Rabbi Stern notes that the third Perek, אֵלּוּ מְגַלְּחִין, on which we will now embark, provides the basis for many of our contemporary laws regarding אבילוּת (mourning). אֵלּוּ מְגַלְּחִין has an enigmatic history, with some Rabbinic authorities for many years having suggested that it be bypassed since it would be an “עין הרע” to learn it. Reb Yehuda HaChasid on the other hand quoted שׁלמה המלך who said that it was better to come from a בּית אָבֵל than a בּית מִשְׁתֶה, and it is meritorious to become conversant with the issues of אבילוּת before-the-fact. The laws of אבילוּת however aren’t covered until דף טז עמוד ב, Before we get there, the opening of the פּרק begins by elaborating on one of the themes from the previous פּרק, listing categories of people who are exempt from prohibitions against cutting hair and laundering clothes on חול המוֹעד due to extenuating circumstances.
וְאֵלּוּ מְגַלְּחִין בַּמּוֹעֵד: הַבָּא מִמְּדִינַת הַיָּם וּמִבֵּית הַשִּׁבְיָה, וְהַיּוֹצֵא מִבֵּית הָאֲסוּרִין, וְהַמְנוּדֶּה שֶׁהִתִּירוּ לוֹ חֲכָמִים, וְכֵן מִי שֶׁנִּשְׁאַל לְחָכָם וְהוּתַּר, וְהַנָּזִיר וְהַמְּצוֹרָע מִטּוּמְאָתוֹ לְטהֳרָתוֹ.
And these individuals may shave and cut their hair on חול המוֹעד: One who arrives from overseas on חול המוֹעד; one who is released from a house of captivity on חול המוֹעד; one who comes out of prison on חול המוֹעד; one who had been ostracized and therefore prohibited from cutting his hair, and the Sages released him from his decree of ostracism on חול המוֹעד; similarly the נָּזִיר who had vowed not to cut his hair and requested to be dissolved of his vow, being released from his נְזִירוּת on חול המוֹעד, as well as the leper who must shave his entire body during חול המוֹעד in order to leave his state of ritual impurity. Since these people were not able to cut their hair on ערב יום טוֹב, they are permitted to do so during חול המוֹעד. And as the Mishnah continues, the same categories essentially apply to laundering one’s clothes as well.
The instances above involve people about whose circumstances the public would likely be aware. These are events about which there is often a “buzz” in the community. But what if someone lost something very dear to them, which is a personal circumstance, that nevertheless resulted in them being totally consumed in looking for the lost item. Would that person be permitted to take a haircut on launder clothes during חוֹל המועד? The Gemara poses that question:
בָּעֵי רַבִּי זֵירָא: אָבְדָה לוֹ אֲבֵידָה עֶרֶב הָרֶגֶל, כֵּיוָן דַּאֲנִיס — מוּתָּר, אוֹ דִלְמָא כֵּיוָן דְּלָא מוֹכְחָא מִילְּתָא — לָא? Rabbi Zeira asks: If one lost an item on ערב יוֹם טוֹב and he was busy searching for it and had no time to cut his hair or launder his clothes before יוֹם טוֹב began, can one say that since he was a victim of circumstances beyond his control, which prevented from taking care of these matters prior to the יוֹם טוֹב, he is permitted to cut his hair and launder his clothes on חול המוֹעד? Or perhaps since it is not clearly evident to others that he failed to cut his hair or launder his clothes due to unavoidable circumstances, he is not permitted to perform these actions during חול המוֹעד.
A brief bit of background before showing how the Gemara addresses this question. There is a stenciling process which allows someone to put artistic designs on breads. It was done back in Talmudic times, and continues to be used by artisans to this day:
אָמַר אַבָּיֵי, יֹאמְרוּ: כל הַסְּרִיקִין אֲסוּרִין, סְרִיקֵי בַּיְיתּוֹס מוּתָּרִין – Abaye said, in answer to this question, that there is a principle of the Sages that applies here. They prohibited the baking of decorated Syrian cakes for Passover, lest people tarry in their preparation of these elaborate cakes and the cakes become leavened. When Baitos ben Zunen wished to prepare the cakes in a way that would not lead to a violation of any prohibition, such as the rapid application of a stamp or stencil or mold shown above, the Sages nevertheless prohibited it. They explained that were they to permit him to do so, others would say: All the decorated Syrian cakes are forbidden, but the Syrian cakes of Baitos are permitted? This teaches that the Sages do not permit exceptions when the reason for leniency is not clearly evident, like in the case of one who was busy looking for a lost item.
