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Chagigah, 18

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.

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 "mi'Divrei Sofrim."

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 mid'Rabanan.

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 l'Moshe mi'Sinai).

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.

18b

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 Chart #3.)

ANSWERS:

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 next Insight).

(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.)