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Moed Katan, 12

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


OPINIONS: Rav Chama permitted the "Avungeri" of the Reish Galusa to work on Chol ha'Mo'ed. He said that since they do not receive an actual wage, but they just eat from the table of the Reish Galusa, they may work on Chol ha'Mo'ed. Who are these "Avungeri," and what type of Melachah did Rav Chama permit them to do on Chol ha'Mo'ed? Were they Jews doing a type of Melachah which is permitted on Chol ha'Mo'ed, or were they Nochrim doing Melachah which a Jew may not do on Chol ha'Mo'ed?
(a) The NIMUKEI YOSEF and the RITVA (in his first explanation) says that the Avungeri were Nochrim doing Melachah which a Jew may not do on Chol ha'Mo'ed.

However, the Ritva rejects this explanation because the Gemara says that "Rav Chama permitted the Avungeri to work," which implies that the Avungeri were asking the question. If they were non-Jewish laborers, the Gemara should have said that Rav Chama permitted the *Reish Galusa* to have the Avungeri work for him (since, obviously, the Nochrim would not have been asking a Halachic inquiry themselves).

(b) The RITVA cites RABEINU YEDIDYAH who says that the Avungeri were Jews doing a type of Melachah which is permitted on Chol ha'Mo'ed (such as a Ma'aseh Hedyot). Why, though, would such 'Melachah be prohibited if they were receiving a wage? The Melachah itself is permitted! From here we learn that even a type of Melachah which is permitted on Chol ha'Mo'ed may *not* be done if one is paid for it (since that is Uvda d'Chol). This is also the explanation of the ROSH.

HALACHAH: The SHULCHAN ARUCH (OC 542:1) rules like the Ritva and Rosh (b) and permits a Jew to do a type of Melachah which is Mutar (such as Ma'aseh Hedyot, or Tzorech Mo'ed) only when he is not receiving a wage. If the Jewish worker is very poor and does not even have money to buy food, then the Jewish employer may certainly hire him and pay him a wage on Chol ha'Mo'ed (OC 542:2).

The REMA (OC 542:1), based on the KOL BO (see, however, BI'UR HALACHAH) permits paying a set wage to a Jewish worker to do a Melachah that is necessary for a Davar ha'Aved on Chol ha'Mo'ed (the Bi'ur Halachah also rules leniently with regard to paying a Jew to do a Melachah which is needed for Ochel Nefesh). However, it is preferable to hire a non-Jew to do the work than to have a Jew work on Chol ha'Mo'ed (MISHNAH BERURAH 542:5, SHA'AR HA'TZION 542:8), unless the Jewish worker has no money with which to buy food, in which case he may certainly be hired to do work on Chol ha'Mo'ed, as mentioned above.


OPINIONS: The Gemara relates that Rav Huna harvested his field on Chol ha'Mo'ed. His son Rabah questioned his conduct from the Beraisa which says that harvesting a field on Chol ha'Mo'ed is prohibited (unless one has nothing else to eat). Rav Huna answered that the Beraisa is a minority opinion, for it is expressing the opinion of Rebbi Yosi.

The Gemara asks how can Rav Huna say that the Tana of the Beraisa is Rebbi Yosi? Rebbi Yosi maintains that a Melachah that is permitted to be done on Chol ha'Mo'ed does not need to be done with a Shinuy, while the Beraisa says that if one must harvest his field on Chol ha'Mo'ed because he has nothing else to eat, he may do so "as long as he does not use cows to thresh." According to Rebbi Yosi, it should be permitted to thresh in the normal manner, with cows, since he does not require a Shinuy! The Gemara answers that "since every day we do not thresh with cows, not threshing with cows on Chol ha'Mo'ed is not a Shinuy." Hence, the Beraisa *is* Rebbi Yosi, and the reason why one may not thresh with cows is not because he requires a Shinuy, but because "even on other days (that are not Chol ha'Mo'ed) one does not always thresh with cows."

The Rishonim suggest different ways of understanding the Gemara.

(a) RABEINU CHANANEL, RASHI, and most Rishonim explain that there are two different types of Shinuy. The first type is a Shinuy, or change, from the way that this act is normally done. Rebbi Yosi does not require such a Shinuy when doing Melachah on Chol ha'Mo'ed. The second type of Shinuy is refraining from doing the act in a manner in which people do it when they want to have exceptional results. Even Rebbi Yosi requires this Shinuy. He only permits the Melachah to be done in a *normal* manner; he does not permit it to be done in an *exceptional* manner.

