A first approach to Siman 128: the 5 seifim of the Mehaber and the glosses of the Rama, Hebrew text and fluent English translation. The preceding siman asked who is believed to say that wine has become forbidden; this one returns to the wine itself and asks a far more material question: what happens when nobody was watching? A non-Jew was left alone with the wine, or was found beside it — and the whole siman turns on a single Aramaic word, מִירְתַּת, “he is afraid of being caught”.
Subject: Wine left unwatched — ייחוד, הפקדה, מירתת, נתפס כגנב Source: שולחן ערוך יורה דעה סימן קכ״ח
Compiled by: הרב יוסף חיים סממה DAAT · daattorah.com
📑 Plan of study
1.The text of the Mehaber: the 5 seifim, by thematic groups
2.Context: where the principle of מִירְתַּת comes from
3.The key concepts: ייחוד, הפקדה, מירתת, נתפס כגנב, אפותיקי, מתעסק…
4.The summary table: when the wine stays permitted, and on what footing
5.The Taz and the Shach: five key passages
6.The glosses of the Rama (הגה): four interventions across four seifim
7.Practical cases today: the delivery driver, the pledged stock, the cold room
8.Synthesis and comprehension questions
1. The text of the Mehaber — the 5 seifim
Siman 128 leaves behind the question of testimony that occupied Siman 127 and returns to the wine. But it no longer asks what renders wine forbidden — simanim 123 to 126 said that. It asks: what must be presumed when nobody saw anything? A non-Jew was left alone with the wine, or was found there, standing among the barrels. Nobody saw him touch; nobody can swear that he did not. The siman is therefore entirely a siman of presumptions, and it has only one: a man who fears being caught does not touch. The Aramaic word for that fear, מִירְתַּת, does not appear even once in the Mehaber’s text; and yet it governs all five seifim.
The division is clean. Seif 1 deals with wine that is left deliberately — two acts that must not be confused, yiḥud (leaving him alone with it, on our premises, briefly) and hafkada (depositing it at his place, for a long stretch). Seifim 2 to 5 deal with the non-Jew who is found where he had no business being, and examine, one after another, what takes his fear away and what restores it: a loan secured on the wine, a door bolted from within, holes in that door, the fear of the city’s judges. The Rama intervenes four times, on four seifim; his two decisive interventions concern what may be attributed to a piece of evidence (seif 2) and what had changed in his own day (seif 4).
Group A — The wine one leaves deliberately (seif 1)
Seif 1 — Yiḥud and hafkada: two acts, two regimes
דין מקום שיש בו יין ונתיחד עובד כוכבים שמה. ובו ה׳ סעיפים: עובד כוכבים שנתייחד עם היין אפילו ברשותנו אפילו שעה מועטת אסור בהנאה אבל מי שנודע לנו שאינו עובד עבודת כוכבים מותר לייחד יין אצלו ברשותנו לזמן מועט כגון כדי שילך כדי מיל או יותר אפילו בעיר שכולה עובדי כוכבים ואפילו הודיעו שהוא מפליג אבל אין מפקידין אצלו יין בביתו ואפילו בבתינו אסור אם הוא לזמן מרובה ואם עבר והפקיד אסור בשתיה. (עובדי כוכבים שבחוצה לארץ אע״פ שאינן עובדי עבודת כוכבים מ״מ אין מייחדים יין אצלם) (ב״י בשם הרשב״א):
Title of the siman:the law of a place in which there is wine and where a non-Jew was left alone; five seifim. — A non-Jew who was left alone with the wine, even on our premises, even for a short while — it is forbidden to derive benefit from it. But one of whom it is known to us that he does not serve idols — it is permitted to leave wine alone with him, on our premises, for a short time: for example, long enough for him to walk the distance of a mil or more, even in a city that is entirely non-Jewish, and even if he informed him that he is going far off. But one does not deposit wine with him in his house; and even in our own houses it is forbidden if it is for a long time; and if he transgressed and deposited it — it is forbidden to drink.
Gloss of the Rama:non-Jews outside the Land of Israel, although they are not idolaters, nevertheless one does not leave wine alone with them (Beit Yosef in the name of the Rashba).
Two acts that English blurs and Hebrew separates.יִחוּד — leaving him alone: the wine stays with us, the non-Jew is there unwatched, briefly. הַפְקָדָה — depositing: the wine goes to his place, and for a long time. The first is permitted with one who does not serve idols; the second is not, and not for the same reason — here the fear is not libation but substitution, that he swap our wine for his own, or let others handle it without caring. The measure of “a short time” is concrete and striking: long enough to walk a mil — roughly a kilometre, and about eighteen minutes’ walk by the most common reckoning.
