The Issur Melakha on Chol Ha-moed
the laws of THE FESTIVALS
THE LAWS OF CHOL HA-MOED (Part 1)
by Rav David Brofsky
Shiur #31: The Issur Melakha on Chol Ha-moed
The Talmud dedicates an entire tractate to the laws of Chol Ha-moed, the intermediate days between the first and last days of Yom Tov. The gemara teaches that one must refrain from performing melakhot, actions normally forbidden on Shabbat and Yom Tov, unless a specific, legitimate need arises. In addition, the Rabbis prohibited other actions, such as those that involve great effort, as well as laundering and haircuts, in order to protect the integrity of the Festival.
In the upcoming shiurim, we will explore the source and nature of the prohibition of melakha on Chol Ha-moed, briefly present the categories of permitted labors, and discuss the rabbinic prohibitions of laundering and haircuts.
Issur Melakha on Chol Ha-moed
Although the parameters and details of the melakhot prohibited on Chol Ha-moed are beyond the scope of this shiur, we will present a brief introduction. The Tur (530) writes that one is permitted to perform melakhot on Chol Ha-moed for one of five reasons:
1) If one will incur a financial loss by refraining from doing so (davar ha-aved).
2) For the sake of okhel nefesh
3) For an individual need related to the Festival (tzorekh ha-moed), as long as the melakha is not a maaseh uman (a melakha ordinarily performed by a professional)
4) For the sake of public need (tzorkhei rabim).
5) One may hire a worker who has nothing to eat in order to support him.
At times, one must also take into account the degree of skill and effort necessary to perform the melakha, as well as whether the melakha was deliberately scheduled to be performed on the Festival.
The Talmud (Chagiga 18a) suggests numerous sources of the prohibition of melakha on Chol Ha-moed. The final beraita brought by the gemara states:
Another [beraita] taught: Six days you shall eat unleavened bread; and on the seventh day shall be restraint [of work] unto to the Lord (Devarim 16:8) Just as the seventh day is under restraint [in respect of work], so the six days are under restraint [in respect of work]. If [you should think that] just as the seventh day is under restraint in respect of all manner of work, so the six days are under restraint in respect of all manner of work, therefore Scripture teaches: And on the seventh day shall be restraint [of work] only the seventh day is under restraint in respect of all manner of work, but the six days are not under restraint in respect of all manner of work. Thus, Scripture left it to the Sages to tell you on which day [work] is forbidden and on which day it is permitted, which manner of work is forbidden and which is permitted.
The entire sugya searching for a Biblical source for the Issur melakha on Chol Ha-moed strongly implies that his prohibition is mi-deoraita. Indeed, the gemara elsewhere (Moed Katan 11b) explicitly describes the prohibition of melakha on Chol Ha-moed as such.
The Rishonim, however, note difficulties in maintaining that melakha is biblically prohibited on Chol Ha-moed. First, a number of passages imply that the issur melakha is only mi-derabbanan. For example, the gemara (Moed Katan 13a) implies that the Sages prohibited melakha on Chol Ha-moed because it entails strenuous activity (tircha). Similarly, the Yerushalmi (Moed Katan 2:3) cites R. Abba bar Mamel, who said:
If my colleagues would join me, I would permit melakha on Chol Ha-moed. The only reason it is prohibited is in order that people rejoice in the festival and spend their time immersed in learning Torah. Nowadays, though, people eat and drink excessively and act frivolously during the festival.
This passage clearly implies that melakha was forbidden by the Rabbis, and therefore R. Abba bar Mamel relates that with the proper support he work permit melakha on Chol Ha-moed.
Second, the laws of Chol Ha-moed are not consistent with other Biblical laws. For example, Rabbeinu Tam (cited by Tosafot, Chagiga 18a, s.v. cholo) notes that the Rabbis permitted certain melakhot on Chol Ha-moed if refraining from them may lead to financial loss, known as a davar ha-aved. He asks, Where do we find a Biblical prohibition which is at times prohibited and at times permitted? Similarly, the Mordekhai (Moed Katan 835) asks how the Rabbis would be so lenient in establishing which melakhot to prohibit and which to permit if the prohibition is mi-deoraita.
These questions and others led many Rishonim, including Rabbeinu Tam, the Mordekahi (ibid.), the Rosh (Moed Katan 1:1), the Meiri (Moed Katan 2a), and later the Tur (530), to conclude that the verses cited in the passage above should be understood to be asmakhtot, attempts to match a Rabbinic prohibition to a Biblical verse. The prohibition of melakha on Chol Ha-moed is in fact only mi-derabban.
