Siman 539

We say in Moed Katan (10b): Rava said: Any merchandise at all is forbidden... but in a case of financial loss, it is permitted. And so too in the Yerushalmi (chapter two, halacha 3): Lost merchandise is permitted... This caravan is permitted on the Moed... meaning that a case of financial loss is permitted regarding commerce, or when caravans arrive, as this is something that is not common and is like a case of financial loss. He further permitted there when after the festival he would need to reduce from the principal—he may sell on Chol HaMoed. He further permitted there to buy veils for the needs of the Moed. He further permitted, for example, if one is pressed for Yom Tov expenses, and when he sells the merchandise he will be able to spend generously for the needs of the Moed. And all these matters will be explained in this siman with the help of Heaven.

It must be understood: Since business dealings even on Shabbat and Yom Tov are not from the Torah but rather from the words of the Prophets, as it is written, "from pursuing your affairs," and they are among the Shabbat restrictions—what did the sages see to forbid them on Chol HaMoed? For even according to the one who holds that the labor of Chol HaMoed is from the Torah, as I wrote in siman 530—it is obvious that business dealings are not included in the Torah prohibition. Furthermore: what is this that Rava said, that any merchandise at all is forbidden? For even complete labors are permitted in a small amount, as will be explained in siman 540, such as cracks in a roof and door hinges, where it will be explained there that it is permitted to repair them on the Moed. And all the more so any small amount of buying and selling, and how could they be more stringent regarding a rabbinic restriction than regarding a Torah labor?

And it appears to me: that because the essence of the Moed was only given to Israel to eat, drink, and rejoice, and to engage in Torah, as it says there in the Yerushalmi: Rabbi Ba bar Mammel said: If I had someone who would count with me... I would permit that they perform melacha on Chol HaMoed... Did they only forbid performing melacha on Chol HaMoed so that they would eat and drink, and toil in Torah? Yet they eat and drink and act frivolously. Meaning: with types of laughter and jesting. And according to this, if they were to permit them to engage in commerce—it would follow that they would be preoccupied all day, and they would not have time to engage in Torah just like on all weekday days. Therefore, the sages were compelled to forbid commerce to them. And they were compelled to forbid even the slightest amount, for commerce has no limit, and if you permit the slightest amount—it follows that it will drag on further. And in this, it is worse than melacha. And it appears to me: even though the Yerushalmi calls it "melacha," nevertheless its intent is regarding commerce. For in that sugya the Yerushalmi did not mention melacha at all, but rather matters of commerce. And it calls it "melacha" because this too is a weekday labor. (And this is settled for the poskim who hold that the melacha of Chol HaMoed is from the Torah, who were questioned from this Yerushalmi, as I wrote in siman 530. And according to what I have written, it works out well.)

The Rosh, of blessed memory, wrote there that they forbade business dealings because of the exertion, see there. And his intention is not that this reason is sufficient, for behold, many exertions are performed on the Moed. Rather, his intention is that through this exertion—one will be nullified from the joy of Yom Tov, as the Rosh himself explained in a Responsum (Klal 23). This is his wording (in Siman 4 there): For in the purchasing of merchandise there is great exertion in the exact evaluation of the transaction. And from his preoccupation—he will be prevented from the joy of Yom Tov. Thus far his words; behold, this is the primary reason. And included in the joy of Yom Tov is to engage in Torah, for even on Yom Tov we require "half for Hashem," and all the more so on the Moed. And if he is involved in business dealings—he will not enjoy the joy of Yom Tov, and he will also not engage in Torah.

Therefore, all merchandise is forbidden, even any small amount, whether to buy or to sell. And even if one lent money on the condition that they give him afterwards wine or other merchandise in payment of his debt, in order to profit—he cannot go and claim them, unless they are not available after the Moed, for it would be a davar ha'aved if he does not go during Chol HaMoed to their location and claim them. But regarding a standard loan, when one lent money to his fellow to pay him back money—it is permitted to claim it during Chol HaMoed to collect his money. And it goes without saying to collect his money from the non-Jew to whom he lent, for there is no toil in this. And also the essence of a loan, meaning to lend during Chol HaMoed—likewise is not similar to trade, as will be explained. And even if he has a mashkon—he may claim his debt.