And the last line closes the door the first had opened. The Mehaber permitted yiḥud with one who does not serve idols; the Rama, in the name of the Rashba, observes that the non-Jews of the lands where we live do fall into that category — and still refuses to leave wine alone with them. Note the structure: the Mehaber lays down a permission in principle, the Rama withdraws it in practice. The Shach (s.k. 4) will argue at length about what that stringency is worth after the fact, and we shall see below that he concludes the other way.
Group B — The non-Jew one finds there (seifim 2-5)
Seif 2 — The creditor, and the froth in his hand
עובד כוכבים שנמצא בבית שבו יין אם יש לו מלוה על אותו יין כגון שעשאו אפותיקי (או משכנו לו) (טור) אסור ואפילו היה היין חתום בחותם אחד אבל אם אין לו מלוה על היין אף על פי שיש לו מלוה על ישראל בעל היין והגיע זמן המלוה מותר ואפילו היה עומד בצד היין סמוך לו ממש בכדי פישוט ידים ואפי׳ אין ביין שום חותם מפני שמאחר שהוא יודע שיפסיד ישראל יינו הוא ירא ליגע (הרא״ש) ואפילו נמצא בידו קצף שרגיל לעלות על פי היין מות׳ שאנו תולי׳ לומ׳ מדופני החבית לקחו ולא מפיו: הגה אבל דברים שאינם נמצאים אלא על פי החבית אסור (טור) וכן אם מצא שהעובד כוכבים תופס הברזא בידו היין אסור ולא אמרינן דהברזא מנפשיה נפל והעובד כוכבים הגביהו (מרדכי פ׳ השוכר בשם ראבי״ה) דתלינן תמיד בדבר הרגיל:
A non-Jew who was found in a house in which there is wine:if he holds a loan secured on that very wine — for instance that it was made anapotikifor him (or pledged to him) (Tur) — it is forbidden, even if the wine was sealed with a single seal. But if he has no loan on the wine, even though he has a loan on the Jew who owns the wine and the term of the loan has fallen due — it is permitted; and even if he was standing beside the wine, right up against it, within arm’s reach, and even if the wine bears no seal at all — because, since he knows that the Jew will lose his wine, he is afraid to touch it (Rosh). And even if froth was found in his hand, of the kind that usually rises to the surface of the wine — it is permitted, for we attribute it, saying: he took it from the side of the barrel and not from its mouth.
Gloss of the Rama:but things that are found only at the mouth of the barrel — it is forbidden (Tur). And likewise if he found the non-Jew holding the spigot in his hand, the wine is forbidden; and we do not say that the spigot fell out by itself and the non-Jew picked it up (Mordechai, ch. HaSokher, in the name of Ra’avya), for we always attribute to what is usual.
The loan is what kills the fear. The whole permission of this seif rests on a very human calculation: the non-Jew knows that if he touches, the Jew loses his wine — and he does not want to cost him his wine, so he does not touch. But if he holds a loan secured on that very wine, the calculation reverses: this wine is already half his, and he has nothing left to protect. Hence the decisive precision, taken from the Gemara: it is not enough that he be a creditor of the owner; he must be a creditor of that wine. An ordinary creditor, even past the due date, costs the wine nothing — not standing within arm’s reach, not with unsealed barrels.
The froth and the spigot: the same reasoning twice, with opposite results. The Mehaber finds froth in his hand and attributes it to the side of the barrel rather than its mouth: nothing proves he touched the wine. The Rama completes the rule and turns it around: attribution never runs toward what is convenient, it always runs toward what is usual — דְּתָלִינַן תָּמִיד בְּדָבָר הָרָגִיל. If the substance found in his hand can only have come from the mouth, he touched; and if he is found with the spigot in hand, we shall not imagine that the bung fell out on its own and he politely picked it up.
