1) IS THE MISHNAH DISCUSSING ONE CASE OR TWO?
OPINIONS: The Mishnah discusses a case in which a Jew processes the grapes of a Nochri and turns them into wine, and stores the wine in the domain of a Nochri which is open to Reshus ha'Rabim. (The Gemara later (61b) discusses whether or not this refers to the Nochri who owns the grapes.) If both Jews and Nochrim live in the city, the wine is permitted. If only Nochrim live in the city, the wine is permitted only when a guard watches the wine. The guard, however, is permitted to come and go ("Yotzei v'Nichnas") and does not have to be present all the time.
The Mishnah then discusses another case in which a Jew processes the grapes of a Nochri and turns them into wine, and stores the wine in the domain of a Nochri. The Mishnah says that if the Jew received a contract of "Hiskabalti," the wine is permitted. If the Jew cannot take the wine from the Nochri's domain without the Nochri's consent, it is forbidden.
Is the Mishnah discussing two separate cases, or is it discussing a single case?
(a) RASHI (DH Mutar) writes that the Mishnah is discussing only one case. The only grounds on which to permit the wine when the storage area faces Reshus ha'Rabim is when the Nochri wrote a contract of "Hiskabalti." When no contract of "Hiskabalti" was written, the wine remains prohibited, even though the storage area faces Reshus ha'Rabim. (See Insights to 60b with regard to whether Rashi here maintains that one needs a key or seal (Mafte'ach v'Chosam) in this case.)
The RAN explains that Rashi learns this way because of a Beraisa quoted by the Gemara later. The Gemara later says that when a Jew makes his own wine and wants to store it in a Nochri's storage area, he needs to have a key and a seal (some say this means a key or a seal; see RITVA and RASHBA to 61b) if he does not live in the same courtyard as the Nochri. If the Jew must have a key and a seal, then why does the Mishnah say that once a person has a contract of "Hiskabalti," the wine is permitted and he needs nothing else, not even a key and seal? The case of "Hiskabalti" requires more to permit the wine than a case in which the wine always belonged to a Jew, as is apparent from the Beraisa later (which is far more stringent in the case of "Hiskabalti"). It must be that the reason why the wine in the case of "Hiskabalti" is permitted is that the storage area faces Reshus ha'Rabim, as stated in the beginning of the Mishnah. Accordingly, the Mishnah is discussing only one case.
The Ran disagrees with Rashi. He points out that according to Rashi, the Mishnah should have given just one case -- of "Hiskabalti" and facing Reshus ha'Rabim. Why does the Mishnah express the case as though it is two separate cases? TOSFOS (DH ha'Mitaher) also questions Rashi's explanation. The Gemara asks that in a case where there are only Nochrim in a city, one should be able to rely on the Jewish peddlers who pass through to ensure that Nochrim do not tamper with the wine. The Gemara answers that the city is one which is generally locked, and if a peddler enters, everyone knows about it and will be wary. Tosfos asks that according to Rashi, who says that the Mishnah is one case and that a key and a seal are unnecessary (see Insights to 60b), why does the Gemara even suggest that one may rely on Jewish peddlers to ensure that Nochrim do not tamper with Jewish wine? How should the peddlers even know that the wine belongs to Jews?
(b) TOSFOS quotes RABEINU TAM who explains that the Mishnah is expressing two separate cases. In both cases, there is a key and a seal. The Mishnah's topic is how wine made under the auspices of a Nochri can be considered like Jewish wine. The Mishnah first teaches that when the wine is stored facing Reshus ha'Rabim, it is considered to have a status similar to Jewish wine. In its second case, the Mishnah teaches that the wine can have such a status when there is a contract of "Hiskabalti." However, in both cases there must be a key and seal on the wine. The Ran maintains that this is the correct explanation.
(c) The Ran quotes the RA'AVAD who explains that the Mishnah is teaching two separate cases, and in both cases there is no need for a key and seal. When the wine faces Reshus ha'Rabim, a Nochri is scared to tamper with it. The second case of the Mishnah teaches that when the Nochri writes a contract of "Hiskabalti," and the wine faces either an alley, or the Nochri who "owns" the grapes does not live in this courtyard, the wine may be stored without a key or seal. (Y. MONTROSE)
2) "NITFAS ALAV K'GANAV"
OPINIONS: The Gemara discusses a case in which Jewish wine was in a city, and an idolater was found hanging around the barrels. Rava said that if the idolater is caught in the manner of a thief, the wine is permitted. If not, the wine is prohibited.
What does the Gemara mean when it says that the idolater is caught in the manner of a thief?
(a) RASHI (DH Im Nitfas) explains that if the idolater, who has no connection with the authorities, will be arrested as a thief if he is seen touching Jewish wine, one may assume that even though he was around the wine he never touched it. If, however, he would not be arrested if seen touching Jewish wine, one must assume that he was Menasech the wine.
The Gemara later (70a) discusses a case in which an idolater was found among Jewish barrels of wine in a house. Rava said that if the idolater can give a good reason for why he was in the home around the wine barrels, the wine is forbidden. If not, the wine is permitted. Rashi there (DH Iy Is Lei l'Ishtamutei) explains that if the Nochri has a plausible reason for having entered the house, the wine is prohibited, since he can always give a good reason for why he was among the barrels. If he cannot give a reason for why he entered the house, the wine is permitted. In light of the words of Rashi here (61b), Rashi there seems difficult. Even if the Nochri has an alibi, as long as he is Nitfas Alav k'Ganav, meaning that he has no excuse for why he was touching the wine, that should be reason enough to make the wine permitted, even if he has an alibi for why he entered the area. Why does Rashi explain that the Gemara there says that the wine should be prohibited as long as the idolater has an excuse for why he entered the area?
1. The RITVA in fact learns that this is a contradiction in Rashi, and the correct explanation is that of Rashi later (70a). The Ritva says that the correct explanation of Nitfas Alav k'Ganav is that he is caught entering the area, not touching the wine.
2. TOSFOS (DH ha'Hu Kracha) learns, like Rashi, that the Gemara here refers to one who has an excuse for touching the wine, while the Gemara later refers to one who has an excuse for entering the area of the wine. Why is this not a contradiction? Tosfos explains that the Gemara later is talking about a private house. Once the Nochri is in the house, he will be Menasech the wine since he does not think he will be seen. In contrast, the Gemara here is discussing wine which is in a marketplace in a public area. Since many people are present, the Nochri is afraid that people will see him touch the wine and have him arrested. This is why the fear of touching is sufficient in the case of the Gemara here, but not in the case of the Gemara later.
(b) The RA'AVAD learns like the Ritva, with one difference. He learns that the Jewish wine has walls around it to signify that it is off-limits. Anyone who goes around those walls will be Nitfas Alav k'Ganav. (Y. MONTROSE)