There is one who says that regarding what we permitted on the condition that they give him merchandise, that when they are not available after the Moed he may sue them—this is specifically when he did not intentionally delay his work for the Moed, in that he was unable to sue them beforehand (Magen Avraham, subsection 2). In my humble opinion, it appears that regarding the collection of a debt, the concept of intentionally delaying one's work for the Moed is not applicable at all. For certainly everyone, when they are able to sue for their debt, sues and is not lazy. Furthermore: is it as if immediately upon suing he pays him? And this is only applicable to labor, and similarly to the sale of pledges, where if he was able to sell before the Moed and intentionally delayed to sell them during the Moed—this is certainly forbidden. But not regarding the collection of a debt. (The Magen Avraham brought proof from the Maharik regarding the sale of pledges, see there. And what is the connection between this and that?)

And there is one who says that this fact that he cannot go and claim from them—this is specifically when he needs to litigate with him in a beit din, which constitutes excessive exertion, or to another city. But in this city, and without litigation and a judge—he may claim the merchandise (Taz, subsection 1). And such is the common custom. And nowadays, they claim even for litigation, and not only regarding a loan but even regarding merchandise, because the ruin of debts is very common now, and the people are becoming impoverished, and it is like a matter of imminent loss (ibid.).

And know that there are those among the early authorities who wrote that the prohibition of business dealings is only in public. However, in private, such as in a house—it is permitted (Beit Yosef in the name of the Rokeach, the Yereim, and the Ran). Their reasoning appears to me to be: since the reason for the prohibition is so that he will not be distracted from the joy of the Yom Tov and the study of Torah, as I have written, therefore when it is in private—he cannot be distracted much. But the Rambam, the Rosh, the Tur, and the Shulchan Aruch—did not distinguish in this (ibid.). Nevertheless, it appears like their words, and this is what our teacher, the Rema, wrote in section 1, and this is his wording: However, if a great profit happens to come his way during the Moed—he may sell in private, and he shall spend for the joy of the Yom Tov more than what he had intended to spend. Thus far his words. And the same law applies to buying (Magen Avraham, subsection 3).

If one sold merchandise to his fellow before the Moed – there is one who forbids demanding its payment during the Moed, unless the buyer is a person who is not usually found in the seller's location and happened to be there during Chol HaMoed, for this is like a davar ha'aved. However, our teacher, the Beit Yosef, in section 3 disagrees with this, for since he converted the money into a debt before the Moed – it is like a loan, and it is permitted to collect from him during Chol HaMoed even if he dwells with him in the same city. And so too it is permitted to complain in the court of the arkaot for the sake of his debts that are permitted to be demanded, if he cannot collect them in a beit din, as I have written in Choshen Mishpat siman 26. And so too it is permitted for him to perform a conversion of his debts during the Moed in order to secure them, that is to say: to make an accounting and record them on a secure paper, so that he will be certain that he has the power to collect them, for all of this is like a davar ha'aved.

It has already been explained that to sell merchandise in a case of a loss—it is permitted. And what is called "a loss"? It says there in the Yerushalmi: that anything where after the festival he would need to reduce from the principal—it is permitted to sell it. But if he will not lose from the principal—it is forbidden to sell it. And the Rosh wrote (ibid.) that in any event, if he sells it now he will have money in profit, and he will spend more for the joy of the festival—it is permitted to sell it in any case, since from this the joy of the festival will increase. And this too is in the Yerushalmi there. (The Rivash explains that a reduction of profit is also considered a loss, see Beit Yosef.)

Our teacher, the Beit Yosef, wrote regarding this in section 4, and this is his wording: It appears to me that these things were only said regarding one who has few funds, and is concerned about them, to spend so much for the joy of Yom Tov. Whereas if he had ample funds, he would spend more. But one who has ample funds to spend for the joy of Yom Tov as much as he desires, and does not intend to spend that much – we do not permit him to sell so that he may spend more. Thus far his words. And this only applies to one who is exceedingly wealthy, who is exceptionally rich. But an ordinary wealthy person is not in the category of "spending as much as he desires," and it is permitted for him if he adds to the joy of Yom Tov (Taz, subsection 2). And especially nowadays, when everything is considered only as one's basic livelihood (ibid.).

And if it is a matter that is not always available after the Moed, such as ships or caravans that arrived or are seeking to depart, and they sold cheaply or bought dearly—it is permitted to buy and sell even if not for the purpose of his personal use, but rather to conduct business and profit. The same law applies to fairs fixed from time to time, and even from city to city it is permitted to travel in such a case. And so too a special market day that occurs once or twice a year, such as those that occasionally occur during the time of Chol HaMoed Pesach which they call "Krasny Torg"—it is also considered like a fair, and it is permitted to conduct business on it (Taz, subsection 3, in the name of the Rashal). But on an ordinary market day, as in most places where there is a market day once a week—it is not permitted to buy and sell on the market day that falls within the Moed, for this is not a "davar ha'aved," since if he does not sell in this market—he will sell on the market day after the Moed. And this is specifically when he knows that he will not lose from the principal, but otherwise—it is permitted to sell (Magen Avraham, subsection 7).

