THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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1) HALACHAH: THE PROHIBITION OF MELACHAH ON CHOL HA'MO'ED
OPINIONS: The Gemara brings numerous verses as sources that Melachah is
prohibited on Chol ha'Mo'ed. The Gemara concludes that the laws of Melachah
on Chol ha'Mo'ed cannot be as stringent as Yom Tov, and even though the
verses do not mention which Melachos are prohibited, the Torah endowed to the
Chachamim the prerogative to determine what Melachos are permitted and what
Melachos are prohibited.
Is the prohibition of Melachah on Chol ha'Mo'ed an Isur d'Oraisa or
d'Rabanan? There is evidence for both:
The simple understanding, from the context of the Gemara, is that it is an
Isur d'Oraisa, because the Gemara makes no mention that these verses are only
an Asmachta. Moreover, earlier in the Gemara, Rebbi Yochanan asked what the
verse means when it calls Sukos, "Chag ha'Asif." He says that it cannot mean
the Chag on which Asifah is done, because Asifah is a Melachah which is
prohibited to do during the entire festival, both on Yom Tov and on Chol
ha'Mo'ed. Rather, "Chag ha'Asif" must mean the Chag which comes during the
*season* of Asifah.
From Rebbi Yochanan's words, it seems clear that he maintains that Melachah
is prohibited mid'Oraisa. Similarly, Reish Lakish makes the same inference
from the words "Chag ha'Katzir" with which the Torah refers to Shavuos. If
the Isur of Melachah on Chol ha'Mo'ed is only mid'Rabanan, then how can Rebbi
Yochanan and Reish Lakish assert that the verse cannot be referring to doing
Asifah or Ketzirah on Chol ha'Mo'ed? It must be that they understand the Isur
of Melachah on Chol ha'Mo'ed to be mid'Oraisa.
This also seems to be explicit from the Gemara in Moed Katan (11b), where the
Gemara says that the Isur of Melachah on Moed is more stringent than the Isur
of Melachah during Aveilus, because the former is Asur mid'Oraisa while the
latter is not.
On the other hand, there is evidence that seems to show that the Isur of
Melachah on Chol ha'Mo'ed is only mid'Rabanan. The Gemara in Moed Katan (13a)
says that the Isur of Melachah on Chol ha'Mo'ed is because of Tirchah (to
prevent excessive exertion during Chol ha'Mo'ed), but when a loss is
involved, the Rabanan permitted doing Melachah. This clearly shows that the
Isur is only mid'Rabanan, for otherwise, how could the Rabanan permit a
Melachah d'Oraisa? In addition, the Yerushalmi (Moed Katan 2:3) quotes one
Amora who said that "if my colleagues would join me, I would permit Melachah
on Chol ha'Mo'ed. The only reason it was prohibited was 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 frivolous during
the festival." How could this Amora suggest permitting Melachah on Chol
ha'Mo'ed if the Isur is mid'Oraisa?
Third, RABEINU TAM asks that if the Isur of Melachah on Chol ha'Mo'ed is
mid'Oraisa, how could it be Asur in some circumstances and Mutar in other
circumstances (such as Davar ha'Aved)? We never find a Melachah that applies
only in a partial fashion!
Among the Rishonim, we find various opinions with regard to the status of the
Isur of Melachah on Chol ha'Mo'ed.
(a) TOSFOS (citing RABEINU TAM and RIVAM), and the ROSH (Moed Katan 1:1) rule
that the Isur of Melachah on Chol ha'Mo'ed is only mid'Rabanan. All of the
verses cited in the Gemara as sources for the Isur are Asmachtas.
HALACHAH: The BI'UR HALACHAH (beginning of OC 530) writes that the main
difference between whether the Isur is mid'Oraisa or mid'Rabanan it is what
to do in the case of a doubt. If the Isur is mid'Oraisa, then one must be
stringent (because Safek d'Oraisa l'Chumra), while if it is mid'Rabanan, one
may be lenient (because Safek d'Rabanan l'Kula). The Bi'ur Halachah concludes
that since so many Rishonim maintain that the Isur of Melachah on Chol
ha'Mo'ed is mid'Oraisa, one should not be lenient in the case of a doubt
except where it involves a great necessity.
