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QUESTION
NEW YORK, NY

Dear Rabbi Linzer,
Bottles of non-kosher wine are on their way to me as a holiday present. In the past, we have accepted them, dumped the contents and recycled the bottles since I understand that I can’t give them away. Assuming that’s correct, do we have any ability to not accept the shipment and allow the UPS driver to keep it? Is it too late if it is left on our doorstep?

As clarification, assume that I’m sefardi or following the Rema’s “tov l’hachmir” (good to be strict) position, as this was an unexpected gift from a business I use.

Thank you for all your thoughtful answers.

ANSWER

The Rema YD 123:1 writes that when there is a need / b’makom hefsed (in the case of financial loss) we consider Christians to not be ovdei avodah zarah (idol worshippers) and thus their wine is only forbidden to be drunk, but one may derive benefit from it. Mechaber never makes this assertion, and Rema says that it is good to be machmir li’chatchila – i.e., to not buy the wine to begin with, but bi’dieved and bi’makom hefsed you can be lenient.

This case is bi’dieved, but not really one of hefsed (sure, he loses the wine, but he didn’t have that to begin with anyway). It is hefsed ochlin (loss of food), however, but that’s not the same thing. And see Shakh, YD 124:71 who writes that we only adopt this position regarding Christians in a real case of hefsed.

So – even if this is assur bi’hanah (forbidden to derive from), why can’t the wine just be gifted to a doorman or a non-Jewish friend? What benefit is the giver getting?

Here the problem is the principle of “matanah ke’mekher”  (which comes up in the Gemara in a different context – see Bava Metzia 16a) – that is, when you give someone a gift, it often is either reciprocating for a gift or kindness you received, or will engender reciprocation – or at least good will and positive feeling – from the recipient. See Beit Yosef, Yoreh Deah 117 in the name of Hagahot Maymoni

דמתנה כמו מכר היא (ב”מ טז.) דאי לאו דקבל הנאה מיניה לא הוה יהיב ליה מידי:

Logically, this does not apply to a gift to someone you don’t know and who will never reciprocate. This is indeed the position taken by the Mekor Chaim, who rules that all issurei hana’ah, except chametz b’pesach, are permitted to give to an ownerless animal or to a non-Jew whom you do not know (Mekor Chaim OH 448:13, biurim 10).

So there are two solutions to suggest:

Solution 1 – give it to someone anonymously. Give it to a doorman at a random apartment building where you never go, etc.

Solution 2 – Refuse the delivery and let the UPS driver keep it. Although he will be grateful (and this may translate into some special treatment in the future), if you never accepted it, it was never yours, and you are not benefiting from the wine. What you are “benefiting” from (in the sense of engendering his gratitude), is your refusal to take the wine, which leaves it ownerless. Or your allowing him to take wine that you don’t own. That is not benefiting from the wine. Consider – if there was stam yaynam on a roof that was free for anyone to take, and you stepped out of the way so the non-Jew could take it, or even if you brought him a ladder, and as a result he was grateful to you, would that be benefiting from stam yaynam? No – it’s benefiting from the favor.

[Now, why I am adopting the position to only rely on stam goyim beyameinu einam ovei avodah zarah (today, non idol worshipping non jews aren’t considered halakhically idol worshippers) in a bi’dieved case, given: (a) I in general am fine with relying on it in other cases that deal with interactions with non-Jews, including religious Christians, (b) a lot of wine nowadays is not touched by human hands; (c) a lot of people in the U.S. are not religious in any meaningful way; and (d) this whole din is rabbinic?

My reason is as follows – first, I was working with the assumption that we should assume avodah zarah status, as the questioner was interested in thinking about how the hana’ah issue would play out (hence the statement – “let’s say I hold like SA against Rema”).

Even putting that aside, I am not eager to apply that principle in the case of wine when there isn’t a hefsed. When the issue at stake is interacting with non-Jews, wishing them a merry Christmas, donating money to rebuild a church, etc. – there are major ethical and darkhei shalom issues at stake. And I don’t mean darkhei shalom as “let’s be nice to them so they will be nice to us”. Rather, I mean it as – this is what it means to live in a diverse society and our responsibility as religious and moral people.

In this case, in contrast, if there isn’t a loss, and it just means not accepting a gift and the sender won’t find out, why should we be lenient? And I say that for two reasons:
(a) I don’t think it is religiously wise to be weakening the taboo nature of certain melachot asurot (forbidden foods), especially those that many treat lightly, without a good reason and
(b) I don’t think it’s bad, once we are lowering barriers in so many ways between us and the larger society, to keep some symbolic barriers present, especially when it comes at little or no cost.

Both of those reasons, I acknowledge, apply much more to kulot (leniencies) regarding drinking the wine as opposed to getting benefit from it / gifting it. Each case has to be looked at on its own merits. But those are my considerations.]