From Parshat Tzav & Pesach Vol.10 No.27
Date of issue: 14 Nissan 5761 -- April 7, 2001

 

Tefillin on Chol Hamoed
by Rabbi Howard Jachter

Introduction
There are three prevalent customs regarding wearing Tefillin during Chol Hamoed. Some do not wear Tefillin, others wear Tefillin and recite the Beracha (albeit quietly), and others compromise and wear Tefillin but do not recite the Beracha. In this issue, we will explain the basis for each of these practices.

Why We Should Not Wear Tefillin on Shabbat and Yom Tov
The Gemara (Menachot 36) presents a dispute whether one should wear Tefillin on Shabbat and Yom Tov. The accepted opinion is that we do not wear Tefillin on Shabbat and Yom Tov. The Gemara presents two Braitot that present reasons why we should not wear Tefillin on these days.

The first Braita cites a Pasuk (Shemot 13:10), which states that one should wear Tefillin Miyamim. Literally, this means “from among the days.” The Braita explains that this means that on some days we wear Tefillin and on others we do not. Shabbat and Yom Tov are days that we do not wear Tefillin.

The second Braita notes that the Torah in a number of places writes that Tefillin serve as an Ote, a sign. The Braita explains that one wears Tefillin only on those days when one requires an Ote. One does not wear Tefillin on Shabbat and Yom Tov because Shabbat and Yom Tov constitute an Ote.

Next, we shall present the arguments regarding wearing Tefillin on Chol Hamoed. We shall focus on the arguments that Tosafot (Moed Katan 19a s.v. Rabi Yosi) presents.

The Argument for Not Wearing Tefillin on Chol Hamoed
The Behag (cited by Tosafot Moed Katan 19a s.v. Rabbi Yosi) rules that we are forbidden to wear Tefillin on Chol Hamoed. Many Rishonim agree with the Behag’s assertion. These Rishonim include the Rambam (as interpreted by the Kesef Mishna to Hilchot Yom Tov 7:13), the Rashba (Teshuvot 1:690), and the Ri (cited by the Haghot Maimoniot Hilchot Tefillin 4:9). These authorities believe that if Yom Tov is excluded from wearing Tefillin, Chol Hamoed should also be excluded from wearing Tefillin. They believe that Chol Hamoed constitutes a Yom Tov, and therefore constitutes an Ote.

Rav Yosef Dov Soloveitchik (Shiurim L’zeicher Abba Mori Zal 1:118-120) further explains this opinion. The Rav notes that there are four components of the Kedushat Hayom (the holiness of the day) of a Yom Tov. These are the Korban Mussaf, the unique Mitzvot of the day (such as the Mitzva to eat in a Sukkah or to avoid Chametz), the obligation on individuals to bring the Korbanot of the Festivals (Re'iya, Chagiga, Shalmei Simcha), and the prohibition to engage in Melacha (forbidden labor). All four components pertain to Chol Hamoed. Although certain Melacha is permitted on Chol Hamoed, the Rav explains that fundamentally, the prohibition to perform Melacha applies to Chol Hamoed. However, the Gemara (Chagiga 18a) explains that the Torah permits us to engage in certain Melacha on Chol Hamoed. Hence, Chol Hamoed enjoys the full status of Yom Tov. The Rav cites Rav Chaim Soloveitchik’s assertion that Chol Hamoed is as holy as any Yom Tov. There merely exists permission to engage in certain Melacha on Chol Hamoed.

The Argument for Wearing Tefillin on Chol Hamoed
Many Rishonim, on the other hand, believe that one must wear Tefillin on Chol Hamoed. These authorities include the Rosh (Hilchot Tefillin 16), Or Zarua (1:589), and the Maharam of Rothenberg (cited by the Mordechai). They argue that Chol Hamoed does not constitute an Ote, since we are permitted to perform certain Melacha on Chol Hamoed. This argument is particularly cogent according to the Rishonim who believe that on a Torah level all Melacha is permited on Chol Hamoed and the restrictions that exist in regard to performing Melacha on Chol Hamoed were instituted by Chazal.

Moreover, they argue that the word in the Torah Miyamim excludes only Shabbat and Yom Tov where the prohibition to engage in Melacha profoundly distinguishes these days from all other days. A ramification of the permission to perform certain labor on Chol Hamoed is that the difference between Chol Hamoed and other days is not pronounced.

These Rishonim cite as proof to their position the fact that the Gemara permits writing Tefillin on Chol Hamoed. They argue that Chazal would not have permitted writing Tefillin on Chol Hamoed had there been no use for the Tefillin on Chol Hamoed. The other group of Rishonim argues that this passage in the Gemara represents the rejected opinions that believe that one may wear Tefillin on Shabbat and Yom Tov.

