1) HALACHAH: THE PROHIBITION OF MELACHAH ON CHOL HA'MO'ED
OPINIONS: The Gemara cites numerous verses as sources that Melachah is prohibited on Chol ha'Mo'ed. The Gemara reasons that the laws of Melachah on Chol ha'Mo'ed cannot be as strict as they are on Yom Tov, and it concludes that while the verses do not mention which Melachos are prohibited on Chol ha'Mo'ed, the Torah empowered the Rabanan with the authority to determine which Melachos are permitted and which are prohibited.
Is the prohibition of Melachah on Chol ha'Mo'ed an Isur d'Oraisa or an Isur d'Rabanan?
The words of the Gemara imply 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 asks what the verse means when it refers to Sukos as "Chag ha'Asif." He says that it cannot mean that Sukos is the festival on which Asifah is done, because Asifah is a Melachah which is prohibited during the entire festival, on Yom Tov and on Chol ha'Mo'ed. Rather, "Chag ha'Asif" must mean the festival which comes during the season of Asifah. Reish Lakish makes a similar inference from the words "Chag ha'Katzir" with which the Torah refers to Shavuos. Rebbi Yochanan and Reish Lakish clearly imply that Melachah is prohibited on Chol ha'Mo'ed mid'Oraisa.
If the Isur of Melachah on Chol ha'Mo'ed is only mid'Rabanan, then Rebbi Yochanan and Reish Lakish have no reason to assert that the verse cannot refer to Asifah or Ketzirah during Sukos itself; the Melachah of Asifah or Ketzirah is permitted mid'Oraisa on Chol ha'Mo'ed. It must be that they maintain that the Isur of Melachah on Chol ha'Mo'ed is mid'Oraisa.
This also seems clear from the Gemara in Moed Katan (11b) which says that the Isur of Melachah during Chol ha'Mo'ed is more stringent than the Isur of Melachah during Aveilus, because the former is Asur mid'Oraisa while the latter is not.
However, other evidence suggests that the Isur of Melachah on Chol ha'Mo'ed is only mid'Rabanan. The Gemara in Moed Katan (13a) says that Melachah on Chol ha'Mo'ed is prohibited because of Tircha (to prevent excessive exertion during Chol ha'Mo'ed), but when a financial loss is involved the Rabanan permitted one to do Melachah on Chol ha'Mo'ed. The Gemara there clearly maintains that the Isur is only mid'Rabanan, because if it would have been mid'Oraisa the Rabanan would not have been able to permit a Melachah merely because of a financial loss.
Moreover, the Yerushalmi (Moed Katan 2:3) quotes an Amora who says, "If my colleagues would join me, I would permit Melachah on Chol ha'Mo'ed. The only reason it is prohibited is 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 frivolously during the festival." Why does 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, why should Melachah be forbidden in some circumstances and permitted in others (such as for a Davar ha'Aved)? No Melachah d'Oraisa applies in a partial manner.
Various opinions are expressed by the Rishonim with regard to the status of the Isur of Melachah on Chol ha'Mo'ed.
(a) TOSFOS (in the name of 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 the 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 clearly states that Melachah is permitted on Chol ha'Mo'ed. (See TAZ in YD 117, OC 588, and CM 1 who discuss 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 the Gemara here is expressing the exclusive opinion of Rebbi Yochanan and Reish Lakish. The other Amora'im do not accept the view that Melachah on Chol ha'Mo'ed is Asur mid'Oraisa.
How do Tosfos and the Rosh understand 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 there says that Melachah on Chol ha'Mo'ed is Asur mid'Oraisa, it means that the Rabanan prohibited Melachah on Chol ha'Mo'ed based on an Asmachta in the Torah (but not that it is actually mid'Oraisa). This is in contrast to Melachah during Aveilus, which is Asur mid'Rabanan and has no Asmachta.
A number of Rishonim agree that Melachah on Chol ha'Mo'ed is Asur only mid'Rabanan, including 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 the Rabanan prohibited Melachah on Chol ha'Mo'ed so that those days would not be treated like ordinary 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 punished with Malkus d'Rabanan because the prohibition is "mi'Divrei Sofrim."
(This is the way the MAGID MISHNEH, RAMBAN (Avodah Zarah 22a), and RITVA (Moed Katan 2a) understand the Rambam.)
(b) Other Rishonim maintain 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), the RAMBAN and RASHBA (Avodah Zarah 22a), and the RITVA (Moed Katan 2a).
How do these Rishonim address the proofs of Tosfos that the prohibition is only mid'Rabanan? Tosfos proves that the prohibition is mid'Rabanan from the Yerushalmi which quotes an Amora who says that he would have annulled the Isur of Melachah, and from the Gemara in Moed Katan (13a) which says that the Rabanan did not prohibit the Melachah in certain situations because the prohibition is only because of Tircha. The RAMBAN (beginning of Moed Katan) answers 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) refer.
