Tefillin on Chol HaMoed

There is a general question that exists on Chol haMoed about whether Tefillin should or should not be worn. The sugya begins on 18b-19a in Moed Kattan. There, the Mishna says “one may not write a shtar chov during Chol haMoed…Rabbi Yehuda says that one may write Tefillin and Mezzuzos for themselves (on Chol haMoed).” There is a general issur to do melacha on Chol haMoed and one of the issurim is to write. Thus, Rabbi Yehuda is teaching a great chiddush that one may write and correct Tefillin on Chol haMoed.

Rashi explains that when Rabbi Yehuda permits writing Tefillin and Mezzuzos for oneself, that is permitted in order to use those objects on Chol haMoed itself. Conversely, the Mishna is assuring writing Tefillin or Mezzuzos in order to sell them. Thus it is apparent, that Rashi holds that one must wear Tefillin during Chol haMoed and that is what the Mishna is teaching. (Note: one could explain Rashi differently, and say that when the Mishna says “koseiv odom Tefillin uMezzuos liatzmo” perhaps the liatzmo of the Mishna and Rashi’s explanation is only referring to mezzuzos and not to Tefillin. This explanation does not seem to be correct however, because it would be strange that one would only be permitted to write a mezuzah if they were using on Chol haMoed itself, while Tefilin could be written regardless.) Additionally, Tosafos in Menachos (36: D”H yatzu) explains, that as opposed to Shabbos and Yom Tov which have an “ose” and thus one is patur from Tefillin on those days, on Chol haMoed, despite the fact that there is also an element of an “ose,” one is nonetheless chayav in Tefillin, based on the Gemara in Moed Kattan.

The Rif makes no mention of the chiyuv of Tefillin on Chol haMoed, while the Rosh paskins explicitly that one is in fact chayav in Tefillin on Chol haMoed (Aruch haShulchan 31:4.) The Rambam too, seems to paskin that one wears Tefillin on Chol haMoed, firstly, because he does not quote that one does not wear Tefillin on Chol haMoed, when he quotes that din in Hilchos Tefillin (4:10) in regards to Shabbos and Yom Tov. Additionally because, in Hilchos Yom Tov (7:13), the Rambam says that one may only write Tefillin and a Mezuza for themselves and if they have nothing to eat then they can write and sell them, for others, as a livelihood. Nonetheless, the Kesef Mishna (author of the Shulchan Aruch) says that he understands that, through the last line of the Rambam where he permits writing for one’s needed livelihood, the Rambam is asuring wearing Tefillin throughout Chol haMoed as well (I then saw in the Igros Moshe (Orach Chaim:4:24:6) that the Kesef Mishna was chozer later in his piece and wrote that the Rambam held that one must wear Tefillin on Chol haMoed). Additionally, the Rabbenu Manoach, as well as, the Haghos Maimaniyos (Hilchos Tefillin 4:10:9) quoting the Rabbenu Yehuda in the name of the Ri forbid wearing Tefillin on Chol haMoed.

The Shulchan Aruch (31:2) paskins explicitly, that one is exempt from Tefillin on Chol haMoed, because like Shabbos and Yom Tov, Chol haMoed has an “ose” element to it. This view was first mentioned and then rejected by Tosafos in Menachos, where he pointed out that Chol haMoed has an “ose” element (Succah on Succos and isur achillas chameitz on Pesach) but while Tosafos paskined that one is nevertheless chayav in Tefillin, the Shulchan Aruch paskined that one is patur for this very reason. Later, in hilchos Chol haMoed, the Shulchan Aruch (545:3) paskined that one is permitted to write Tefillin on Chol haMoed “liatzmo” which the Mishna Berura explains as meaning even if one is not going to wear Tefillin on Chol haMoed one may nevertheless write the Tefillin. In light of the Shulchan Aruch’s psak in Hilchos Tefillin, this explanation of the Mishna Berura is obvious, because the Shulchan Aruch could not have meant that one only may write Tefillin on Chol haMoed if he intends to wear them, as the Shulchan Aruch never paskins that one wears them on Chol haMoed. This is also the shitah of the Gra, and on his explanation to the Rambam (Hilchos Tefillin 4:10) the Gra quotes from the Behag as well as the Zohar (to Shir haShirim (daf 8) (Orach Chaim:5:24:6)) who both forbade wearing Tefillin on Chol haMoed (No such issur is mentioned in our version of the Behag (Aruch haShulchan (31:4)). Rav Moshe Feinstein (Orach Chaim:5:24:7) says that the Gra did not take the Zohar into account, when he ruled that one should not wear Tefillin on Chol haMoed, rather, as explained below, the Gra felt that there was no viable svara to wear Tefillin in the first place.

