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Moed Katan, 10


QUESTION: The Gemara says that conducting business on Chol ha'Mo'ed is prohibited, but if it is necessary in order to prevent a loss (Davar ha'Aved), then it is permitted. The Yerushalmi adds that if a caravan comes to town, selling a certain commodity, and it is going to leave before the end of the festival, then one is permitted to purchase the commodity from the caravan on Chol ha'Mo'ed, for this is also considered a Davar ha'Aved. The RAMBAM (Hilchos Yom Tov 7:23) rules in accordance with this Yerushalmi, that one is permitted to buy from and sell to a caravan that comes to town, which is going to leave before the end of the festival, if they are offering an especially good deal.

The case of the Yerushalmi is a situation in which one does not stand to *lose* anything by not doing business. Rather, he might not *make a profit* if he does not buy or sell from the caravan on Chol ha'Mo'ed. The Heter to engage in work for this type of Davar ha'Aved seems to be contradicted by numerous Gemaras. We never find that *not making a profit* is called a Davar ha'Aved. On the contrary, the Gemara here says that Ravina delayed selling his merchandise until after Chol ha'Mo'ed. If it was permitted to sell on Chol ha'Mo'ed to assure a profit, why did he wait? In addition, the Gemara later (11a) relates that a river dried up, leaving a valley full of fish. The Gemara rules that taking the fish to store for after the festival is prohibited, unless one could eat them on the festival itself. Why is it prohibited, if the person will lose a profit if he does not collect and store all of the fish?

More generally, the Mishnah (2a) states that one may not water a Beis ha'Ba'al, even though watering that type of field will cause it to bring forth more, and larger, fruit, enabling him to make more of a profit. The Mishnah states that it is prohibited to water a field for that purpose, for the purpose of Harvachah, gaining a profit. Making a larger profit is not considered a Davar ha'Aved.


(a) The RAMBAN, cited by the Nimukei Yosef and others, says that the Yerushalmi does not mean that one may do business with the caravan that comes to town. Rather, it means that if one needs a particular item *for himself* and the caravan is selling it, then one is permitted to buy it if they are selling it for less than what he would pay for it after Chol ha'Mo'ed. It is considered a Davar ha'Aved, because one will have to pay more money for the object after the festival, and thus he would be losing money if he does not buy it now. However, it is *not* permitted to buy something on Chol ha'Mo'ed merely to sell it later at a higher price in order to make a profit. That is prohibited because it is certainly not a Davar ha'Aved.

(b) The RAMACH (in Hagahos to the Rambam) says that conducting business (as opposed to working a field) does not involve so much exertion. Therefore, one is permitted to exert that small amount of Tircha on Chol ha'Mo'ed even for a profit. Collecting the fish, though, is prohibited, because it involves a large amount of Tircha.

What about the case of Ravina, who refrained from selling his merchandise on Chol ha'Mo'ed? Perhaps the Ramach learns that in Ravina's case, he was not certain that the price he was being offered during Chol ha'Mo'ed would be better than the deal he could get after the festival. The case of the Yerushalmi, though, is when it is clear that the deal being offered during Chol ha'Mo'ed is better than that which will be offered after Chol ha'Mo'ed. The market price is stable, whereas in Ravina's case, the price of the commodity fluctuated.

The Nimukei Yosef asks that this will not answer the case of watering a Beis ha'Ba'al, which does not involve much Tircha but is still prohibited. (Perhaps the Ramach holds like Rashi on the Rif on 2a, who says that when there is no Tircha involved whatsoever, it is indeed permitted to do an act for Harvachah like watering a Beis ha'Ba'al. See Insights to 2:2).

