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Hol Hamo’ed and Work

August 29, 2013

The Mishna Berura has a nice introduction to the laws of Hol Hamo’ed, noting that the nature of the issur melacha, the extent of prohibited labors on Hol Hamo’ed, is the subject of a dispute among the Rishonim (Orah Hayim 530). There, the Bei’ur Halacha notes in passing that both the Shulhan Aruch and the Rema rule that the issur melacha is of biblical origin, following the view of the Rif and others, and even though both Maimonides and the Rosh ruled that the issur melacha is of rabbinic origin.

I have always felt that the way the argument flows in the talmudic sources, those who would argue that that the issur is of biblical origin have the lower hand, and are instead forced to explain away the proofs of the other side, some of which I will now present:

1. All the Torah sources that describe Hol Hamo’ed make it clear that the issur is limited to the first and last day of the festivals, implying that the intermediate days have no such issur. (Exodus 12:16; Leviticus 23:7-8, 35-36; Numbers 28:16-25, 29:12 and 35)

2. Claiming that Hazal then instituted some sort of prohibition and defined its parameters fits the model used elsewhere throughout the Talmud, whereas claiming that God ordained the issur but left it up to the sages to define is hard to fit into the usual talmudic models.

3. As Rabbi Bar Hayim said, a cursory glance at standard Jewish practice on Hol Hamo’ed indicates that there is no Biblical issur. If there had been any biblical issur, then Hazal would have done to some extent to Hol Hamo’ed what they did to the Sabbath and festivals: institute further restrictions so that individuals not come to violate the Torah prohibitions. Instead, the halachic sources, starting with the Mishna, list exceptions to the general prohibitions (Mo’ed Qatan 1:1). That is, whatever prohibitions exist seem themselves to be rabbinic prohibitions.

4. Many have pointed out that there seems to be a connection between a day’s issur melacha and the obligation thereon to lay tefillin. Days that have such an issur have no obligation of tefillin, whereas days when melacha is permitted there have an obligation to lay tefillin. The ruling of many Rishonim based on the talmudic sources is that tefillin are to be worn on Hol Hamo’ed, and the Beith Yosef himself (to Tur Orah Hayim 31 and Laws of Tefillin 4:10) testifies that such was the practice throughout the Jewish world, seemingly indicating that it was once taken for granted that the issur melacha of Hol Hamo’ed was of rabbinic origin. (One argument advanced in the Rishonim is that the mitzwoth of dwelling in the sukka or avoiding hametz and eating matza on Passover make the days of Hol Hamoed an oth, a token of the covenant, and the word used to describe circumcision, tefillin and the Sabbath. What makes Yom Tov also an oth? It must be that which it has in common with the Sabbath, namely an issur melacha. The Talmud itself does not advance the argument that these other commandments can create this token.)

5. This is my own argument. The Gemara in Megilla (21a) delineates the number of men called to read from the Torah on special occasions. On the Sabbath, (even if simultaneously another holiday,) seven are called, on Yom Kippur (on a weekday) six are called, on Yom Tov (including Rosh Hashana but not on a Sabbath) five are called, on Rosh Hodesh and Hol Hamo’ed four are called, and on weekdays including fast days and rabbinic holidays, three are called. Now, the basic understanding of say, Maimonides, is that the issur melacha is unique to each type of day. On the Sabbath, all 39 forms of labor are prohibited, and the most severe potential penalty for violation of the issur is death. On Yom Kippur, the same 39 forms are forbidden, but the most severe form of punishment is “only’ excision, and on Yom Tov, including Rosh Hashana, many of the 39 labors are actually permitted, and the most severe penalty is lashes. It should be noted that despite the fact that we can not truly judge which commandments are more important or which of the punishments at the courts’ disposal are worse, the sages did work with the model that among the various death penalties, some are indicated for worse crimes than others, and that lesser offenses are punished with excision, and the least are punished with lashes. It is also important to know that following this model, even though Yom Kippur has the additional afflictions, the prohibitions against certain physical needs and comforts, Yom Kuppur is still not as holy as the sabbath.

Now, it is given that Rosh Hodesh in and of itself entails no issur melacha. (Some may refrain from melacha as a matter of custom, but that is still just a custom.) If it were true that there was some sort of biblical issur melacha on Hol Hamoed, then should not the days of Hol Hamoed be on a level of holiness somewhere between that of Rosh Hodesh and Yom Tov? We see from this clear law of the Talmud that the sages did not believe that Hol Hamoed was actually holier than Rosh Hodesh, or else they would have ordained that five men be called to the Torah on Hol Hamoed, six be called on Yom Tov, seven on Yom Kippur, and eight on the Sabbath!

Next, we will look at the arguments for the issur melacha being of biblical origin.

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