Seif 3 — The bolted door, and the holes one can see through
בית שיש לישראל ועובד כוכבים יין בתוכו ונכנס העובד כוכבים וסגר הדלת אחריו במנעול מבפנים שאם בא ישראל ליכנס אינו יכול ליכנס שלא מדעת העובד כוכבים היין אסור (הרא״ש) ואם היו נקבים בדלת שישראל יכול להסתכל ולראות משם כל החביות מותרות בשתיה אפילו הן פתוחות ואם לאו את שיכול לראות דרך שם מותר והשאר אסור בהנאה אפילו חביות סתומות אם שהה כדי שיפתח ויגוף ותגוב (פירוש ויגוף ויעשה מגופה אחרת ופי׳ ותגוב וינגב וייבש) ואפילו היה ישראל דר באותו בית:
A house in which a Jew and a non-Jew both have wine, and the non-Jew entered and shut the door behind him with a bolt from within, such that if a Jew came to enter he could not enter without the non-Jew’s knowledge — the wine is forbidden (Rosh). And if there were holes in the door through which the Jew can look and see from there — all the barrels are permitted to drink, even if they are open.And if not — the one that can be seen through them is permitted, and the rest are forbidden in benefit, even sealed barrels, if he stayed long enough to open, re-stop and dry — (explanation: ve-yagof, that he make another stopper; and the explanation of ve-tagov: that he wipe and dry) — and even if a Jew was living in that house.
The bolt is not an obstacle: it is a confession. What renders the wine forbidden is not that the Jew could not get in — it is that the non-Jew took the trouble to shut it. The act by itself declares what he meant to do; and it hands him, into the bargain, a ready-made excuse, the one the Rishonim sum up in a sentence: “I was asleep, I did not hear you.” A man with an excuse ready fears nothing, and a man who fears nothing touches.
The hole in the door is the finest rule in the siman. It does not protect the wine — it blocks nothing and closes nothing. It merely restores the possibility of being seen, and that is enough: what lies within the line of sight is permitted even open, what lies outside it is forbidden even stopped up. Halakha is therefore not measuring the wine’s physical security; it is measuring what the non-Jew believes about his chances of being caught. And there remains the interval: as long as he has not had time שֶׁיִּפְתַּח וְיִגּוֹף וְתִיגּוֹב — to open, make a new stopper, wipe dry — a sealed barrel cannot have been reopened without leaving a trace.
The final line, set in small type in the printed editions, is the harshest of all:and even if a Jew was living in that house. One might have supposed that a Jew permanently present within the walls would be enough to instil fear. The Shach (s.k. 10) explains the stringency in a phrase taken from the Tur: once the non-Jew too has a foothold in the house — his own wine is stored there — his presence is no longer anomalous, and everything is explicable.
Seif 4 — A house holding nothing but our wine
בית שאין בו אלא יינו של ישראל ונמצא עובד כוכבים בתוכו אם אין הדלת נעול מותר בשתיה ואם הוא נעול במפתח מבפנים אם אינו נתפס כגנב אסור בהנאה ואם הוא נתפס כגנב על הכניסה מותר בשתייה: הגה וי״א דבזמן הזה שאין העובדי כוכבים מנסכין אפילו אינו נתפס כגנב שרי אא״כ יש לחוש שנגעו לשתות ממנו או להנאה אחרת (כך הוא בהגהות אשיר״י פ׳ השוכר ועיין ס״ק ד׳) מיהו אם פי החבית רחב או שהוא בקנקן שיש לחוש שמא נגע בו דרך מתעסק חיישינן (מרדכי פ׳ השוכר ובב״י בשם התוספות ובסמ״ג):
A house in which there is nothing but the Jew’s wine, and a non-Jew was found inside:if the door is not locked — it is permitted to drink. And if it is locked with a key from within: if he would not be seized as a thief — it is forbidden in benefit; and if he would be seized as a thief for the entry — it is permitted to drink.
Gloss of the Rama:and some say that nowadays, when non-Jews do not pour libations, even if he would not be seized as a thief it is permitted — unless there is reason to fear that they touched it in order to drink from it or for some other benefit (so it is in the Hagahot Ashri, ch. HaSokher; and see s.k. 4). However, if the mouth of the barrel is wide, or it is in a jug, so that there is reason to fear he touched it inadvertently — we take that into account (Mordechai, ch. HaSokher; and Beit Yosef in the name of Tosafot; and Semag).
Three states, not two.Door open: he is neither shut in nor shielded, anyone may walk in on him — so he is afraid, and the wine remains permitted to drink. Door locked, and he has nothing to lose — the wine is forbidden in benefit: the maximum stringency, because the locking proves the intent. Door locked, but he would be “seized as a thief” for having entered: the fear returns by another route, that of the city’s justice, and the wine is permitted to drink. Note that the difference between those last two lines lies neither in the wine nor in the act, but in the social standing of the intruder.
The Rama’s gloss shifts the whole question. It recalls that the original presumption — he came in to pour a libation — assumes a world in which libations are poured. Where that is no longer so, the object of the fear changes: it is no longer worship that is feared but self-interest — that he drank some, that he derived some other benefit. And the Rama immediately sets his own limit, a very concrete one: a wide mouth, a jug. No intent is needed to spoil wine; a contact דֶּרֶךְ מִתְעַסֵּק, absent-minded and unthinking, is enough.
