We’ve already established that it is prohibited for a Jew to do various kinds of work on hol hamoed. Today’s daf explores whether a Jew can pay a non-Jew to do work for them on hol hamoed.
As a general rule, one may not contract a non-Jew to do work specifically on hol hamoed. But ambiguity arises in the case of a contracted employee who is paid upon the completion of a job. Unlike an hourly worker, a contracted employee can set their own hours and do the work when they want to, so long as it is completed within the time frame agreed upon. If the contracted worker can set their own hours, can they choose to work on hol hamoed to complete the task that the Jewish employer has given to them?
The Gemara offers three progressively more stringent rabbinic opinions:
First, according to Shmuel, contractors:
… are prohibited within the limit. Outside the limit, it is permitted.
Shmuel makes a geographic distinction: A non-Jewish contracted employee cannot work for a Jew on hol hamoed within the city limits. But farther out, where it is not visible to others, it is permitted.
The second opinion, Rav Papa’s, further geographically restricts this permission:
And even outside the limit, we said it only when there is no other city in close proximity to there, but if there is another city in close proximity to there, it is prohibited.
If the road is well-traveled and at the outskirts of a wider urban region, then even if it is outside the city limits, Rav Papa forbids non-Jewish contract workers from doing work for Jews.
The third and most restrictive opinion comes from Rav Mesharshiyya who states:
And even when there is no other city in close proximity, we said only on Shabbat and festivals, when people do not routinely go there. However, on the intermediate days of a festival, when people routinely come and go from there, it is prohibited.
According to Rav Mesharshiyya, a Jew can only pay a non-Jew to do contract labor for them on a holiday when it is far enough away that people can’t see it and when it is Shabbat or the beginning or end of a holiday and Jews are prohibited from traveling — making it virtually impossible that a Jew will stumble upon the laborers.
Rav Mesharshiyya makes explicit what is only implied in the other two opinions: The concern is that Jews will see the non-Jewish contractors working for a Jew on hol hamoed and mistakenly think that Jews are permitted to direct non-Jewish workers on the holiday.
These progressively more stringent opinions have a real cost — a cost to the employer who is going to have to wait longer for their finished product, but more substantially, the cost to the contract worker, who only gets paid when the job is completed. If their Jewish employer does not allow them to work on it for the eight days of a holiday, then that is eight days more until they can get paid. If the limitations on when work can happen are not made clear before the job is offered and a plan put in place for just compensation, that could lead to real financial hardship for the contract worker.
There’s an expression in rabbinic circles that “every chumra leads to a kula” — every stringency leads to leniency in some other area of rabbinic law. Today’s daf challenges us to think about how the stringencies around hol hamoed could unintentionally lead to leniency around fair labor practices, and to put in the time and effort to make our expectations and limitations clear to those with whom we work.
Read all of Moed Katan 12 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 24th, 2022. If you are interested in receiving the newsletter, sign up here.