Which Melachos are Asur mid'Oraisa and which are Asur mid'Rabanan, according to the Ramban? The Ramban writes that any Melachah not needed for a Davar ha'Aved (financial loss) or Tzorech ha'Mo'ed (necessity of the festival) is Asur mid'Oraisa. A Melachah which is needed for a Davar ha'Aved or Tzorech ha'Mo'ed is Mutar mid'Oraisa, unless it involves a Meleches Uman (professional labor), in which case it is Asur mid'Rabanan. Similarly, 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 it 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 Asur only mid'Rabanan.
How do these Rishonim address the other proof of Tosfos, that Melachah must be Asur only mid'Rabanan because there is no Melachah which applies only partially, in some instances and not in others? Tosfos asserts 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 challenge Tosfos' proof. An obvious example of a Melachah d'Oraisa which has only partial application is Melachah done on Yom Tov for food preparation (Meleches Ochel Nefesh), such as cooking. When such a Melachah is done for the sake of food preparation, it is permitted, but when the same Melachah is done for a purpose other than food preparation, it is prohibited! Even though the principle of "Mitoch" (Beitzah 12a) applies and permits a Melachah which is normally done for Ochel Nefesh to be done for a different purpose, the principle of "Mitoch" permits the Melachah only when it is done for some necessity of Yom Tov. Baking bread or cooking food for the day after Yom Tov is Asur mid'Oraisa and is punishable with Malkus (Pesachim 46b)! The Melachah of cooking is an example of a Melachah which has partial application; when it is done for the next day it is Asur mid'Oraisa, but when it is done for Yom Tov it is entirely permitted. (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, the act is Asur mid'Oraisa. Beis Shamai does not agree with the principle of "Mitoch.")
The MITZPEH EISAN explains that Tosfos means that on Yom Tov, the allowance to do Melachah for Ochel Nefesh is not because the Torah's prohibition of Melachah does not apply to food preparation. Rather, there is a prohibition (to cook, bake, etc.), but the need for Simchas Yom Tov (according to Beis Shamai, or any need of Yom Tov according to Beis Hillel) overrides the prohibition and permits the Melachah to be done. It is not a case of a Melachah which is permitted entirely in one instance (for Ochel Nefesh) and prohibited in another (for purposes other than Ochel Nefesh); rather, the prohibition applies in all instances, but the Torah suspends the prohibition under certain circumstances in order to enable the person to fulfill a different Mitzvah. In contrast, in the case of Melachah on Chol ha'Mo'ed there is no reason why a Davar ha'Aved should override an Isur d'Oraisa; 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 valid grounds to permit a Melachah to be done, because the need of a Davar ha'Aved involves no Mitzvah. Therefore, Tosfos' question remains: how can the Torah permit a Melachah in one instance and prohibit it in another?
If this is the intent of Tosfos' question, perhaps the other Rishonim would answer his question as follows. The HAGAHOS MAIMONIYOS (Hilchos Yom Tov 6:40) writes that Melachah for the sake of a Davar ha'Aved does involve a Mitzvah. The reason why Melachah is forbidden on Chol ha'Mo'ed is 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; if Melachah would be prohibited in the case of a Davar ha'Aved, one's mind would be on the financial loss that he sustains. A Melachah for a Davar ha'Aved which involves excessive Tircha is forbidden because the Simchah one obtains by avoiding the financial loss is lost through the excessive exertion that the Melachah involves. According to this understanding, it is possible that the Isur of Melachah on Chol ha'Mo'ed is mid'Oraisa and extends even to a Davar ha'Aved, but there is another factor -- studying Torah with Simchah on Yom Tov -- which overrides that Isur and permits Melachah to be done.
A number of Acharonim (see KEREN ORAH to Moed Katan 2a, BIRKEI YOSEF to OC 530) suggest that the RAMBAM also maintains that the Isur of Melachah on Chol ha'Mo'ed is mid'Oraisa, like the straightforward reading of the Gemara. When the Rambam calls the Isur "Divrei Sofrim," he does not mean that the Isur is mid'Rabanan. Rather, "Divrei Sofrim" refers to any law that is not written explicitly in the Torah but is learned through the Thirteen Attributes through which Torah law is derived (Sefer ha'Mitzvos, Shoresh ha'Rishon). The Rambam says that one is punished only with Malkus d'Rabanan, because the Rambam maintains that one does not receive Malkus d'Oraisa for the transgression of a prohibition derived through the Thirteen Attributes, even though the prohibition is mid'Oraisa (as the Rambam writes with regard to 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 cites 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," a term which the Rambam 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 most obvious practical difference between whether the Isur is mid'Oraisa or mid'Rabanan is what to do in the case of a doubt. If the Isur is mid'Oraisa, one must be stringent (because Safek d'Oraisa l'Chumra). If it is mid'Rabanan, one may be lenient (because Safek d'Rabanan l'Kula). The Bi'ur Halachah concludes that since 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 a great necessity is involved.