Some Rishonim provide the reason for this prohibition. For example, the Ritva (Moed Katan 13a) explains:
The reason for the prohibition of melakha on Chol Ha-moed is because of strenuous activities (tircha) and in order to ensure that one does not minimize the rejoicing of the festival (simchat ha-regel). Therefore, the Rabbis permitted that which is for the sake of the Festival or that which may lead to financial loss, so that a person should not be concerned with his loss and limit his enjoyment of the Festival. For that reason, they permitted paying a worker who does not have enough to eat.
Furthermore, the Yerushalmi cited above implies that the Rabbis prohibited melakha on Chol Ha-moed so that one may spend ones time immersed in Torah.
Other Rishonim (Rashi, Moed Katan 11b, s.v. ela afilu; Rashbam, Pesachim 118a, s.v. kol ha-mevaze; Chinukh 323; see also opinions cited by the Yereim 394, Meiri, Moed Katan 2a) imply that the issur melakha of Chol Ha-moed is mi-deoraita. Seemingly, however, they agree that the Torah entrusted the Sages to determine which manner of work is forbidden, and which is permitted. Some Rishonim maintain that some melakhot are Biblically prohibited, while others are Rabbinical prohibited. The Nemukei Yosef (Moed Katan 1a, s.v. gemara; see also Maggid Mishna, Hilkhot Yom Tov 7:1), for example, records that the Ramban struck a compromise and said that all melakha which is not necessary for the Festival, and does not entail financial loss is prohibited mi-deoraita and the Rabbis prohibited some of these melakhot, as has been explained. The Rashba (Avoda Zara 22a) and Ritva (Moed Katan 2a) concur.
The Rambams position has received much attention. In Hilkhot Yom Tov (7:1), he writes:
Although Chol Ha-moed is not referred to as a Sabbath, since it is referred to as "mikra kodesh (a holy convocation) and it was a time when the Chagiga sacrifices were brought in the Temple, it is forbidden to perform melakha during this period, so that these days will not be regarded as ordinary weekdays that are not endowed with holiness at all. A person who performs forbidden labor on these days is given lashes for rebelliousness (makot mardut), for the prohibition is Rabbinic in origin. Not all the types of "servile labor" forbidden on a holiday are forbidden on it, for the intent of the prohibition is that the day not be regarded as an ordinary weekday with regard to all matters. Therefore, some labors are permitted on it and some are forbidden.
Many commentators conclude that the Rambam believes that the prohibition of melakha on Chol Ha-moed is of Rabbinic origin, so that these days will not be regarded as ordinary weekdays. Some, however, challenge this interpretation. R. Yitzchak of Karlin (Keren Ora, Moed Katan 2a) notes that the in his Commentary to the Mishna, the Rambam refers to the prohibition of melakha on Chol Ha-moed as coming from tradition (be-kabbala), a term often used to describe commandments received at Sinai and passed down generation after generation. In fact, the term mi-divrei Soferim, which he used in the Mishna Torah, also may be used to describe Biblical commandments derived through Rabbinic exegesis. The Keren Ora concludes that the Rambam maintains that the melakha on Chol Ha-Moed is fundamentally Biblically prohibited, so that one can devote his energies to fulfilling the mitzvot of the Festival. The specific prohibitions, however, were defined by the Rabbis, as implied by the Talmud (Chagiga 18a).
Some Acharonim (see, for example, Mishnat Yaavetz 43, and Sefer Moadim U-Zemanim 4:296) explain that the Rambam believes that mi-deoraita, one is to treat Chol Ha-moed as a mikra kodesh, as it was a time when the Chagiga sacrifices were brought in the Temple. The Rabbis, however, defined which melakhot were prohibited and which were permitted. Therefore, while one who treats Chol Ha-moed as an ordinary weekday violates a Biblical commandment, one who performs a specific melakha only violates a Rabbinic prohibition, and therefore he receives makot mardut.
Tefillin on Chol Ha-moed
Interestingly, the question of whether melakha is Biblically or Rabbinically prohibited on Chol Ha-moed relates to a broader question regarding the nature of these days. Put simply, to what extent are these days fundamentally chol (weekdays) with certain aspects of moed (such as simcha and mussaf)? Alternatively, are they days of moed that resemble weekday in some respects?
The Rishonim relate to this issue explicitly in their discussion regarding wearing tefillin on Chol Ha-moed.
The Talmud (Eiruvin 96a) cites a debate regarding whether one must put on tefillin on Shabbat and Yom Tov. The gemara (Menachot 36a) cites a disagreement regarding the reason for those who rule that one should not wear tefillin on those days:
It was taught: It is written, And you shall observe this ordinance in its season from day to day (Shemot 13:10). Day, but not night; from day, but not all days; hence the Sabbaths and the Festivals are excluded. This is the view of R. Yossi Ha-Galili. R. Akiva says: This ordinance refers only to the Passover-offering! He derives it from the text from which R. Akiva derives it. For it was taught: One might have thought that a man should put on the tefillin on Sabbaths and on Festivals, Scripture therefore says, And it shall be for a sign upon your hand, and for frontlets between your eyes that is, [only on those days] which stand in need of a sign [are tefillin to be worn], but Sabbaths and Festivals are excluded, since they themselves are a sign.
