Building the Sukka
the
laws of THE FESTIVALS
by Rav David
Brofsky
Shiur #18 Building
the Sukka
Introduction
Last
week, we studied the halakhot of the sekhakh, including its
optimal thickness. We questioned
whether one should be able to see the stars through the sekhakh and
whether it may protect the sukka from rain and falling leaves. We also discussed sekhakh that
allows in more sunlight than shade, as well as the laws of a sukka found
under another sukka or under a tree.
This
week, we will conclude our study of the laws pertaining to building a
sukka. We will discuss
whether a sukka must be built with intention (kavana) to be a
sukka, or at least to provide shade. We will also discuss who may and may not
build a sukka. Finally, we
will discuss the sanctity of the sukka and its practical
ramifications.
Sukka Yeshana
- An Old
Sukka
To what extent does one need intent when erecting the sukka? The
Talmud addresses this issue in numerous contexts. The Gemara discusses an old
sukka (sukka Yeshana), which was not constructed specifically for
this present festival. The
mishna (9a) teaches:
Beit
Shammai declare an old sukka invalid, but Beit Hillel pronounce it
valid. What is an old
sukka? One made thirty days before the festival; but if one made it for
the purpose of the festival, even at the beginning of the year, it is
valid.
According
to the mishna, Beit Shammai clearly believes that a sukka must be
built with intent for the present festival. If it was built within thirty days of
the festival, one may assume that it was built with the proper intention. If it was built more than thirty days
prior to the festival, then it may still be valid if it was built for the
purpose of the festival. The gemara explains that this requirement is
derived from a verse: You shall make the Festival of Sukkot for seven
days (Devarim 16:13) - This implies that the sukka should be made for
the sake of the festival.
Although this passage implies that Beit Hillel completely rejects the
notion of intent for the construction of the sukka, the Yerushalmi
(1:2) records that one must innovate part of the sukka (le-chadesh
bo davar). In fact, the
Yerushalmi cites two opinions regarding the extent of this chiddush
(innovation) -- some say that it should affect a tefach, while others say
even a small portion, a kol-she-hu, spread across the entire sukka
is sufficient.
The
Rishonim differ as to whether the Yerushalmi disagrees with the
Bavli. In addition, does the
Yerushalmi claim that Beit Shammai demands a chiddush, or does the
chiddush only constitute a mitzva min ha-muvchar (an optimal
performance of the mitzva)?
Some
Rishonim (Rif 4b; Rambam, Hilkhot Sukka 5:9) do not cite the
Yerushalmi at all, implying that they view the Yerushalmi as arguing with the
Bavli; they simply rule in accordance with our gemara (Sukka
9a).
Most
Rishonim, however do cite the Yerushalmi. They disagree, however, as to whether
the Yerushalmi mandates innovating part of the sukka or merely records
the mitzva min ha-muvchar (preferable way of performing the
mitzva). R. Yehudai Gaon
(cited in Shibbolei Ha-Leket), for example, understands that according to the
Yerushalmi, Beit Hillel demands that at least part of the sukka be
innovated, and if not, the sukka is invalid. Alternatively, the Ran (1a) explicitly
describes the Yerushalmi as relating the mitzva min
ha-muvchar.
Interestingly,
some Rishonim believe that the Yerushalmi never intended to imply that
Beit Hillel demands that one somehow innovate a sukka Yeshana. The Radbaz (Responsa 6:57), for example,
cites those who believe that the Yerushalmi was explaining Beit Shammais
position, in which case the passage is certainly rejected. The Shibbolei Ha-Leket claims that the
Yerushalmi relates to when one may cite the blessing of she-hechiyyanu
upon building a sukka, and does not relate at all to the validity of a
sukka itself.