Seif 5 — Barrels in the marketplace
היו בשוק חביות יין ונמצא עובד כוכבים ביניהם אם הוא עובד כוכבים חלש שאימת שופטי העיר עליו ואם ימצאוהו נוגע נתפס כגנב מותר בשתייה ואם לאו אסור בהנאה. (ועיין לקמן סי׳ קכ״ט עוד מדינים אלו):
If there were barrels of wine in the marketplace and a non-Jew was found among them:if he is a weak non-Jew upon whom the dread of the city’s judges lies, and if they were to find him touching he would be seized as a thief — it is permitted to drink; and if not — it is forbidden in benefit.
Cross-reference of the Rama:and see further on, siman 129, further laws of this kind.
The siman closes on a definition, and that is what to carry away. Seif 4 used the phrase נִתְפָּס כְּגַנָּב without defining it; seif 5 defines it, almost in passing: a weak man, upon whom the dread of the city’s judges lies, and who would be treated as a thief if he were found touching. It is therefore neither a moral category nor a religious one — it is a legal and social situation, and it is measured against the real world: does the law of the place actually punish, and does this particular man actually have something to fear from it? The Shach (s.k. 12) will insist that the phrase means the same thing everywhere: if they were to find him.
2. Context — where the principle of מִירְתַּת comes from
The distinction in seif 1 between leaving alone and depositing is no matter of vocabulary: it is a baraita, which applies it to the ger toshav and makes the two regimes depend not on the city but on the act.
Seif 2 comes straight from a mishnah, which gives the rule in its shortest possible form — a man standing beside the wine, and one single question that settles everything:
And the Tur, whom the Mehaber follows closely in this siman, opens with the sentence that governs seif 1 — and gives the reason for the stringency: this is not a doubt, it is an attribution.
« כל מי שדרכו לנסך אין מייחדין יין אצלו אפילו שעה אחת ואם יחדו אצלו אסור בהנאה שאנו תולין לומר ודאי נסכו » — טור יורה דעה סימן קכ״ח
The great questions of the siman
What guards the wine? Not the lock, not the seal, not the distance: the fear of being seen. The whole siman reads as a series of situations in which that fear exists, vanishes, or returns by another route.
Why are yiḥud and hafkada not equivalent? Because they do not fear the same thing: the first fears libation, the second fears substitution and the hands of others.
What does a loan do? It removes the fear — but only if it is secured on the wine itself. Being the owner’s creditor confers no claim on the barrel.
What is it to be “seized as a thief”? A situation, not a character: the law of the place, the man’s weakness, and the certainty that he would be punished if caught.
This siman deals neither with established contact (simanim 124-125), nor with mixtures (siman 126), nor with the credibility of a witness (siman 127). It deals with the absence of any witness — with what must be presumed when nobody saw anything. That is why it almost never speaks of the wine itself, and almost always of doors, holes, locks, loans and judges.
3. The key concepts of this siman
יִחוּד — leaving him alone. The wine stays on our premises; the non-Jew is there unwatched, for a short time — the measure given by seif 1 is long enough for him to walk the distance of a mil or more. Permitted with one whom we know does not serve idols; the Rama, for his part, does not allow it in practice.
הַפְקָדָה — depositing. The wine passes to his house, and for a long time. Forbidden, and not for the same reason as yiḥud: the fear is no longer libation but that he swap the wine or let others handle it, having himself no reason to care. And the seif adds the consequence: if he transgressed and deposited it, the wine is forbidden to drink.
מִירְתַּת — he is afraid of being caught. The single mainspring of the siman, and the word the Mehaber never writes. It is not a moral fear but a calculation: does this man know that he may be surprised, and that it would cost him something? If so, the wine is guarded without a lock; if not, no lock guards it.
נִתְפָּס כְּגַנָּב — he would be seized as a thief. The social form of the fear, in seifim 4 and 5. Seif 5 gives the full definition: a weak man upon whom the dread of the city’s judges lies, and who would be treated as a thief if found touching. The Shach (s.k. 12) recalls that the phrase bears this sense everywhere: if they were to find him.
אֲפוֹתִיקִי — the designated security. The asset the debtor sets aside as security for the debt. It is the pivot of seif 2: a creditor secured on that very wine has nothing left to protect and the wine becomes forbidden; an ordinary creditor, even past the due date, changes nothing.
