MOED KATAN 11 - sponsored by Dr. Eli Turkel l'Iluy Nishmas his mother, Golda bas Chaim Yitzchak Ozer (Mrs. Gisela Turkel), whose Yahrzeit is 25 Av. Mrs. Turkel accepted Hashem's Gezeiros with love; may she be a Melitzas Yosher for her offspring and for all of Klal Yisrael.
1) MELACHAH DURING "AVEILUS"
The Gemara rules that an Avel may not complete the processing of olive oil during Aveilus even though he is permitted to complete it during Chol ha'Mo'ed because of Davar ha'Aved. The Gemara says that although Melachah on Chol ha'Mo'ed is prohibited mid'Oraisa (or based on an Asmachta in the Torah; see Insights to Chagigah 18:1
for an analysis of the prohibition of Melachah on Chol ha'Mo'ed) while Melachah during Aveilus is prohibited only mid'Rabanan, the Rabanan were more stringent with regard to Aveilus.
If Aveilus is only mid'Rabanan, why were the Rabanan more stringent with regard to its laws than with regard to the laws of Chol ha'Mo'ed?
(a) The ROSH explains that the Rabanan actually were not more stringent with regard to Melachah during Aveilus. Although an Avel is not permitted to do Melachah himself, he is permitted to have someone else do Melachah for him (if it is a Davar ha'Aved), as the Beraisa states. Since he could have someone else do it for him, the Rabanan did not permit the Avel to do the work himself. In contrast, on Chol ha'Mo'ed one is not permitted to have someone else do Melachah for him, because everyone is prohibited from doing Melachah on Chol ha'Mo'ed.
(Even according to the Tana'im who prohibit an Avel from doing Melachah when nobody else can do it for him, the logic of the Rosh still may 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 the Rabanan were more stringent with regard to Aveilus specifically because the prohibition of Melachah of an Avel is only mid'Rabanan. They saw the need to strengthen their decree and thus they prohibited Melachah during Aveilus under all circumstances. In contrast, the prohibition of Melachah on Chol ha'Mo'ed is mid'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 Melachah for a Davar ha'Aved during his Aveilus, but he may have someone else do it for him (as Rav Shisha brei d'Rav Idi teaches).
1. When there is nobody available to do the Melachah for him, the RIF and RA'AVAD prohibit the Avel from doing Melachah, like the Tana Kama of the Beraisa who does not say that the Avel may do Melachah himself in private when there is nobody available to do it for him. (The Rif and Ra'avad understand that Raban Shimon ben Gamliel argues with, and does not explain, the view of the Tana Kama.) The ROSH, however, suggests that the Halachah should follow the lenient view of Raban Shimon ben Gamliel in the Beraisa, who says that an Avel may do Melachah in private when nobody is available to do it for him, because in matters of Aveilus the Halachah always follows the more lenient opinion.
However, the Ra'avad agrees that after the first three days of Aveilus have passed, the Avel may do Melachah in private when nobody else can do it for him, as the Rosh explains (based on the Gemara later, 21b).
The REMA (YD 380:5) rules like the Ra'avad, that an Avel may not do Melachah himself even when there is nobody available to do it for him, unless three days of Aveilus have passed.
2. When someone else does Melachah for an Avel, he is not limited to doing Melachah which involves no excessive exertion (even though such Melachah is prohibited on Chol ha'Mo'ed). Since someone else is doing the Melachah and not the Avel, even a Melachah which involves excessive exertion is permitted.
2) A BUSINESS PARTNER WHO BECOMES AN AVEL
QUESTION: The Gemara relates that Meryon brei d'Ravin and Mar brei d'Rav Acha had a partnership in the ownership of a pair of oxen. When Mar brei d'Rav Acha became an Avel, he removed his ox from the yoke so that it would not do work for him during his Aveilus, even though his partner also suffered a financial loss as a result.
Rav Ashi questioned Mar brei d'Rav Acha's actions. The Beraisa states that when others use an Avel's objects for their work, they are allowed to continue using them during the owner's period of Aveilus. The Halachah does not require that the Avel's objects cease from doing Melachah when such a cessation from Melachah will cause a loss to someone else. Why, then, did Mar brei d'Rav Acha take away his ox if doing so would cause his partner to suffer a loss?
The Gemara answers that "Adam Chashuv Sha'ani" -- a prominent individual is different. He must be stringent upon himself and prevent his objects from doing Melachah when he is an Avel.
The question remains, however, why should even a prominent individual 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, neither partner may operate the business. The Yerushalmi seems to disagree with the Gemara here which says that the partner of an Avel is not required to suffer a loss as a result of the Avel's Aveilus unless the Avel is a prominent individual.
However, the Ra'avad explains that perhaps the Yerushalmi does not disagree with the Gemara here. When the Gemara here permits the other partner to work, perhaps it permits him to work only in private but not in public. The jointly-owned business must be closed, but the partner who is not an Avel may continue to work and conduct transactions on behalf of the partnership in private.
According to the Ra'avad's understanding, when the Gemara says that "a prominent individual is different," it means that since one of the partners is a prominent individual, everyone knows which ox belongs to him. If he would be permitted to let his ox continue to work so that his partner not suffer a loss, it would be akin to working in public and not in private, since everyone knows that it is his ox at work. Since there is no way to have his ox work in private, his partner must refrain from working.
(b) The RITVA in the name of "Yesh Omrim" (the MICHTAM) states that when one of the partners is a prominent individual and thus must refrain from work during Aveilus even though he is part of a partnership, he is obligated to compensate his partner for any loss incurred.
(c) The RITVA suggests further that when the ox of a prominent individual (who is an Avel) does work, it is a disgrace to the prominent individual because people suspect him of being negligent in the observance of the laws of Aveilus. Therefore, in order to uphold the reputation of the prominent individual, even his partner is enjoined to refrain from work (and to incur a loss). (The Ritva adds that this requirement applies only when the non-mourning partner is a Talmid Chacham and understands the need to protect the honor of the prominent individual. When the partner is a simple laborer, he is not expected to stop working.)
HALACHAH: The RIF and RAMBAM rule like the Yerushalmi which, according to their understanding, maintains that partners must close the business when one is an Avel. A jointly-owned business differs from the case of the Beraisa in which the Avel's object is leased to someone else, in which case the lessee is permitted to work with the object.
(Although the Beraisa also permits a sharecropper (Aris) to work in the Avel's field (according to the understanding of the Ra'avad; see Rosh) and to give a percentage of his earnings to the owner of the field, apparently there is a difference between a business partnership and a sharecropper agreement. When the partnership involves land and not objects, the non-mourning partner is permitted to work the land 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 work in private.