When our Gemara says that the verses of "Chag ha'Asif" and "Chag ha'Katzir"
cannot mean that Asifah and Ketzirah are done on Chol ha'Mo'ed, it means that
the Tana'im would not have quoted verses as Asmachtas for the Isur d'Rabanan
of Melachah if there was another verse that states clearly that Melachah is
permitted on Chol ha'Mo'ed. (See TAZ in YD 117, OC 588, and CM 1 regarding
whether the Rabanan have the authority, in general, to prohibit what the
Torah explicitly permits.) Alternatively, the RITVA (Moed Katan 2a) cites
those who answer that our Gemara is expressing the exclusive opinion of Rebbi
Yochanan and Reish Lakish. The other Amora'im, though, do not accept the view
that Melachah on Chol ha'Mo'ed is Asur mid'Oraisa.
How does this view address the Gemara in Moed Katan (11b) which says that the
Isur of Melachah on Chol ha'Mo'ed is mid'Oraisa? Tosfos explains that when
the Gemara says that Melachah on Chol ha'Mo'ed is Asur mid'Oraisa, it means
that it is prohibited by the Rabanan with an Asmachta in the Torah (but not
that it is actually mid'Oraisa), whereas Melachah during Aveilus is Asur
mid'Rabanan without any Asmachta.
A number of Rishonim agree that Melachah on Chol ha'Mo'ed is only Asur
mid'Rabanan, such as the BEHAG cited by the Ritva (Moed Katan 2a), the SEMAG,
and the TASHBATZ.
The Rishonim write that this is also the opinion of the RAMBAM (Hilchos Yom
Tov 7:1), who writes that Melachah on Chol ha'Mo'ed is prohibited in order
that those days not be treated like regular weekdays that have no Kedushah.
The Rambam continues and says that if a person transgresses and does Melachah
on Chol ha'Mo'ed, he is punishable with Malkus d'Rabanan, because the Isur is
This is the way the MAGID MISHNAH, RAMBAN (Avodah Zarah 22a), and the RITVA
(Moed Katan 2a) understand the Rambam.
(b) Other Rishonim state that Melachah on Chol ha'Mo'ed is Asur mid'Oraisa.
Among these Rishonim are RASHI (Moed Katan 11b, DH Ela Afilu), the RIF (Moed
Katan 2a, according to the Girsa of the TUR OC 536 in the Rif), RAMBAN and
RASHBA in Avodah Zarah (22a) and RITVA Mo'ed Katan 2a.
How do these Rishonim address the proofs of Tosfos that the Isur is only
mid'Rabanan? Tosfos proved that the Isur is mid'Rabanan from the Yerushalmi
which quotes an Amora who said that he would have annulled the Isur of
Melachah, and from the Gemara in Moed Katan (13a) which says that the
Chachamim did not enact the Isur in certain situations because it is only
because of Tircha. The RAMBAN (in beginning of Moed Katan) explains that
there are certain Melachos which the Torah did not prohibit on Chol ha'Mo'ed,
and it is to those Melachos which the Yerushalmi and the Gemara in Moed Katan
(13a) are referring.
Which Melachos are Asur mid'Oraisa and which are Asur mid'Rabanan, according
to the Ramban? The Ramban (ibid.) says that any Melachah not needed for a
Davar ha'Aved (financial loss) or for Tzorech ha'Mo'ed (necessary for the
festival) is Asur mid'Oraisa. A Melachah which is needed for a Davar ha'Aved
or for Tzorech ha'Mo'ed is Mutar mid'Oraisa, but if it involves a Meleches
Uman (professional labor) then it is Asur mid'Rabanan. Likewise, if it is
needed for a Davar ha'Aved but involves excessive Tircha, it is Asur
The Ramban in Avodah Zarah further limits the Isur d'Oraisa and says that the
Isur d'Oraisa applies only to Melachah which involves toiling in the field in
a laborious manner ("Meleches Karka d'Tirchasa Merubah"). Every other type of
Melachah is only Asur mid'Rabanan.
How do these Rishonim address the other proof of Tosfos, who asked that
Melachah must be Asur only mid'Rabanan because we never find a Torah
prohibition that applies only partially, in some instances and not others?
Tosfos proved that since the prohibition of Melachah on Chol ha'Mo'ed does
not apply to Davar ha'Aved, it must be that the Isur is not d'Oraisa.