תָּלִינַן בְּדָבָר הָרָגִיל — we attribute to what is usual. The rule for reading evidence, laid down by the Rama in seif 2. It cuts both ways: froth may have come from the side — so we say; the spigot in his hand can only have come from an act — so we say too. It is not a rule of leniency, it is a rule of likelihood.
כְּדֵי שֶׁיִּפְתַּח וְיִגּוֹף וְתִיגּוֹב — long enough to open, re-stop and dry. The interval that decides the fate of a sealed barrel, in seif 3. Below it, the tampering would have left a visible trace; above it, nothing distinguishes it any longer. The printed text carries the explanation of the two verbs: yigof, to make another stopper; tagov, to wipe and dry.
נְקָבִים בַּדֶּלֶת — holes in the door. The most instructive detail of the siman: what saves the wine is not a barrier but a possible line of sight. What lies within the field of the hole is permitted even uncovered; what lies outside it is forbidden even stopped up.
דֶּרֶךְ מִתְעַסֵּק — inadvertently. Contact without intent, which the Rama reintroduces in seif 4 in order to bound his own leniency. Even where libation is no longer feared, a wide mouth or a jug make an absent-minded contact a live concern — and that suffices.
אָסוּר בַּהֲנָאָה · אָסוּר בִּשְׁתִיָּה — forbidden in benefit, forbidden to drink. The two degrees the whole siman plays upon. The first is total: neither drinking, nor selling, nor any use at all. The second leaves the wine’s value intact. Tracking which of the two falls is the fastest way to read the five seifim.
4. The summary table — when the wine stays permitted, and on what footing
The siman never answers plain “permitted” or “forbidden”: it answers on two degrees — forbidden in benefit, forbidden to drink only, or permitted. And what decides is always the same thing: did the intruder have anything to fear? Here are the five seifim laid flat.
המקרה
Situation
Status
Seif
נתייחד עם היין
An idolater left alone with the wine, even with us, even briefly
אסור בהנאה
1
שאינו עובד עבודת כוכבים
A non-idolater, yiḥud with us for a short time
מותר לייחד — even in a wholly non-Jewish city
1
הודיעו שהוא מפליג
He informed him that he was going far off
Changes nothing: מותר
1
מפקידין אצלו יין בביתו
Deposit at his house
אין מפקידין
1
בבתינו לזמן מרובה
Even with us, but for a long time
אסור
1
עבר והפקיד
He transgressed and deposited
אסור בשתיה — benefit remains
1
שבחוצה לארץ
Non-Jews outside the Land, non-idolaters
Rama: אין מייחדים יין אצלם
1 (Rama)
מלוה על אותו יין · אפותיקי
A loan secured on that very wine
אסור, even under a single seal
2
מלוה על ישראל בעל היין
A loan on the owner, term fallen due
מותר
2
עומד בצד היין · בכדי פישוט ידים
Standing right against the wine, within arm’s reach
מותר — הוא ירא ליגע
2
נמצא בידו קצף
Froth in his hand
מותר — מדופני החבית לקחו
2
דברים שאינם נמצאים אלא על פי החבית
A trace that can only come from the mouth
Rama: אסור
2 (Rama)
תופס הברזא בידו
The spigot in his hand
Rama: היין אסור — דתלינן בדבר הרגיל
2 (Rama)
סגר הדלת · במנעול מבפנים
He bolts it from within, both own wine there
היין אסור
3
נקבים בדלת
Holes through which all the barrels can be seen
מותרות בשתיה — even open
3
את שיכול לראות דרך שם
Only some barrels lie within the field of sight
Those מותר, the rest אסור בהנאה
3
חביות סתומות · כדי שיפתח ויגוף ותגוב
Sealed barrels, the interval having elapsed
אסור בהנאה
3
ישראל דר באותו בית
A Jew nevertheless lives in the house
No relief: אפילו so
3
אין הדלת נעול
The Jew’s wine only, door not locked
מותר בשתיה
4
נעול במפתח מבפנים · אינו נתפס כגנב
Locked from within, nothing at risk for him
אסור בהנאה
4
נתפס כגנב על הכניסה
He would be taken for a thief for entering
מותר בשתייה
4
בזמן הזה שאין מנסכין
In an age when libations are not poured
Rama, יש אומרים: שרי even without נתפס כגנב
4 (Rama)
שנגעו לשתות או להנאה אחרת
Fear that he touched it to drink or to benefit
Rama: the leniency falls
4 (Rama)
פי החבית רחב · קנקן · דרך מתעסק
Wide mouth or jug: absent-minded contact possible
Rama: חיישינן
4 (Rama)
חביות יין בשוק · עובד כוכבים חלש
In the marketplace, a man the judges frighten
מותר בשתייה
5
ואם לאו
In the marketplace, a man nothing frightens
אסור בהנאה
5
Read from top to bottom, the status column tells the siman better than any summary: it alternates constantly, and never for the reason one expects. An open barrel within arm’s reach may stay permitted; a sealed barrel behind a closed door may become forbidden in benefit. The difference lies neither in the vessel, nor in the distance, nor in the duration — each time it lies in what the intruder had to lose.
