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Moed Katan, 11

MOED KATAN 11, 12 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.


QUESTION: The Gemara says that one may not complete the processing of olive oil during Aveilus, even though it is permitted during Chol ha'Mo'ed because of Davar ha'Aved. The Gemara says that even though doing Melachah on Chol ha'Mo'ed is d'Oraisa (or based on an Asmachta in the Torah) and Aveilus is only d'Rabanan, the Rabanan were more stringent with regard to Aveilus.

If Aveilus is only mid'Rabanan, why were they more stringent with its laws than with the laws of Chol ha'Mo'ed?


(a) The ROSH explains that the Rabanan were not really more stringent with regard to doing Melachah during Aveilus. Even though it is not permitted for the Avel himself to do Melachah during Aveilus, it is permitted the Avel to have someone else do Melachah for him (if it is a Davar ha'Aved), as the Beraisa states. Because he could have others do it for him, the Rabanan did not permit the Avel to do the work himself. In contrast, on Chol ha'Mo'ed, one cannot have someone else do the Melachah for him, because it is prohibited for *everyone* to do Melachah on Chol ha'Mo'ed!

(Even according to those Tana'im who prohibit the Avel from doing Melachah when nobody else can do it for him, the above logic may still apply Since most of the time another person can do the Melachah for him, the Rabanan did not permit the Avel to do it himself under any circumstances.)

(b) TOSFOS (12a, DH Amar, according to the RASHASH) explains that specifically because the Isur Melachah of an Avel is only d'Rabanan, the Rabanan were more stringent, in order to strengthen their decree. In contrast, the Isur Melachah of Chol ha'Mo'ed is d'Oraisa (or based on an Asmachta in the Torah), and thus it needs no Chizuk.

HALACHAH: The Poskim rule that an Avel may not do a Melachah for a Davar ha'Aved during his Aveilus, but he may have someone else do it for him, like Rav Shisha brei d'Rav Idi states in the Gemara.

1. If there is no one else to do the Melachah for him, then the RIF and RA'AVAD prohibit him from doing Melachah, like the Tana Kama of the Beraisa, who does not mention that if there is no one else available, the Avel may do the Melachah himself in private (they learn that Raban Shimon ben Gamliel is arguing with, and not explaining, the Tana Kama). The ROSH, however, suggests that we should rule leniently, in accordance with Raban Shimon ben Gamliel in the Beraisa, who says that an Avel may do Melachah in private when there is no one available to do it for him, because in matters of Aveilus, the Halachah always follows the more lenient opinion.

The REMA (YD 380:5) rules stringently, that an Avel may not do a Melachah himself even if there is no one to do it for him. However, even the Ra'avad, who represents the more stringent opinion, agrees that after the first three days of Aveilus have passed, the Avel may do Melachah in private if no one else is available, as the ROSH explains (based on the Gemara later, 21b).

2. If someone else does a Melachah for an Avel, he is not limited to doing Melachah that does not involve excessive Tircha (even though such Melachah is Asur on Chol ha'Mo'ed). Since someone else is doing the Melachah, even Tircha Yeseirah is permitted.

QUESTION: The Gemara relates that Meryon brei d'Ravin and Mar brei d'Rav Acha had a partnership in a pair of oxen. When Mar brei d'Rav Acha became an Avel, he removed his ox from the yoke so that it should not be doing work for him during his Aveilus, even though this caused his partner to lose out as well.

Rav Ashi questioned Mar brei d'Rav Acha's actions. The Beraisa states that if others were using an Avel's object for their work, then they are allowed to continue using it so during its owner's period of Aveilus; we do not require his objects to cease from doing Melachah when doing so will cause a loss to someone else. Why, then, did Mar brei d'Rav Acha take away his ox, causing his partner to suffer a loss? The Gemara answers that "Adam Chashuv Sha'ani" -- a prominent individual must be stringent upon himself, and withhold his objects from doing Melachah when he is an Avel.

The question remains, though, why should he be stringent on someone else's account? By withholding his ox from doing work, Mar brei d'Rav Acha was causing his partner to suffer a loss!


(a) The ROSH quotes the RA'AVAD who cites the Yerushalmi that says that when one partner is an Avel, both partners must close the store. The Ra'avad explains that perhaps this does not contradict our Gemara, which says that the only time they both have to refrain from work is when one of the partners is an Adam Chashuv, but otherwise, the other partner may continue to work. Our Gemara, which permits the other partner to do work, permits it only in private (b'Tzin'a), but not in public. The jointly-owned store must be closed, but the partner who is not an Avel may do work and conduct transactions in private.

According to this, when the Gemara says that an Adam Chashuv is different, it means that since one of the partners is an Adam Chashuv, everyone knows that it is his ox doing work. If he was permitted to let his ox work in order not to cause his partner a loss, it would be like doing work in public and not in private, since everyone would know that his ox is doing work. Since it cannot be done in private, even the other partner must refrain from working.

(b) The RITVA, in the name of "Yesh Omrim" (the MICHTAM) explains that when one of the partners is an Adam Chashuv and must refrain from work even though he is part of a partnership, he must compensate his partner for whatever loss the partner incurs.

(c) The RITVA further suggests that when the ox of an Adam Chashuv who is an Avel does work, it causes disgrace to the Adam Chashuv, since people will think he does not observe the laws of Aveilus properly. Therefore, even the partner is enjoined to refrain from working even though it means incurring a loss, so as not to damage the reputation of the Adam Chashuv. (The Ritva adds that this applies if the non-mourning partner is a Talmid Chacham and therefore understands the need to protect the honor of the Adam Chashuv; if he is a simple laborer, he is not expected to stop working).

HALACHAH: The RIF and RAMBAM rule like the Yerushalmi, which they take to mean that partners must close the store when one is an Avel. A jointly-owned business differs from the case of the Beraisa, where the Avel's object is leased by someone else and the lessee is permitted to do work with the object. (Even though the Beraisa also permits a sharecropper (Aris) to do work in the Avel's field [according to the understanding of the Ra'avad, see Rosh], and the sharecropper gives a percentage of his earnings to the owner of the field, there must be some difference between a partnership in business and a sharecropper. Perhaps when the partnership involves land, and not objects, it is permitted for the non-Avel partner to work during his partner's Aveilus.)

However, the SHULCHAN ARUCH (YD 380:21) rules leniently like the RA'AVAD, that the non-mourning partner *may* do Melachah in private.

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