What about the person who has only one tunic (medieval shirt)? May he wash it during חול המוֹעד? Apparently yes, because his belt attached to his tunic would signify that he has only one item of clothing, and it’s therefore apparent why he would get a waiver on laundering during חול המוֹעד. We see another overarching principle recurring here, that appearances matter. Further, it seems like social media was as pervasive in Talmudic times as ever even pre-electronic communication. Take for example the next scenario in the Gemara which discuss the difference in permissibility of cutting one’s hair during חול המוֹעד after returning from travel abroad, depending on whether the purpose of travel was for business or pleasure. If he left merely to tour, there was no reason he couldn’t have cut his hair before leaving and therefore he shouldn’t cut his hair during חול המוֹעד; but if he was compelled to travel for whatever reasons. that is another matter. ArtScroll cites the anticipated question: if we’re lenient about one who travels abroad for business, why wouldn’t we be concerned that onlookers will mistakenly assume that all travelers, even tourists, should get a free pass on the Chol HaMoed haircut? Ah … “a person’s reason for going abroad is usually public knowledge”. And you thought you had nosey neighbors?
Turning to דף יד עמוּד ב, we find the case of the קטן whose relative passes away. He is not obligated in אבילוּת, but nevertheless we do קריעה on his clothes (a tear on one’s shirt or jacket lapel) because of עגְמַת נֶפֶשׁ – so that others who will see him experience feelings of grief. Once again, public appearances are paramount.
We then transition to an even more famous dictum, which balances the obligation of an individual against the obligation of the community: אָבֵל אֵינוֹ נוֹהֵג אֲבֵילוּתוֹ בָּרֶגֶל, שֶׁנֶּאֱמַר: ״וְשָׂמַחְתָּ בְּחַגֶּךָ״.
A mourner does not practice הלכוֹת אבילוּת on יוֹם טוֹב, as it is stated: “And you shall rejoice in your Festival”. The complete פּסוּק in פּרשׁת ראה is:
וְשָׂמַחְתָּ֖ בְּחַגֶּ֑ךָ אַתָּ֨ה וּבִנְךָ֤ וּבִתֶּ֙ךָ֙ וְעַבְדְּךָ֣ וַאֲמָתֶ֔ךָ וְהַלֵּוִ֗י וְהַגֵּ֛ר וְהַיָּת֥וֹם וְהָאַלְמָנָ֖ה אֲשֶׁ֥ר בִּשְׁעָרֶֽיךָ׃
There are two possible scenarios here, as Rabbi Stern notes at the 26 minute mark of the video: either the individual was an אביל prior to חול המוֹעד and has to discontinue אבילוּת, or he became an אביל during חול המוֹעד and the onset of his אבילוּת is deferred. In either case, the עֲשֵׂה of וְשָׂמַחְתָּ֖ בְּחַגֶּ֑ךָ to the public override the עֲשֵׂה of אבילוּת to the individual. As the Gemara states:
אִי אֲבֵילוּת דְּמֵעִיקָּרָא הוּא — אָתֵי עֲשֵׂה דְרַבִּים וְדָחֵי עֲשֵׂה דְיָחִיד. וְאִי אֲבֵילוּת דְּהַשְׁתָּא הוּא — לָא אָתֵי עֲשֵׂה דְיָחִיד וְדָחֵי עֲשֵׂה דְרַבִּים. If it is a mourning period that had already begun at the outset of the Festival, the positive mitzvah of rejoicing on the Festival, which is incumbent upon the community, comes and overrides the positive mitzvah of the individual regarding mourning. And if the mourning period began only now because the deceased died during the Festival, the positive mitzvah of the individual does not override the positive mitzvah of the community.
At the 30 minute mark of the video, Rabbi Stern highlights the top תוֹספוֹת titled עשה דיחיד which reads as follows:
משמע דאבילות איכא עשה דאורייתא מדלא קאמר ודחי עשה דרבנן והאי דקאמר לעיל (מועד קטן דף יא:) לא מבעיא ימי אבלו דרבנן היינו עשיית מלאכה דנפקא לן (לקמן מועד קטן טו:) באסמכתא מוהפכתי חגיכם לאבל אבל גוף האבילות דאורייתא מיהו נראה לי דשמחת הרגל נמי דרבנן ושמחת היינו בשלמי שמחה כדאיתא בחגיגה (ח.)
The Gemara could have given the answer that the reason אבילות is suspended is because it is דרבנן (there is no פּסוּק about אבילות in the Torah), and that is pre-empted by the simcha of the Yom Tov which by the פּסוּק we cited which makes it דאורייתא. Which leads תוֹספוֹת to suggest that in our day, without a בּית המקדשׁ and the simcha that revolves around that, both the obligation to be happy on Yom Tov and the obligation of mourning are דרבנן. As Rabbi Stern notes, the רמב״ם vehemently disagrees with this categorization of what is דאורייתא vs. דרבנן, and that is going to have practical halachic implications.