Since threshing with cows (as opposed to a stick -- NIMUKEI YOSEF) achieves outstanding, exceptional results, one must make a Shinuy from that manner of threshing and thresh without cows on Chol ha'Mo'ed.

(b) The RAMBAM (Hilchos Yom Tov 7:6, 8:4) gives a different explanation for the type of Shinuy that Rebbi Yosi requires. The Rambam explains that there is a fundamental difference between the Heter to do Melachah for a Davar ha'Aved, and the Heter to do Melachah when the person has nothing to eat.

In the case of a Davar ha'Aved, it is permitted to do a Melachah without a Shinuy according to Rebbi Yosi, because the Rabanan did not include such Melachah in the category of prohibited Melachah on Chol ha'Mo'ed. In contrast, a Melachah permitted to be done for someone who has nothing to eat *does* fall into the category of prohibited Melachah on Chol ha'Mo'ed, but the Rabanan made an exception and permitted this person to do the Melachah since he has nothing to eat. Since it is a Melachah which everyone else may not do, the person who is permitted to do it must do it with a Shinuy. That is why the person who has nothing to eat must harvest with a Shinuy and not use cows (see Kesef Mishnah and Lechem Mishnah there). Since no one else is threshing and it is a Heter given specifically to this person, he must use a Shinuy. (See LECHEM MISHNEH Hilchos Yom Tov 7:6.)

The Rambam appears to have had a different Girsa in our Gemara. Perhaps his Girsa was similar to that of the DIKDUKEI SOFRIM. When the Gemara explains why cows may not be used even according to Rebbi Yosi, instead of saying "since *every day* we do not use cows for threshing, not threshing with cows on Chol ha'Mo'ed is not a Shinuy," the Girsa of the Dikdukei Sofrim (and some Rishonim) reads, "since *all of the people* do not use cows for threshing," (and omits the word Ha'idna "Nami" Lav Shinuy Hu). Thus, the Gemara is saying that since all other people (who do not lack what to eat) may not harvest their fields now, on Chol ha'Mo'ed, this Melachah remains in the category of prohibited Melachah and the person who has nothing to eat must make a Shinuy when he harvests his field. (The word "Ha'idna" is the end of the *previous* phrase; in addition, the Rambam probably had the word "l'Ayei" [it is true] instead of "Lav," so that the phrase reads "*it is indeed* necessary to have a Shinuy" -- M. Kornfeld)

QUESTION: The Mishnah states that it is permitted to bring in one's fruit on Chol ha'Mo'ed if he fears that it might be stolen. The Gemara adds that it must be done in a private, discreet manner ("b'Tzin'a").

Why does it have to be done b'Tzin'a? The Mishnah seems to permit it because of Davar ha'Aved, to prevent it from being stolen. Why does this act of preventing a loss need to be done b'Tzin'a, when we find no other Melachah that is permitted for Davar ha'Aved that needs to be done b'Tzin'a?


(a) The RITVA explains, quoting the RAMBAN, that in this case, the source of the potential loss is *external* to the object itself (thieves might come and steal the object), in contrast to a case where the potential loss is internal (the object will spoil). As such, the potential loss is not as evident, since there is no way of seeing in the object any sign of a loss. Since it is not immediately evident that the Melachah is being done to prevent a loss, and it can be done easily b'Tzin'a without adversely affecting the outcome of the Melachah, it must be done b'Tzin'a.

(b) The ME'IRI and the MAGID MISHNAH (7:3) cite the RAMBAN, but they understood his words slightly differently than the Ritva. They explain that in the case of the fruit left outside, it is a Safek Davar ha'Aved. The potential loss might not occur, and therefore bringing the fruit inside must be done b'Tzin'a.

(c) The MORDECHAI (#855) writes that all Melachos done on Chol ha'Mo'ed for a Davar ha'Aved must be done b'Tzina. (He adds that it might be permitted to do it in public if it is being done *for the sake of the festival*, l'Tzorech ha'Mo'ed.)

HALACHAH: The DARCHEI MOSHE (OC 638) cites this Mordechai, but does not mention it in the Shulchan Aruch. The SHULCHAN ARUCH (OC 638:2) mentions the requirement of "b'Tzin'a" only for the act of bringing in one's fruit (not like the Mordechai).
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