5. The Taz and the Shach — five key passages
The two great commentaries printed around the Shulchan Aruch on Yoreh De‘ah are the Taz (Turei Zahav, Rabbi David HaLevi Segal, 1586-1667) and the Shach (Siftei Kohen, Rabbi Shabtai HaKohen, 1621-1662). On this siman the Taz writes nine notes and the Shach thirteen — few, but their weight is unusual: here it is the Shach who decides the practice, overturning the printed text’s stringency on two points.
Two key passages from the Taz
Taz s.k. 1 — why the Shulchan Aruch tightened both conditions at once
« וע״כ החמיר הש״ע לאסור בשתיהם ואין היתר אלא בבתינו ולזמן מועט » — ט״ז יו״ד קכ״ח ס״ק א
And therefore the Shulchan Aruch was stringent and forbade in both cases; and there is no permission except on our own premises and for a short time.
The Taz begins by setting out two possible readings of the pair yiḥud / hafkada. For the Tur, the difference is one of duration: yiḥud is the short time, hafkada the long one. For Rashi, it is one of place: yiḥud takes place with us and without entrusting him with custody, hafkada at his house. The Shulchan Aruch, the Taz observes, does not choose — it takes both conditions together, and permits only what satisfies both: with us and briefly. That is the key to reading seif 1.
Taz s.k. 5 — it must first be established that he bolted it
« דוקא שידוע שנעלו בפנים אבל אם אין ידוע אע״פ שיש מנעול בפנים אין אוסרים מספק » — ט״ז יו״ד קכ״ח ס״ק ה
Precisely where it is known that he bolted it from within; but if it is not known, then even though there is a bolt on the inside, we do not forbid on a doubt.
Seif 3 makes everything rest on a single act: he shut it with the bolt. The Taz, in the name of a responsum of the Rashba, recalls that this act must be established, not supposed. The presence of a bolt on the inside proves nothing; this is a rabbinic prohibition, and one does not forbid on a doubt. Yet the Taz adds at once the boundary that makes the rule workable: this holds by day — at night we presume he did lock it, and he notes that the leniency of the holes in the door is bounded in exactly the same way.
Three key passages from the Shach
Shach s.k. 3 — “forbidden to drink”: how far does the permission of benefit reach?
« משמע דבהנאה בכל גוונא שרי וכן משמע בב״י אבל הב״ח השיג עליו דלא שרי בהנאה אלא בידוע שלא נגע » — ש״ך יו״ד קכ״ח ס״ק ג
It follows that benefit is permitted in every case, and so it appears from the Beit Yosef too. But the Bach objected against him: benefit is permitted only where it is established that he did not touch.
Seif 1 closes on a deceptively simple phrase: if he transgressed and deposited it, it is forbidden to drink. The Shach draws the natural implication — that benefit remains permitted in every case — and then reports the Bach’s objection, for whom the permission of benefit presupposes knowing that he did not touch. The disagreement is not a detail: it bears on precisely what is feared in a hafkada — a mere substitution of wine, or contact as well.
Shach s.k. 11 — he fears only if he knows what he would cause to be lost
« והיינו דוקא כשהעובד כוכבים יודע דמגע עובדי כוכבים אסור לישראל ויפסיד יינו בכך » — ש״ך יו״ד קכ״ח ס״ק י״א
And that is precisely when the non-Jew knows that the touch of a non-Jew is forbidden to a Jew and that he would thereby cause him to lose his wine.
The most important remark in the siman for modern use. The entire edifice of permission rests on מִירְתַּת; and one fears only what one knows. If the intruder does not know that a mere touch ruins the wine, he has no reason whatever to abstain, and the reasoning of seif 2 collapses. The Shach adds that without this there is no mirtat at all, and refers to the beginning of siman 115, where the same condition governs other prohibitions.