As mentioned above, most Rishonim do cite the
Yerushalmi. R. Yosef Karo (Beit
Yosef 446) explains that according to all Rishonim except for the Ran,
one must renew part of a sukka erected more than thirty days before
Sukkot, and if one does not do so, he undermines the validity of
the sukka. It is worth
noting that most Rishonim, aside from R. Yehudai Gaon, do not say this
explicitly, but rather merely cite the passage from the Yerushalmi. In his Shulchan Arukh (336:1), R. Karo
also implies that one must innovate part of the sukka. The Magen Avraham (1), the Taz (3), and
other Acharonim (Mishna Berura 4 and Shaar Ha-Tzion 4, citing the
Chayyei Adam and Bikkurei Yaakov; Arukh Ha-Shulchan 336:2) rule in accordance
with the Ran, who views the chiddush as a mitzva min ha-muvchar.
R.
Shlomo
Ha-Kohen of Vilna (1828-1905), in his Responsa Binyan Shlomo
(43), discusses this topic in great depth, and brings proofs to support the
opinion that views this chiddush as a mitzva min ha-muvchar and
not strictly required. In addition,
he offers a unique and compelling explanation of the Yerushalmi. While most understand that the
Yerushalmi understands that even Beit Hillel prefers that a sukka be
built with intent, the Binyan Shlomo argues that one should add to the
sukka in order to personally participate in the building of the
sukka, in fulfillment of the principle of mitzva bo yoter
mi-be-shelucho. As we discussed
previously, some sources (see Sheiltot de-Rav Achai Gaon 189, for example)
imply that building a sukka itself constitutes a mitzva.
What type of innovation does the Yerushalmi refer to?
The
Yerushalmi cites two opinions - that the change must affect a tefach or
even a small amount (kol she-hu) spread over the entire
sukka. The Tur (636) and
Shulchan Arukh (636:1) assume that these opinions do not disagree, but rather
relate to different scenarios. If
one changes one side of the sukka, then one must change a full
tefach. However, if one
changes the entire length or width of the sukka, then even a small amount
along the entire sukka suffices.
What
kind of change does the Yerushalmi demand? Most Rishonim (Ittur,
Hilkhot Sukka; Rosh 1:13; Ritva 2:1; Meiri 9a) explain that one must
change the sukka itself.
Some Rishonim cite the Behag (see Rosh 1:13, for example), who
implies that simply bringing chairs into the sukka would suffice (see
Korban Netanel, ad. loc. 20). The
Binyan Shlomo challenges their interpretation of the Behag, and argues that the
Behag rules that bringing chairs into a sukka would suffice only in order
to justify the blessing of she-hechiyanu upon completing the construction
of the sukka.
The
Shulchan Arukh (336:1) rules that regarding a sukka Yeshana - a
sukka built more than a month prior to Sukkot without intention or
a sukka built more than a year ago (before the previous festival) - one
must renew part of the sukka itself (ba-gufa) by either adding a
square tefach to one part of the sukka or a chiddush across
the entire sukka, a kol she-hu. If, however, it was built within the
past year and he had intention when constructing the sukka, then it does
not require a chiddush.
Where
must one innovate in the sukka? The Mishna Berura (5, see also Shaar
Ha-Tziyun 4) writes that one may add to the sekhakh or even to one of the
necessary walls of the sukka.
Sukkot Ganbak and
Rakbash- Sukkot Erected to Provide Shade
Although
we have demonstrated that a sukka need not be built with the specific
intention of being a sukka, another source implies that it must be built
in order to provide shade. The
gemara (8b) teaches:
Our
Rabbis taught: Ganbak [an acronym for] -- A booth of Gentiles, women,
cattle, or Samaritans and any other booth is valid, provided that it is covered
according to the rule. What is
meant by according to the rule? R. Chisda answered: Provided that [the
covering] was made [with the intention of providing] the shade for the
sukka.
What
does any other booth include? It includes the booths [whose acronym is]
Rakbash, as our Rabbis taught: The booth of shepherds, the booth of
field-watchers, the booth of city guards, and the booth of orchard-keepers, and
any other booth is valid, provided that it is covered according to the
rule. What is meant by according
to the rule? R. Chisda answered: Provided [the covering] was made [with the
intention of providing] the shade for the sukka. What does any other booth include? It
includes the booths [whose pneumonic] is Ganbak.
The
gemara rules that sukkot constructed by a Gentile, woman, or
Samarians, or sukkot erected for cattle, are valid as long as they were
built in order to provide shade.
