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Shabbat Parashat Vayigash 5776

P'ninat Mishpat: Paying for Non-Kosher Wine

(based on Shut Chatam Sofer, Choshen Mishpat 180)

Case: Reuven sold supposedly kosher wine on credit to Shimon, who had a retail business. Shimon sold it to several customers. Later on, it became clear based on witnesses and Reuven’s admission that it was stam yeinam (wine handled by non-Jews, which is Rabbinically forbidden). To what extent does Shimon have to pay Reuven for the wine that Shimon already sold? What should be the arrangement be between Shimon and the people whom he accidentally caused to drink non-kosher wine?


Ruling: The gemara (Bechorot 37a) says that if someone sells to another forbidden food and the buyer ate it, the seller has to return the sales money even though he gets nothing back. The Rambam (Mechira 16:14) says that if the food eaten was forbidden only Rabbinically, then the buyer is not entitled to a refund. 

There are two main reasons given for why one gets a full refund for the non-kosher food he ate and ostensibly benefited from. The S’ma (234:4) says that the disgust of having eaten non-kosher food cancels out any physical benefit. The Shach (Yoreh Deah 119:27) says that when the Rabbis forbade the food, they did it in terms of eating it, not in terms of financial repercussions. The Shach’s idea is the best way to explain the Rambam, considering that the Rambam writes famously that one who violates a Rabbinic law is also violating a Torah law of not straying from the words of the Rabbis. The point is that the Rabbis made an exception regarding cases of doubt; we can say that monetary ramifications are another exception.

However, we see otherwise from a comparison to the halacha of a man who unintentionally married a woman who was forbidden to him. She receives the additions to the ketuba that her husband agreed to because we assume that since he did not look into her status, he did not care about the prohibition. In contrast, one does care not to have treif meat. This shows that the S’ma is correct that the monetary ramifications are a function of the degree to which we assume one is upset by the specific prohibition.

Regarding the question about the distinction between Torah and Rabbinic prohibitions, considering the Rambam’s approach, the Maggid Mishneh correctly points out that it is permitted to be involved in commerce of Rabbinic prohibitions. Commerce is forbidden for Torah prohibitions due to the possibility that he will come to eat from them. As it is permitted for Rabbinic prohibitions, apparently the Rabbis did not view such unintentional prohibitions as seriously. For the same reason, if one did eat a Rabbinic prohibition he received from the seller, he cannot say that the eating was not beneficial. For that reason, one has to pay at least for the price of non-kosher meat, and when he already paid the full price, he does not get it back.

In our case, certainly that which was not drunk yet can be returned as mekach ta’ut. Therefore, when Shimon’s buyers bought it, the wine was actually still Reuven’s. In fact, the buyers did not acquire the wine until they drank it, and fundamentally they have to pay Reuven only the price of non-kosher wine. In practice, Reuven can demand of Shimon to either return his wine or give him the price of non-kosher wine, and Shimon can collect that money from his buyers.
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