Shach s.k. 12 — what “seized as a thief” means
« בכ״מ שהוזכר נתפס כגנב פירושו שאם ימצאוהו יהא נתפס כגנב » — ש״ך יו״ד קכ״ח ס״ק י״ב
Everywhere the phrase “seized as a thief” is used, its meaning is: that if they were to find him, he would be seized as a thief.
A six-word gloss that averts a massive misreading. One could take nitpas ke-ganav for a state — this man is a thief, or has been caught. The Shach cuts that off: it is a conditional. The question is never what happened to him, but what would happen to him if he were caught. And for the full definition he refers to seif 5 — the one place where the Mehaber spells it out.
6. The glosses of the Rama (הגה) — four interventions across four seifim
The Rama intervenes on four of the five seifim, and never in order to contradict: each time he adds what the Ashkenazi practice of his day had found. Two of these interventions are introduced by the word הגה (seifim 2 and 4); the other two are additions in parentheses (seifim 1 and 5).
On seif 1 — the permission in principle, and its withdrawal in practice
The Mehaber has just permitted yiḥud with one who does not serve idols. The Rama, in the name of the Rashba as reported by the Beit Yosef, observes that the non-Jews of the lands of the diaspora do fall within that category — and yet refuses to leave wine alone with them. It is a textbook instance of the Rama’s manner: he does not dispute the definition, he reports the practice. The Shach (s.k. 4) devotes to this line his longest discussion in the siman, to show that the Rashba’s stringency follows from his own position on the status of non-Jews’ wine in his day — and that it therefore applies beforehand, not necessarily after the fact.
On seif 2 — evidence always reads in the same direction
This is the most instructive intervention. The Mehaber had exonerated the froth: it may have come from the side. The Rama draws from that the general rule — we always attribute to what is usual — and shows at once that it can forbid: a trace found only at the mouth, or the spigot found in his hand. He expressly refuses the comfortable reading (“the bung must have fallen out by itself”). Attribution is not a favour: it is a judgment of likelihood.
On seif 4 — “nowadays”, and the limit he sets himself
The gloss with the heaviest consequences. The Rama reports a yesh omrim: where non-Jews do not pour libations, the presumption on which the whole seif rested disappears, and the wine stays permitted even if the intruder risked nothing. But in the same sentence he sets two bounds: the fear that he touched it to drink or to derive benefit, and the case of a wide mouth or a jug, where an absent-minded contact — דֶּרֶךְ מִתְעַסֵּק — remains a live concern. In other words: what changes is not the severity of the rule but what is feared.
On seif 5 — the cross-reference that opens the next siman
A single line, and it is methodological: see further on, siman 129, further laws of this kind. Siman 128 deals with the non-Jew who is found beside the wine; siman 129 will deal with wine that is entrusted and with the Jew who comes and goes. The Rama thereby signals that the division between the two simanim is a division of situations, not of principles: the mainspring — the fear of being seen — is the same in both.
One line runs through all four glosses: the Rama never moves the criterion, he moves its object. Fear remains the measure; what changes is what is feared — libation yesterday, self-interest and inadvertence today — and what practice has found. That is why his additions are sometimes stricter than the Mehaber (seifim 1 and 2) and sometimes more lenient (seif 4), with no contradiction at all.
7. Practical cases today
Case 1 — The delivery driver alone in the cellar
This is seif 1 in its literal form. The wine is on our premises, the man is alone with it for a while: this is יִחוּד, not הַפְקָדָה. The Mehaber permits it for a short time with one who does not serve idols; the Rama does not allow it in practice. But two remarks change everything in a contemporary cellar: the bottles there are factory-sealed, and the wine is most often mevushal. The siman does not address those; it addresses wine that is open and handleable. Before reasoning in terms of yiḥud, one must therefore establish which wine is in question.
Case 2 — Stock pledged to a creditor
Seif 2 transposed without effort: a merchant pledges his wine stock as security for a loan. As long as the lender is simply a creditor of him, nothing changes, even past the due date. But if the security bears on that stock — the apotiki of the seif — the presumption inverts: the creditor has nothing left to protect, and his mere presence in the warehouse becomes a problem. The siman states precisely what a lawyer would call a conflict of interest.
Case 3 — The cold room locked from inside
Seif 3, almost word for word. What forbids is not the shutting-in: it is the act of having locked, which proves the intent and supplies the excuse. The Taz (s.k. 5) imposes an important caution here: it must be established that he locked it — a room that happens to have an inside bolt is not enough to forbid on a doubt. And the porthole, the glass panel or the camera play exactly the role of the נְקָבִים בַּדֶּלֶת: what can be seen is permitted, uncovered included; what lies outside the field is not, stopped up though it be.