Similarly, the more temporary structures built for shepherds,
field-watchers, city guards, and orchard-keepers are also valid, again assuming
they were built in order to provide shade.
Rashi (s.v. amar) explains that one must build the sukka
with the intention specifically of providing shade, and not in order to offer
privacy. Rabbeinu Tam (cited by
Rosh 1:12) explains that the gemara validates a sukka constructed
for shade, as opposed to a sukka contrasted in order to protect from
rain, which is invalid. The Ran
(4a) argues that if the sukka was built to be a living (dira) or
storage (otzar) area, it is invalid. The Acharonim (Bach, Taz, and
Magen Avraham) disagree as to whether Rashi would agree with the Ran.
The
Shulchan Arukh implies that the sukka must be built in order to provide
shade, and does not cite the Ran.
The Arukh Ha-Shulchan (635:2), however, writes that a sukka built
for privacy or storage is invalid.
Although a sukka may be constructed by a non-Jew, one should be
careful to ensure that it is built properly (see below) and with the correct
intention. As mentioned above, the
Responsa Binyan Shlomo (43) suggests that one should always, preferably, build
ones own sukka - mitzva bo yoter mi-be-shelucho.
A number of Acharonim suggest that one express ones intentions
le-shem sukka or le-shem tzel - while placing the
sekhakh over the sukka.
Taaseh
Ve-Lo Min Ha-Asuy
Although
one usually constructs the walls of the sukka and then places the
sekhakh on top, at times, one might wish to make the sukka in a
different manner. For example, the mishna (15a) discusses a case in which
one intends to create walls and sekhakh by hollowing out a haystack. The mishna rules, If he hollows
out a haystack to make for himself a sukka, it is not a valid
sukka. The gemara (12a) explains that this law is based upon the
verse, You shall make (taaseh) [which implies] but not from that
which is made (taaseh ve-lo min ha-asuy). In other words, since the
Torah says that one must make the sukka, we learn that the sukka
must be made actively, and not automatically.
The Rishonim, however, disagree as to the scope and definition of
this halakha. The Rambam
(Hilkhot Sukka 5:9) writes:
A
sukka that was made for any purpose whatsoever - even if it was not made
for the purpose of [fulfilling] the mitzva - if it was made according to
law, it is kosher. However, it must be made for the purpose of shade. Examples of this are sukkot made
for gentiles, sukkot made for animals, and the like.
In
contrast, a sukka that came about on its own accord is unacceptable,
because it was not made for the purpose of shade. Similarly, when a person hollows out a
place in a heap of produce and thus makes a sukka, it is not considered
to be a sukka
because the produce was not piled there for this purpose. Accordingly, were one to create a space
one handbreadth [high] and seven [handbreadths] in area for the purpose of a
sukka, and afterwards hollow it out till it reached ten [handbreadths],
it is kosher, since
its sekhakh was placed for the purpose of shade.
The
Rambam relates the halakha of taaseh ve-lo min ha-asuy to our
previous discussion, regarding whether one needs intention during the building
of the sukka. He writes that
since we see that the sekhakh must be placed with the intention for
shade, the sekhakh must therefore be placed with the intention that it
will provide shade, or, alternatively, the haystack may be hollowed out if the
top of the haystack already functions as an ohel that is, it is
raised at least a tefach above the hay below.
Assuming that taaseh ve-lo min ha-asuy teaches that the
sekhakh must be placed with the intention of providing shade, the Hagahot
Maimoniyot (5:30) adds that one must first construct the walls and only
afterwards place the sekhakh.
The Rema (635) rules accordingly.
The
Bach disagrees. He
writes:
This
is quite puzzling. How is this case
at all similar to one who hollows out a haystack, regarding which he did not
place the haystack for the purpose of providing shade, but rather for storage!
But here [regarding one who places the sekhakh before the walls], he
placed the sekhakh with the intention of being a sukka! And if
[you will argue that] since there are no walls, [the sekhakh] is not
considered to be an ohel, certainly all we require is that the
sekhakh be placed for the purpose of providing
shade,
The
Bach argues that even if the taaseh ve-lo min ha-asuy teaches us that
the sekhakh must be placed with the intention of providing shade, even if
it is suspended before the walls, it still constitutes a formal ohel, and
the sekhakh, and sukka are still valid. While the Bach and the Magen Avraham (4)
validate this sukka be-diavad, the Levush and the
Taz (4) disqualify this sukka.