(c) The ROSH quotes the RA'AVAD who says that in the case of the fish that were found in the dried up river bed, it was not a question of doing business, but it was a windfall -- a literal "Metzi'ah." For a pure profit such as a Metziah, one is not allowed to work on Chol ha'Mo'ed. It is only permitted to work for business transactions, which are not pure profit but where some loss would be involved if the transactions were not conducted. Since one will have to buy the commodity at some point, buying it today in order to get it at a lower price, instead of buying it after the festival when it will be more expensive, is considered preventing a loss of money. In the case of a Metzi'ah, though, if one does not take it during Chol ha'Mo'ed, he will not get it all, but he is not losing anything, since he was not otherwise planning on buying the object after the festival. Since one had no expectation of acquiring such a Metzi'ah, not getting it is not a loss. However, one did expect to buy the commodity in order to conduct business, and thus he was expecting the price to be low at some point, at which time he would buy the commodity. Hence, not taking advantage of that price is considered a loss.

(See BEIS YOSEF OC 539, MISHNAH BERURAH 539:24, and PRI MEGADIM in Mishbetzos Zahav 539:4. According to the reasoning of the Ra'avad it seems that conducting business transactions on Chol ha'Mo'ed is only permissible for someone whose main livelihood is that involvement; if he has another source of livelihood, it would not be permitted, because such a person is not constantly anticipating a lower price; see BI'UR HALACHAH 539, DH v'Afilu, and ARUCH HA'SHULCHAN 539:16.)

(d) The RA'AVAD cited by the Rosh, Nimukei Yosef, and Magid Mishnah gives another answer. He says that there are two different forms of work that are prohibited on Chol ha'Mo'ed. First, Avodas Karka, working the land, is prohibited because the Torah (or the Rabanan) commanded that Melachah not be done on Chol ha'Mo'ed. Second, business transactions are Asur, but not because they involve Melachah. Rather, they are Asur because they are "Uvdin d'Chol," weekday activities. That type of Isur is suspended for Harvachah, in order to make a profit. An actual Melachah, though, is not permitted for the sake of making a profit.

HALACHAH: The SHULCHAN ARUCH (OC 539:5) rules that if a caravan or boat comes to town offering an especially good deal, it is permitted to buy merchandise from them. This Heter applies only if it is an exceptionally good deal, which will not be easy to find again after the festival passes. If, however, it is a good deal which is relatively common, then one may not take advantage of it and buy (or sell) during Chol ha'Mo'ed.

Even if the deal is relatively common, it is permitted to sell if there is a likelihood that if he does not sell during Chol ha'Mo'ed, the price will drop so much that not only will he not gain a profit, but he will suffer a loss of his initial principle investment. Even if there exists a possibility that he might lose part of his principle, it is permitted. (BI'UR HALACHAH)

Even if the deal is relatively common and one will not lose the initial investment if he does not sell during Chol ha'Mo'ed but he will only lose a profit, it is permitted to sell on Chol ha'Mo'ed if one does not have cash at his disposal to purchase his Yom Tov and Chol ha'Mo'ed needs. If, by selling this item, he will have more cash and be able to buy what he needs for the festival, it is permitted.

Also, a wholesale merchant ("Tagar," as opposed to a retailer or storekeeper), who buys and sells with a constant turnover rate, is permitted to sell his items privately within his home. For him, to lose a cycle of buying and selling is a Davar ha'Aved since it will interrupt his constant source of livelihood, and therefore it is permitted for him to conduct his business in private (REMA OC 539 4 and the MISHNAH BERURAH -- see MAGEN AVRAHAM and BI'UR HALACHAH regarding whether the Heter of a wholesale merchant doing work in private applies also to a storekeeper). The BI'UR HALACHAH quotes the ELIYAH RABAH who says that if a person fears that he might lose his business if he closes his store on Chol ha'Mo'ed while the non-Jews keep their stores open, and as a result the customers think that the Jewish store is unreliable, then perhaps one may be lenient to keep his store open and to buy and sell on Chol ha'Mo'ed. However, he is still not allowed to do any Melachah, such as cutting fabric to measure or making jewelry. (This is based on the RA'AVAD in (d) above, that all forms of Harvachah that do not involve Melachah are permitted.)

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