Case 4 — The buffet, the wide neck, the distracted hand
The limit the Rama sets himself in seif 4. Even where libation is no longer feared, there remains contact דֶּרֶךְ מִתְעַסֵּק — the absent-minded gesture, the bottle moved aside, the glass poured out of politeness. The Rama names the risky vessels precisely: a wide mouth, a jug. An open carafe on a table is not a sealed bottle in a case, and the siman knows it before we do.
Case 5 — What “seized as a thief” means in a country under law
Seif 5 supplies the definition and, with it, the difficulty. The phrase presupposes a local justice that is genuinely feared, and a man in a position to fear it. Transposing therefore calls for two checks, not one: would the act really be penalised — theft, damage, professional misconduct — and does this particular person really have something to lose? An employee under contract and under supervision is not in the position of an anonymous passer-by.
Case 6 — The condition the Shach adds, and that is always forgotten
Shach s.k. 11: the fear operates only if the intruder knows that a mere touch ruins the wine. This is today the most operative remark in the siman: someone moving a bottle in a storeroom generally has no idea that in doing so he may cost his employer the value of a whole pallet. Where that knowledge is missing, the reasoning of seif 2 simply does not apply — and that is an argument for signage and instruction before it is a halakhic argument.
8. Synthesis of Siman 128
In one sentence: when a non-Jew has been left alone with wine, or has been found beside it, the fate of the wine depends neither on the lock, nor on the seal, nor on the distance, but on a single question — did he have anything to fear? Seif 1 governs wine that is left deliberately, distinguishing yiḥud from hafkada; seifim 2 to 5 govern the non-Jew who is found there, examining in turn what takes his fear away (a loan secured on the wine, a door bolted from within) and what restores it (holes in the door, the justice of the city). The Rama adds the rule for reading evidence — we attribute to what is usual — and the decisive shift: where libations are no longer poured, what is feared is no longer worship but self-interest and inadvertence.
Memory table
The question
The criterion
Where
May he be left alone with the wine?
Yes, with us and briefly, if he does not serve idols
seif 1
May it be entrusted to him?
No: אין מפקידין, and even with us if it is long
seif 1
And if it was done anyway?
אסור בשתיה — benefit stays permitted
seif 1
A creditor standing by the wine?
Forbidden only if he holds מלוה על אותו יין
seif 2
A trace found in his hand?
Attribute to דבר הרגיל, leniently and stringently alike
seif 2 (Rama)
Why does the bolt forbid?
It proves intent and supplies the excuse — אישתמוטי
seif 3
What do the holes in the door save?
Whatever lies within the line of sight, even open
seif 3
And the sealed barrels?
Forbidden if he had כדי שיפתח ויגוף ותגוב
seif 3
Our wine alone, door open?
מותר בשתיה — he fears being surprised
seif 4
Door locked?
אסור בהנאה, unless he is נתפס כגנב
seif 4
And nowadays?
Rama: libation is no longer feared, but benefit is
seif 4 (Rama)
What does נתפס כגנב mean?
A weak man whom the city’s judges frighten
seif 5
And if the fear is misplaced?
Shach: he must first know what he would cause to be lost
ש״ך ס״ק י״א
Comprehension questions
Distinguish ייחוד from הפקדה: how do they differ in place, in duration, and above all in what each one fears?
Why does the clause “even if he informed him that he is going far off” appear in seif 1 as a permission, when elsewhere that information makes the case worse?
Seif 2 permits the wine even with no seal at all and within arm’s reach. What reason is given, and why does a loan on the owner not overturn it?
Show, from the Rama’s gloss on seif 2, that the rule we attribute to what is usual is not a rule of leniency.
In seif 3, why is a bolted door graver than a merely closed one? Which Aramaic verb carries the whole answer?
Explain how open barrels can remain permitted (seif 3) while sealed barrels can become forbidden in benefit within the same seif.
Seif 4 distinguishes three states, not two. Name them, and say which entails the prohibition of benefit — and why.
The Shach (s.k. 11) adds a condition to the reasoning of seif 2. Which one, and what practical consequence follows from it today?
Going further
If you wish to go deeper into this siman:
📚 Level 2 — Lamdan: the pilpul — the dispute between Rashi and the Tur on the definition of yiḥud, the ḥakira on the nature of מִירְתַּת (a factual presumption or a rule of proof), and the Shach’s debate with the Bach on the prohibition of benefit
✨ Level 3 — Synthesis: the comparative tables (degrees of prohibition, situations of fear, evidence and its attribution) and rapid memorisation of the 5 seifim