We see from this discussion that some Rishonim understand that
taaseh ve-lo min ha-asuy teaches that the sekhakh must be placed
with the intention for providing shade, and the Acharonim differ as to
whether one who suspends the sekhakh before erecting the walls has made
the sekhakh with the intention for shade. Other Rishonim however,
understand this halakha differently. They maintain that taaseh ve-lo min
ha-asuy relates to the sekhakh itself: the sekhakh must be
placed in a manner that it can be inherently valid. If the sekhakh is part of a
larger haystack and is only distinguished from the walls by hollowing out the
haystack, or if the sekhakh is place on the walls while it is still
attached to the ground (Sukka 11a) and only afterwards detached, we
invoke the principle of taaseh ve-lo min ha-asuy. However, if the sekhakh is placed
in a perfectly valid manner but the sukka is not yet valid because the
walls have not yet been erected, then the sekhakh and the sukka
are valid.
The Rishonim discuss another case - the apparently then common
practice of erecting a sukka underneath a roof from which the bricks were
removed. This practice raised
numerous questions concerning the validity of the sukka and whether one
may open and close the roof on Shabbat and Yom Tov.
Regarding
this practice, the Beit Yosef (626) cites different opinions. He first cites the Maharam, who writes:
I
found written [in the Responsa of the Maharam 182]: A sukka [erected]
under a roof - people say that one may not construct the sukka before
removing the roof, because of taaseh ve-lo min ha-asuy. R. Elchanan explained that we only apply
the principle of taaseh ve-lo min ha-asuy to a sukka Yeshana, but
not in this case. As a proof, we
say that a sukka higher than twenty amot should be lowered; in
other words, we do not say that he must first remove the sekhakh
first.
According
to the first view, because the sukka was not actually halakhically valid
until after the roof was removed, we consider this case to be a violation of
taaseh ve-lo min ha-asuy.
R. Elchanan, however, disagrees, and insists that this case does not
constitute such a problem The Beit Yosef then cites the Orchot Chaim (Hilkhot
Sukka 26), who offers another reason to be lenient.
We
may say that those who make their sukka inside a house and do not remove
the bricks [of the roof] until after the sekhakh is placed on the
sukka - they do not need to shake the sekhakh afterwards, because
of taaseh ve-lo min ha-asuy, because removing the bricks and adjusting
the beams is the act which validated the sekhakh which was placed
improperly.
Although
R. Elchanan and the Orchot Chaim agree practically, they fundamentally
disagree. R. Elchanan does not
believe that placing the sekhakh before removing the roof poses any
problem, while the Orchot Chaim acknowledges a problem, but views the removing
of the bricks as part of the process of placing the sekhakh, thereby
fulfilling taaseh ve-lo min ha-asuy.
Apparently, these Rishonim disagree at to the nature of the
requirement of taaseh ve-lo min ha-asuy in the laws of
sukka. R. Elchanan must
believe that taaseh ve-lo min ha-asuy dictates how the sukka
should be constructed - the sekhakh must be placed after the walls in
order to provide shade. However,
once a valid sukka consisting of walls and sekhakh is constructed,
even if one cannot sit in the sukka due to an external factor, the
sukka is kasher. The other Rishonim, however, believe that
whenever a sukka is disqualified, even due to external factors, one must
repeat the order dictated by the principle of taaseh ve-lo min
ha-asuy.
The Rema (626:2) rules that one may build a sukka under a roof,
provided that he removes the bricks of the roof afterwards. He adds (3) that one may erect a
sukka under roofs which are made to open and close, and that they may be
closed during the rain and re-opened afterwards. While the Rema ruled above that one must
erect the walls before suspending the sekhakh, here, he validates a
sukka built under a roof, and even under a roof that opens and
closes. Apparently, the principle
of taaseh ve-lo min ha-asuy applies when the sekhakh is placed in
a manner in which it does not function as sekhakh. However, when the sukka is
constructed properly but remains invalid due to and outside factor, the
sukka is valid. Many
Acharonim (see Mishna Berura 18) disagree regarding the case of a sliding
roof. They insist that the
sukka should be built while the roof is open and that sliding the door
open and shut is not akin to removing the bricks from the roof in order to
validate the sukka.