Sellers of spices, or vegetables, and anything that does not keep, and likewise fruits and other types of food – they open their shops in their usual manner and sell in public, because everyone knows that they are for the needs of the Moed. And sellers of types of fruit where it is not known that they are for the needs of the Moed, or sellers of clothing and vessels where some are for the needs of the Moed and some are not for the needs of the Moed, and if they were not at all for the needs of the Moed it would be completely forbidden, but since there are those who buy for the needs of the Moed – they sell in private for the needs of the Moed. How so? If the shop was open to a corner or to an alleyway – he opens in his usual manner. And if it was open to the public domain – he opens one door and locks one door, for most often a shop has two doors. And on the eve of the final Yom Tov of the festival of Sukkot, he brings out and adorns the market with fruits for the sake of the honor of Yom Tov. And even for the needs of the second Yom Tov of the final Yom Tov – it is permitted to buy, and we do not say that since we are experts in the fixing of the month it turns out that he prepares from Chol HaMoed for a weekday. For it is not so, for ultimately it is Yom Tov. And this which requires privacy – this is regarding a shopkeeper. But a householder who sells for the needs of the Moed – does not require privacy (Magen Avraham, subsection 11). And anything that is not for the needs of the Moed – is completely forbidden. (See Magen Avraham, subsection 12, that even if the shop is closed and the door is open – it is forbidden, see there. And I do not know how it is closed and open.)

And know that regarding what was explained in section 12, that what is incidental is permitted and a regular market day is forbidden—our teacher, the Rema, wrote on this in section 5, and this is his wording: And a merchant who buys from this one and sells to that one, and repeatedly buys and sells—it is permitted, for it is a davar ha'aved. Thus far his words. And it is not understood at all: for if so, all shopkeepers are thus, for they buy and sell, and repeatedly buy and sell. And if so, shops would be permitted, for this is a davar ha'aved for everyone (Magen Avraham, subsection 8). And there is one who answered that for a merchant it was only permitted in a house, and not in a shop. And the shopkeeper is also permitted in his house, and only in a shop is it forbidden (ibid.). And it is difficult to say so, for a merchant is typically in the market in public. Furthermore: if it is due to the reason of davar ha'aved, where do we find that a davar ha'aved requires privacy?

And even more puzzling to me is the custom of our province, that all the shopkeepers sit during Chol HaMoed just as they do throughout the year. And we have already cried out like a crane, but there is no one who pays us heed. And only a few out of many are careful regarding this. And what permission is there for this? Therefore, it appears in my humble opinion that the matter is as follows: that the complete labors of craftsmen are entirely forbidden, whether by Torah law or rabbinic law, as I wrote in siman 530. However, buying and selling was only forbidden for commerce that is not a daily constant, and for which there is no damage if one sells it on another day. And for this, the conditions explained in this siman are required. And without them, it is forbidden. And that which we learned: "Sellers of fruit, garments, and vessels sell in private" — this does not refer to shopkeepers, but rather to one who sells his fruit from his fields, and his garments and vessels that he made or bought, and he has no loss whether he sells them today or after the Moed. For when he sells them, he will not have others to sell. And similarly, sellers of spices or vegetables are dealing with such a case. But one whose livelihood is from his shop, and from it he sustains himself day by day — behold, you have no greater "lost matter" (davar ha'aved) than this. And if he locks his shop, he will certainly reduce his expenditures for the joy of Yom Tov. And this is explicitly stated in the Yerushalmi that we cited, that for the sake of increasing the honor of Yom Tov, it is permitted to buy and sell. And for us it is clear that if the shops are locked, they will diminish the joy of Yom Tov. And so it is implied in the Tosefta, chapter two, as it is taught: Shops open to a colonnade — one opens and locks in his usual manner; open to the public domain — one opens one and locks one. And in the Gemara at the end of the second chapter, it cited this Baraita regarding the matter of perfume sellers, see there. But in the Tosefta there is no mention of all this, but rather simply "shops," see there. And it implies that it deals with all shops, and as we said, that anyone whose sustenance is from the shop, it is like a "lost matter" and the need for the joy of Yom Tov. And these are the very words of our teacher, the Rema, regarding a merchant, since his livelihood is through this. And one must only warn them to open only one door if they are in a complete public domain. (So it appears in my humble opinion to find merit for the community of Israel. And also the Eliyah Rabbah and the Machatzit HaShekel found merit.)

