yayin nesekh a price must be set.

In the first half of this baraita, the buyer brings the worker’s carrying the produce into his home. This does not count as “meshikhah” and therefore he does not acquire the produce, even if he sets a price.
However, if he unloads the produce, then he has performed “meshikhah.” In this case, if they set the price then neither can retract. This accords with Abaye. Setting the price is irrelevant if the buyer has not taken possession of the goods.

According to R. Kahana, since they set a price, the first person acquired the land and the sale to the second is not valid. R. Ya’akov looks at this case in a different way—the higher price may have “forced” the owner to sell the land. Had the second person not offered the extra twenty zuz, perhaps he would not have sold it at all. Therefore, the second sale is valid. And this is the halakhah. Until the money is transferred, the sale is not final.

If the seller says that he will sell the article after it is “evaluated” by three, then he has set them up as a court and he must accept the decision of even two. But if he says that the three will “say” the price, then they are just three people and all three must agree for the price to be final.

A court consists of three, not four. So in either case, the price must be set by all four.

The buyer has a right to reject the evaluation based on the grounds that the second group is more qualified.

Huna son of R. Joshua points out that there is no objective way of knowing if the second group would be more qualified than the first. Therefore, the evaluation of the first group stands. And the halakhah follows his opinion.

In the first section a Jew pours his wine into the container of a non-Jew using a funnel. The liquid that remains in the funnel when the Jew pours the wine into the non-Jew’s flask has the same status as the wine in the non-Jew’s flask itself. The fact that the wine in the flask is yen nesekh, means that the wine in the funnel is as well. This is because the funnel goes into the non-Jew’s container and may “take back” some of the yen nesekh. If even a drop of wine should remain in the funnel and the Jew should then pour more wine into the funnel and give it to a Jew, all of the wine has become contaminated as yen nesekh and it is all forbidden.
In contrast, the second section teaches a different principle from the previous section. When one pours from one vessel into another, and the poured liquid never touches both vessels at the same time, there is no contamination from the lower vessel into the higher vessel. While the bottom liquid might become itself contaminated (if it is poured into a non-Jew’s flask), the top liquid remains permitted.

The above mishnah was referring to the laws of purity. R. Huna says that the law is more stringent when it comes to yayin nesekh. Downward flow does cause the two bodies to be connected. Note that this would have drastic consequences for Jews. If a Jew pours wine into a cup held by a gentile, the Jew’s wine becomes yayin nesekh!

R. Nahman asks R. Huna for the source of his ruling and notes that one cannot deduce the ruling from the mishnah in Toharot. While we could deduce R. Huna’s ruling from the first section, if the same type of deduction was applied to the second section, it would lead to an incorrect ruling (certainly a standing body of liquid would form a connecting link with yayin nesekh). Thus this mishnah cannot be R. Huna’s source.

The Talmud now tries to prove that it does serve as a connecting link from the first half of the mishnah. How does the wine in the funnel become yayin nesekh—through downward flow, it is suggested. The bottom wine which is yayin nesekh flows up into the funnel and contaminates it.