The TUREI EVEN and others ask how can Tosfos ask such a question. We see an
obvious example of a Torah prohibition that has only partial application in
the case of Melachah on Yom Tov, where Melachah for food preparation
(Meleches Ochel Nefesh) is permitted, but doing the same Melachah not for the
sake of food preparation is prohibited! Even though the logic of "Mitoch"
(Beitzah 12a) applies and permits a Melachah that is normally done for Ochel
Nefesh to be done for a different purpose, it is only permitted if there is a
necessity for that Melachah on Yom Tov. However, baking bread or cooking food
for the day after Yom Tov is Asur mid'Oraisa and is punishable with Malkus
(Pesachim 46b)! We see, therefore, that the Melachah of cooking, for example,
is Asur mid'Oraisa on Yom Tov when it is done for the next day, but is
entirely permitted when it is done for Yom Tov! (According to Beis Shamai in
Beitzah (12a), even if one cooks food for Yom Tov but not for the sake of
eating it, but for another purpose, it is Asur mid'Oraisa, since Beis Shamai
does not agree with the logic of "Ho'il.")
The MITZPEH EISAN explains that Tosfos means that on Yom Tov, the Heter to do
Melachah for Ochel Nefesh is not because the Torah's prohibition of Melachah
does not extend to food preparation. Rather, it is saying that there *is* a
prohibition (to cook, bake, etc.), but that the need for Simchas Yom Tov
(according to Beis Shamai, this is the need for eating, and according to Beis
Hillel, this is any need of Yom Tov) *overrides the Isur* and permits the
Melachah to be done. It is not a case of a Melachah that is permitted
entirely in one instance (for Ochel Nefesh) and prohibited in another (for
non-Ochel Nefesh purposes); rather, it would have been prohibited in *all*
instances, but there the Torah permits it under certain circumstances in
order to accomplish a different Mitzvah. In the case of Melachah on Chol
ha'Mo'ed, though, there is no reason that a Davar ha'Aved should override an
Isur d'Oraisa, since preventing a financial loss is not a Mitzvah like
Simchas Yom Tov. The Torah should not recognize the need of a Davar ha'Aved
as a reason to permit a Melachah, because it involves no benefit of a
Mitzvah. Therefore, Tosfos' question remains; how could the Torah permit a
Melachah in one instance and prohibit it in another?
If this is Tosfos' intention, then perhaps we can answer his question as
follows. The HAGAHOS MAIMONIYOS (Hilchos Yom Tov 6:40) says that doing
Melachah for the sake of a Davar ha'Aved indeed involves a Mitzvah. The
reason why Melachah is Asur on Chol ha'Mo'ed is in order to ensure that
people involve themselves in Torah learning with Simchah. Doing a Melachah
for a Davar ha'Aved is permitted so that one can study Torah with joy, for if
Melachah was prohibited in the case of a Davar ha'Aved, one's mind would be
on the financial loss that he is incurring. It is Asur to do a Melachah for a
Davar ha'Aved when the Melachah involves excessive Tircha because the Simchah
that is obtained by preventing the financial loss is lost through the
excessive exertion that is involved in doing the Melachah. According to this
understanding, it could be that the Isur of Melachah on Chol ha'Mo'ed is
mid'Oraisa, and extends even to Davar ha'Aved, but there is another factor --
studying Torah b'Simchah on Yom Tov -- which overrides that Isur and permits
Melachah to be done.
A number of Acharonim (see KEREN ORAH in Moed Katan 2a, BIRKEI YOSEF in OC
530) suggest that the RAMBAM also is of the opinion that the Isur of Melachah
on Chol ha'Mo'ed is mid'Oraisa, like the simple reading of our Gemara. When
the Rambam calls it "Divrei Sofrim," that is because he defines "Divrei
Sofrim" as anything that is not written explicitly in the Torah but is
learned through the Thirteen Attributes (Sefer ha'Mitzvos, Shoresh
ha'Rishon). The Rambam says that one is punishable only with Malkus
d'Rabanan, because the Rambam holds that one does not get Malkus d'Oraisa for
transgressing an Isur that is learned through the Thirteen Attributes, even
though the Isur is d'Oraisa (as the Rambam writes regarding the Isur of
deriving benefit from a mixture of meat and milk, which is mid'Oraisa but is
derived through the Thirteen Attributes). The Keren Orah brings support for
this position from the Perush ha'Mishnayos (beginning of Moed Katan), where
the Rambam clearly refers to the Isur of Melachah on Chol ha'Mo'ed as "Divrei
Kabalah," which he always uses to refer to an Isur d'Oraisa (a Halachah
2) "NETILAS YADAYIM" FOR CHULIN AND MA'ASER
QUESTION: The Mishnah here states that Chulin and Ma'aser require Netilas
Yadayim. The Gemara asks that the Mishnah in Bikurim, however, says that
Chulin and Ma'aser do not need Netilas Yadayim. The Gemara resolves the
contradiction by citing a Mishnah in Parah in which Rebbi Meir and the
Rabanan argue whether Netilas Yadayim is needed for Ma'aser. The Gemara
initially suggests that our Mishnah, which requires Netilas Yadayim for
Ma'aser, follows the opinion of the Chachamim in the Mishnah in Parah. (The
Gemara concludes that both Mishnayos are in accordance with Rebbi Meir, who
says that neither Ma'aser nor Chulin need Netilas Yadayim, except when
washing for a Se'udah with bread. The Mishnah in Bikurim is discussing fruit,
so it says that Netilas Yadayim is not necessary. Our Mishnah is discussing
washing for bread, and thus Netilas Yadayim is necessary -- see Chart #2 and
We see that the Chachamim in the Mishnah in Parah, who argue with Rebbi Meir,
hold that a person is not allowed to eat Ma'aser -- neither fruit nor bread -
- when he is Tamei with a Tum'ah d'Rabanan (and is a Sheni l'Tum'ah), until
he washes his hands with Netilas Yadayim. There is nothing wrong with
touching Ma'aser, the Gemara later explains, but eating it is prohibited
until after washing the hands.