2) "NETILAS YADAYIM" FOR CHULIN AND FOR MA'ASER
QUESTION: The Mishnah states that Chulin and Ma'aser require Netilas Yadayim. The Gemara asks that the Mishnah in Bikurim, however, states 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 about whether Netilas Yadayim is needed for Ma'aser. The Gemara initially suggests that the Mishnah here, which requires Netilas Yadayim for Ma'aser, follows the opinion of the Chachamim in the Mishnah in Parah. (The Gemara concludes that both Mishnayos follow the view of Rebbi Meir, who says that neither Chulin nor Ma'aser needs Netilas Yadayim, except when one eats bread of Chulin or Ma'aser in a meal. The Mishnah in Bikurim which says that Netilas Yadayim is not necessary for Chulin or Ma'aser refers specifically to fruit. The Mishnah here refers to bread of Chulin and Ma'aser, and thus it says that Netilas Yadayim is necessary. See Charts.)
It is evident that the Chachamim in the Mishnah in Parah, who argue with Rebbi Meir, maintain that a person is not allowed to eat Ma'aser (fruit or bread) when he is Tamei with a Tum'ah d'Rabanan (and he is a Sheni l'Tum'ah) until he washes his hands with Netilas Yadayim. One may touch Ma'aser without Netilas Yadayim, as the Gemara later explains, but he may not eat it until after he washes his hands.
Since the Chachamim in the Mishnah here discuss Netilas Yadayim, washing the hands, their ruling apparently applies even to a Tum'ah d'Rabanan which affects only the hands (and not the entire body). This is problematic, however, because if only one's hands are Tamei, why do the Chachamim prohibit one from eating fruit of Ma'aser without Netilas Yadayim? It would have been logical for the Chachamim to prohibit one from eating Ma'aser when his 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, it would have been logical for the Chachamim to decree that one who touches Ma'aser with Tamei hands renders it Tamei (or Pasul). What, though, is the logic behind their prohibition against eating fruits of Ma'aser with Tamei hands and a Tahor body?
(a) The CHAZON ISH (Machshirin 3:7, and cited in He'oros to Maseches Chagigah) explains that the Chachamim enacted that one must wash his hands before he eats bread of Chulin because of "Serach Terumah." Although the bread does not become Tamei when one touches or eats it with Tamei hands, the Chachamim enacted an obligation of Netilas Yadayim before he eats bread because of the obligation that applies to Kohanim (mid'Oraisa) to make their hands Tahor before they eat Terumah. However, the Chachamim instituted this enactment only for eating bread, and not for touching bread, touching fruit, or eating fruit (even though Kohanim may not even touch Terumah before they wash their hands).
Similarly, the Chachamim's prohibition against eating Ma'aser without Netilas Yadayim is not due to Tum'ah (i.e. lest one make the Ma'aser Tamei). Rather, it is an enactment of Netilas Yadayim due to "Serach Terumah." One must wash his hands when he eats Ma'aser just as he must wash when he eats bread of Chulin. However, for Ma'aser the Chachamim added that one must wash even when he eats fruit of Ma'aser (and not just bread).
(b) The ME'IRI writes that although Chulin and Ma'aser normally cannot become Tamei as a Shelishi l'Tum'ah through contact with one's Tamei hands, nevertheless the Chachamim enacted that it can become Tamei (as a Shelishi) when one touches it after he starts to eat it. Accordingly, one's Tamei hands indeed render the food Tamei through touch, but only from the time that he begins to eat it (see following Insight).
(c) The TOSFOS RID explains the Gemara differently. He says that when the Mishnah in Parah says that a person who is Tamei mid'Rabanan may not eat Ma'aser according to the Chachamim, it refers only to when his entire body is Tamei. If his hands alone are Tamei, then he may eat Ma'aser without Netilas Yadayim since the Ma'aser cannot become Tamei through contact with a Sheni l'Tum'ah.
(The Tosfos Rid understands that this is the way the Gemara refutes the assertion that the Mishnah requires Netilas Yadayim for Ma'aser because it follows the view of the Chachamim in Parah. The Gemara originally assumed that the Chachamim require Tevilah or Netilas Yadayim for touching Ma'aser. Once it proves that the prohibition applies only to eating Ma'aser, it is obvious that it applies only if the person's entire body is Tamei. Consequently, that prohibition cannot be related to the prohibition of the Mishnah here, which mentions specifically Netilas Yadayim and not Tevilah.)