A find that involves exertion—it is forbidden to exert oneself and search for it. For example, a river that washed up fish onto its bank—it is forbidden to collect them in order to pickle them and eat them after the Moed. But if he can eat from them during the Moed, such that the pickling is sufficient for them in a day or two—it is permitted, even though they will also remain for after the Moed. And one should not ask: Behold, when a caravan arrived we permitted it, because it is like a davar ha'aved. And all the more so in a case like this, where they will all be lost if he does not take them now. For it can be said: we only permitted it regarding merchandise, for this is the way of commerce and the cancellation of commerce is a loss, but not regarding the catching of fish and their salting. And it appears in my humble opinion that if his commerce is in fish—it is permitted, for to him this is like any other commerce.

The Tur wrote: One who lends to his fellow on a condition, and the borrower gives him an object and stipulates with him that if he does not repay him at the end of eight days it shall be acquired by him—there are those who permit it, for the primary acquisition is after the appointed time. But it does not seem proper to permit it, for if so, all commerce would be permitted, as they would use artifice to do so. Thus far his words. And both opinions were brought in the Shulchan Aruch, section 7. And there is one who says that this is specifically regarding his fellow, but regarding a non-Jew in such a case, even the Tur admits that it is permitted, for regarding him artifice is not applicable (Bach). And all admit that if the non-Jew paid the Israelite wine or other merchandise for his debt on Chol HaMoed—it is permitted to receive it from him, for it is like a matter of loss.

And so too, one who needs to buy wine at the time of the vintage for the entire year, for his own drinking and for the drinking of the members of his household, and not for any commerce, and if the time of the Moed passes he will not find this wine to buy, or at the cheap price for which he buys it now—it is considered a davar ha'aved, and it is permitted to buy it. And similarly regarding other foods and drinks. And it is permitted to buy barrels, and to repair them and coat them with pitch during Chol HaMoed, as it is like a davar ha'aved, provided that he did not intentionally delay his work for the Moed, for previously he was not yet able to buy. And so too, more than enough for his drinking and the drinking of the people of his household for the entire year—he shall not buy, but he does not need to be exacting in precision regarding this. And for commerce—it is forbidden, unless it is something that is not available afterward to profit from, and when he buys now he will profit from this, for then even for commerce it is permitted, as this is literally a davar ha'aved. (So it is implied from the words of the Rema, section 9. And the practical difference between for drinking and for commerce is that for drinking, even if he could obtain other wine—nevertheless he desires this one, and regarding commerce this does not apply. And so too regarding a purchase for commerce, even if afterward he would buy at a slightly higher price than now, he should take it at the higher price. But regarding drinking this does not apply. Examine it and you will find it simple.)

One may not purchase houses and stones, slaves and animals, except for the needs of the moed: or for the needs of the seller who has nothing to eat, or for the needs of the laborer who transports these things and has nothing to eat. The details of this law will be explained in siman 542. And such is the law regarding all things that one wishes to buy, as the Tosafot wrote (13a, beginning with the words "One may not," see there), and the Ramban and the Rosh there. Therefore, they wondered at our teacher, the Rema, in section 12, who wrote that specifically these are forbidden because there is publicity in their purchase, but other vessels it is the custom to purchase them in private. Thus far his words. And it is true that the Maggid Mishneh wrote so in the seventh chapter, law 22, but this is against all our teachers. And they wrote that therefore he wrote "it is the custom," meaning: but his opinion does not agree with this (Magen Avraham, subsection 16, and Eliyah Rabbah, subsection 20). Therefore, in a place where there is no custom—it is forbidden (ibid.). And from a non-Jew everything is permitted, and so it is taught in the Tosefta, first chapter, see there. And to lend to a non-Jew with interest, for those who are accustomed to borrow from him—it is permitted, as it is a davar ha'aved that he might borrow from another. And this is not like merchandise where it is the way to be very exacting, and there is much toil in it. And similarly, those who are not accustomed to borrow from him—it is permitted if he will not take interest from him for this week, or if he takes it and spends it on the joy of Yom Tov more than his usual habit. And it is permitted to take a guarantee on the moed for a loan that he will make after the moed, for this is not an act of anything. And the loans of moneychangers, who engage regularly in lending and exchange—it is forbidden on Chol HaMoed, for this is a complete business. And it is not permitted except in a case of davar ha'aved. And see what I wrote in section 15. And any purchase for the needs of the moed—it is permitted.