R. Yossi Ha-Galili explains that the verse implies that there are days on which one wears tefillin and others on which one does not. R. Akiva suggests a more fundamental approach: Man needs a constant sign (ot) reflecting the relationship between him and God. During the week, the tefillin play this role. On the Shabbat and Festivals, however, one need not wear tefillin, as these days themselves are a sign of the relationship between man and God.
Must one wear tefillin on Chol Ha-moed.? On the one hand, many Rishonim (Behag, cited by Tosafot, Moed Katan 19a, s.v. Rabbi Yossi; Ri, cited by Hagahot Maimoniyot, Hilkhot Tefillin 4:1; Rashba, Teshuvot 1:690) explain that one should not wear tefillin on Chol Ha-moed, as Chol Ha-moed also constitutes an ot. They disagree, however, as to whether the prohibition of melakha on Chol Ha-moed serves as the ot or the mitzvot of sukka and matza, which apply during Chol Ha-moed as well.
The Talmud (Moed Katan 19a) teaches that one may write tefillin on Chol Ha-moed for oneself, and some Rishonim derive from here that one must wear tefillin on Chol Ha-moed. Indeed, the Yerushalmi (Moed Katan 3:4) adds that one may write tefillin in order to wear them. Although one might explain that these passages were authored by those who require that one wear tefillin even on Shabbat and Yom Tov, some Rishonim (Mordekhai, Hilkhot Tefillin, p. 13; Rosh, Hilkhot Tefillin 16; Or Zarua 1:589) argue that one should wear tefillin on Chol Ha-moed, just as one wears tefillin on a weekday. They explain that the issur melakha on Chol Ha-moed, the prohibition of eating chametz, and the obligation to sit in the sukka do not constitute an ot that would obviate the need for tefillin.
Some Rishonim (Ritva, Eiruvin 96a; Smak 153; and Tur 31), uncertain about whether or not one should wear tefillin on Chol Ha-moed, argue that one should wear tefillin without a blessing.
R. Yosef Karo records in his Beit Yosef (Orach Chaim 31) that Sephardic Jews originally wore tefillin on Chol Ha-moed, until they discovered a Kabbalistic passage, the Midrash Neelam, which prohibits wearing tefillin on Chol Ha-moed. He rules accordingly in the Shulchan Arukh (Orach Chaim 31:2). The Rema, however, rules in accordance with the Turs father (the Rosh) that one must wear tefillin on Chol Ha-moed and quietly recite the blessing. The Taz (Orach Chaim 31:2) recommends wearing tefillin without a blessing on Chol Ha-moed (see also Mishna Berura 31:8 and Arukh Ha-shulchan Orach Chaim 31:4, who concur).
Sephardic Jews do not wear tefillin on Chol Ha-moed, in accordance with the Shulchan Arukh. Many Ashkenazim do wear tefillin on Chol Ha-moed, following the position of the Rema, although they do not generally recite the berakhot, as cited above. Interestingly, both the Vilna Gaon (Biur Ha-Gra, Orach Chaim 31; Maase Rav 174), however, ruled that one should not wear tefillin on Chol Ha-moed, and this position became increasingly popular in Lithuania, as recorded by the Arukh Ha-Shulchan. Similarly, R. Soloveitchik records (Shiurim Le-Zekher Abba Mari, vol. 1, p. 109) that his father, and grandfather, R. Chaim Soloveitchik, following the custom of the Vilna Gaon and of the Volozhin Yeshiva, rejected the long standing Ashkenazic practice, and they did not wear tefillin on Chol Ha-moed. He explains that it is not the issur melakha that precludes tefillin of Chol Ha-moed, but rather its kedushat ha-yom (sanctity). Therefore, just as one does not put on tefillin on Shabbat and Yom Tov, one does no put on tefillin on Chol Ha-moed. Interestingly, this is also the practice of many Chassidim, based upon the ruling of the Ari zl (see Kaf Ha-chaim 31:6). This became the standard practice of all Jews in Eretz Yisrael.
While there are clearly many variables in determining whether or not to wear tefillin on Chol Ha-moed, as we have demonstrated, the status, nature, and source of the issur melakha on Chol Ha-moed may certainly play a role in this question.
Next week, we will discuss the prohibitions of laundering and taking haircuts on Chol Ha-moed.