The Compromise View — Tefillin and No Beracha
Both sides of the arguments presented by the Rishonim are compelling. Thus, we already find Rishonim that advocate adopting a compromise view — to wear Tefillin but to refrain from reciting the Beracha. The Tur (Orach Chaim 31) notes that there are a number of Rishonim who are uncertain whether one must wear Tefillin on Chol Hamoed and therefore advocate wearing Tefillin but refraining from reciting a Beracha. These authorities include the Ritva (Eruvin 96a), the Smak (153), and the Meiri (Moed Katan 18b). The advantage of this compromise is that one avoids violating very serious transgressions. Chazal write that not wearing Tefillin (see Rosh Hashana 17a and Tosafot ad. loc. s.v. Karkafta) and reciting an unnecessary Beracha (see Berachot 33a and Shavuot 39a) are very serious violations of Torah Law. It is possible that the potential prohibition to refrain from wearing Tefillin on Chol Hamoed is more severe than a potential prohibition to wear Tefillin on Chol Hamoed.

Shulchan Aruch and Commentaries
The Bait Yosef (O.C. 31 s.v. V’cholo) notes that all Sephardic Jews refrain from wearing Tefillin on Chol Hamoed. He cites at length from the Midrash Hane’elam to Shir Hashirim that presents a Kabbalistic explanation for refraining from wearing Tefillin on Chol Hamoed. In fact, the Zohar strongly advocates refraining from wearing Tefillin on Chol Hamoed. We should note that many Kabbalistic themes have been incorporated into the Halachot of Tefillin. For example, see Shulchan Aruch 25:2, 25:11, and 25:13.

Accordingly, Rav Yosef Karo rules in the Shulchan Aruch (O.C.31:2) that it is forbidden to wear Tefillin on Chol Hamoed. The Rama, however, records that the universally accepted practice among Ashkenazic Jews is to wear Tefillin on Chol Hamoed and to recite the Berachot. The Rama adds, though, that the custom is to recite the Berachot on Tefillin quietly on Chol Hamoed. The Mishna Berura (31:8) writes that this is to avoid fighting since the issue of reciting the Berachot on Tefillin is embroiled in controversy. There might be Kabbalistic reasons for this practice as well.

The Taz (O.C. 31:2) encourages one to refrain from reciting the Berachot on Tefillin during Chol Hamoed in deference to the authorities who forbid wearing Tefillin on Chol Hamoed. The Vilna Gaon (Biur HaGra O.C. 31:2 s.v. V’yesh Omrim) rules in accordance with the Rishonim who believe that one should refrain from wearing Tefillin on Chol Hamoed.

Late Codifiers and Current Practices
The Mishna Berura (31:8) and the Aruch Hashulchan (O.C. 31:4) follow the recommendation of the Taz, to refrain from reciting the Berachot when wearing Tefillin during Chol Hamoed. The Aruch Hashulchan concludes, however, that one should follow the practice of his ancestors in this regard.

The Aruch Hashulchan notes that “recently” a practice among some Ashkenazic Jews has developed to refrain from wearing Tefillin on Chol Hamoed. He is referring to the practice of Chassidim, which was also the practice at the famed Volozhiner Yeshiva (as recorded by the Rav, Shiurim L’zeicher Aba Mori Zal p.119). The Rav (ibid.) also records that Rav Chaim Soloveitchik did not wear Tefillin on Chol Hamoed. In Eretz Yisrael, the ruling of the Vilna Gaon to refrain from wearing Tefillin on Chol Hamoed has been universally accepted. One who publicly dons Tefillin during Chol Hamoed in Eretz Yisrael is inviting a strong protest from his fellow worshippers.

Interestingly, both the Mishna Berura and the Aruch Hashulchan rule that there should not be disparate practices regarding this matter in one prayer hall. They write that such a disparity violates the prohibition of Lo Titgodedu. This refers to the prohibition against allowing disparate ways of observing the Torah to coexist in one locale (see Yevamot 14a). Nevertheless, in many North American congregations on Chol Hamoed, some wear Tefillin and others do not wear Tefillin in one Minyan. Are all these congregations disregarding the Mishna Berura and the Aruch Hashulchan?

One might respond that they are not ignoring these eminent authorities. The Gemara (ibid.) states that the coexistence of Shnei Batei Din Be'ir Echad — two distinct communities maintaining disparate practices in one community — does not violate Lo Titgodedu. Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 1:158 and 159) notes that in this country Jews have gathered from the various sections of Europe and continue the Halachic practices of their former communities. Subsequent generations continue the practices of their parents. Rav Moshe asserts that American Jewry constitutes “a massive Shnei Batei Din Be'ir Echad” and we do not violate Lo Titgodedu. For example, the Rama (O.C. 493:3) writes that disparate observances of the Omer mourning period in a single community violate Lo Titgodedu. Rav Moshe writes, though, that this does not apply in cities like Brooklyn and Manhattan where the situation of Shnei Batei Din Be'ir Echad pertains.
The same might apply to the dispute regarding Tefillin on Chol Hamoed. The Mishna Berura and Aruch Hashulchan addressed a situation in Europe, which radically differs from the situation in North America, as explained by Rav Moshe. However, it appears that one violates Lo Titgodedu if he wears Tefillin in public in Israel on Chol Hamoed.

Conclusion
The Rishonim and Acharonim debate whether one should wear Tefillin on Chol Hamoed. This debate has not been resolved and the various practices regarding this issue persist. This author heard from the Rav that one should follow his father’s practice in this regard. Gerim and Baalei Teshuva should consult their Rav for guidance on which practice to adopt. Either he might advise wearing Tefillin without reciting the Berachot or he might advise following the dominant practice in the local community.

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