Since the Chachamim discuss washing the hands in our Mishnah, it seems that
they are discussing even a Tum'ah d'Rabanan that affects only the hands, and
not the entire body. This is problematic, though, because if only one's hands
are Tamei, why do the Chachamim prohibit eating fruit of Ma'aser without
Netilas Yadayim? It would make sense if the Chachamim prohibited eating
Ma'aser when the person's entire body is Tamei d'Rabanan; the Chachamim
enacted that a person who is Tamei may not eat certain things because of
their Kedushah. Similarly, if they said that he cannot *touch* Ma'aser when
his hands are Tamei, their ruling would be clear. Touching Ma'aser with hands
that are Tamei makes the Ma'aser Tamei (or "Pasul" perhaps). But if they
prohibition is only to *eat* the Ma'aser, then if a person's body is Tahor
and only his hands are Tamei why should he be prohibited from eating fruit of
Ma'aser? The fruit does not become Tamei when he touches them; what is wrong,
then, with eating Ma'aser with hands that are Tamei?
(a) The CHAZON ISH (Machshirin 3:7, and here in Ha'a'ros to Maseches
Chagigah) explains that with regard to Chulin, we find that the Rabanan
enacted Netilas Yadayim before eating bread of Chulin because of "Serach
Terumah." Even though the bread will not become Tamei if one touches it (or
eats it) with hands that are Tamei, the Rabanan enacted an obligation of
Netilas Yadayim before eating bread because of the obligation that Kohanim
have (mid'Oraisa) to be Metaher their hands before eating Terumah. However,
the Rabanan only instituted this enactment when eating bread, and not when
touching bread or when touching or eating fruit (even though Kohanim cannot
even touch Terumah without first washing their hands).
With regard to Ma'aser as well, he explains, the Isur d'Rabanan of eating
Ma'aser without Netilas Yadayim is not due to Tum'ah, i.e. lest one be
Metamei the Ma'aser; rather, it is an enactment of Netilas Yadayim due to
"Serach Terumah," just like we must wash when eating bread of Chulin.
However, with regard to Ma'aser the Rabanan added the stringency of having to
wash when eating *fruit* as well.
(b) The ME'IRI writes that even though, normally, Chulin and Ma'aser cannot
become a Shelishi l'Tum'ah by just touching it, nevertheless, the Rabanan
enacted that it *can* become Tamei (as a Shelishi) if one touches it after
starting to *eat* it. Therefore, one's Tamei hands will indeed be Metamei the
food by touching it, but only from the time that one begins to eat it (see
(c) The TOSFOS RID explains the Gemara differently. He says that when the
Mishnah in Parah says that a person who is Tamei d'Rabanan cannot eat Ma'aser
according to the Chachamim, it only refers to when his *entire body* is
Tamei. If his hands alone are Tamei, though, then he may eat Ma'aser without
Netilas Yadayim, since the Ma'aser cannot become Tamei through being touched
by a Sheni l'Tum'ah.
(The Tosfos Rid understands that this is the Gemara's refutation of the
assertion that our Mishnah requires Netilas Yadayim for Ma'aser because it is
following the view of the Chachamim in Parah: The Gemara originally thought
that the Chachamim require Tevilah or Netilas Yadayim before *touching*
Ma'aser. Once it shows that the prohibition only applies to *eating* Ma'aser,
it is obvious that it applies only if the person's entire body is Tamei.
Therefore, it cannot be related to our Mishnah, which mentions specifically
*Netilas Yadayim* and not Tevilah.)