The Rama (31:2) disagrees with the Shulchan Aruch and quotes that we do wear Tefillin on Chol haMoed but the Bracha should be made quietly. The Be’er Heitev quotes the Taz that it is very strange that the Ramma says that one should make the bracha quietly and therefore says that one should not make a bracha at all. In order to be yotze according to all shitos, the Mishna Berura advises that one put Tefillin on without a bracha and have in mind that if Chol haMoed is a time of Tefillin then one is being yotze the mitzvah but if not then one is not yotze the mitzvah through the Tefillin. The Mishna Berura continues that, because there is no issur of “bal tosif” in wearing Tefillin on Chol haMoed (as opposed to Shabbos and Yom Tov where, as the Magen Avraham says on the Shulchan Aruch in siman 31, there is such an issur,) there is definitely is no aveira being performed when one wears Tefillin on Chol haMoed.

While at first glance it appears that the nekudas hamachlokes between the two sets of Rishonim and Achronim is understanding the heter to write Tefillin on Chol haMoed, the Gra, in his peirush to the Shulchan Aruch (siman 31) seems to say that this is not the machlokes. The Gra explains, that he finds the shitah of the Ramma etc. very troubling, as fundamentally, Shabbos and Yom Tov is also a zman Tefillin, and thus we see that fundamentally a time being defined as a zman Tefillin does not relate to whether or not we actually wear Tefillin on that day. Thus, one could understand that one is chayav in Tefillin on Chol haMoed (like the chiyuv on Yom Tov) and thus is permitted to write Tefillin (even though he will not wear them.) I then heard in a Shiur given by Rabbi Tzvi Sobolofsky (see yutorah.org) that the nekudas hamachlokes between the two sets of Rishonim and Achronim may be whether the issur melacha on Chol haMoed is a din diOraysa. However, as Rabbi Sobolofsky said, this would only be true if the “ose” element that would patur one from Tefillin on Chol haMoed is the issur melacha, as some suggest. However, if, as mentioned previously, the “ose” is the mitzvah of matza or succah, then the question about issur melacha on Chol haMoed should be irrelevant.

As a result of the above machlokes, the question of “lo sisgodidu,” of whether it is problematic to have some people wearing Tefillin and some not in one Shul, arises. This is particularly problematic in modern America where many people with many different ancestries have met together and often daven side by side in one Shul. Some, such as the Kitzur Shulchan Aruch (10:25) and the Aruch haShulchan (31:4), explicitly condone Shuls in which some wear Tefillin and some do not, while others, such as the Shu”t Chayei Aryeh, allow different minhagim to be practiced in one Shul, and holds there is no violation of “lo sisgodidu,” if those who wear Tefillin do not say the bracha on Tefillin at all, or say the bracha quietly. The Mishna Berura (31:2:8) says that it is incorrect for there to be one Shul with mixed practices, and one who wears Tefillin and visits a Shul, wear Tefillin are not worn should wear Tefillin without a bracha.

Rav Moshe Feinstein (Orach Chaim:5:24:7) seems to say that it is ok for multiple people in one Shul to practice different minhagim in this regard. This is because no single person has control over anyone else’s practice and cannot control other people within his Shul. However, Rav Moshe specifies that the Chazzan should follow a specific minhag of the Shul. Nonetheless, he is meikil that even the Chazzan need not follow the minhag of the Shul, if the Shul rules dictate that anyone can go up and daven without permission from a head Gabbai, because in that situation as well, the individual members of the Shul have no control of the person who davens and if he is wearing Tefillin or not. Although the Piskei Teshuvos who says that the minhag Klal Yisroel is primarily to not wear Tefillin, Rav Moshe concludes that if someone has no minhag, then they should wear Tefillin with a Bracha on Chol haMoed because that was the minhag going back a long time.