The
Sanctity of the Sukka
The Talmud (Sukka 9a) teaches that the wood of the sukka is
assur be-hanaah it is prohibited to benefit from
them.
R.
Sheshet said in the name of R. Akiva: From where do we know that the wood of the
sukka is forbidden all the seven [days of the festival]? From Scripture,
which states, The festival of Sukkot, seven days to the Lord, and it
was taught: R. Yehuda b. Bateira says: Just as the Name of Heaven rests upon the
festival offering (chagiga), so does it rest upon the sukka, since
it is said, The festival of Sukkot, seven days to the Lord: just as the
festival [offering] is to the Lord, so is the sukka also to the
Lord.
The
Rishonim and Acharonim discuss the nature and scope of this
halakha.
Regarding the nature of this halakha, one must first question the
gemaras comparison of sukka to the festival offering (the
chagiga). Rashi (s.v.
shem) explains that just as the chagiga is prohibited until after
the haktarat eimurim (the burning of those parts intended to be offered
on the altar), the sukka is only prohibited until the conclusion of the
festival. Rashi implies that the
comparison to the chagiga does not relate to the type or nature of the
issur, but rather to its duration.
Alternatively, the Arukh La-Ner (9a) implies that the sukka has
kedushat ha-guf (inherent sanctity), similar to a chagiga. In fact, he explains that had the
gemara not explicitly compared the sukka to the chagiga,
one might have naturally equated the sukka with kodshei bedek
ha-bayit, property of the Mikdash, which is also holy, but which may
be redeemed. The Rashba
(Beitza 30b) also writes that a sukka has kedushat ha-guf
for all seven days of the festival.
He even suggests that one might distinguish between different
sukkot. For example,
although the sukkot of ganbak and rakbash (see above) are
valid, they may not have this kedushat ha-guf. Rather, they are to be considered
ordinary sukkot (sukkot be-alma).
This discussion was continued by the Acharonim, and led to a
number of interesting discussions.
For example, exactly what type of benefit may one not derive from the
sukka? The Taz (338) explains:
Certainly
one should not say that all of the laws which apply to the chagiga apply
to the sukka, because if so, we would say that the sukka has
kedushat ha-guf! Rather, we must say that And you shall make the
festival of Sukkot for seven days that regarding this, the sanctity of
the sukka should last as long as the festival, and
you should not take from [the sukka] for your enjoyment any part which
will nullify its kedusha;
regarding this they are similar, and no more.
The
Taz maintains that one may not take from the sukka in a manner that will
nullify its kedusha.
Other Acharonim disagree.
For example, they cite the Turs (639) assertion that one who is exempt
from sitting in the sukka and yet remains in the sukka does not
receive reward and is considered to be a fool (hedyot). They question - isnt it prohibited to
derive benefit from a sukka if not for the sake of the mitzva? R.
Raphael Yom Tov Lippman (18161879), in his Responsa Oneg Yom Tov, grapples with
this question, and suggests that lo nitna Torah le-malakhei ha-sharet
(Yoma 69) -- the Torah was not given to celestial angels, and therefore
one is not expected to get up and immediately leave the sukka once it
begins to rain. Fundamentally,
however, he believes that one should not derive benefit from the sukka
when not fulfilling the mitzva.
While
some note that when it rains, the sukka may not even be considered to be
a sukka (Gra 639:22), as we shall discuss, the Taz does not believe that
one may not derive benefit from a sukka like other issurei
hanaah, but rather that one may not take part of the sukka and
nullify its kedusha. The
Mishna Berura (638:4) rules in accordance with the Taz.
Regarding the scope of this halakha, as we mentioned previously,
the Rambam (Hilkhot Sukka 6:15) applies this prohibition to both the
sekhakh and the walls of the sukka. Tosafot (9a s.v. minayin) cite
Rabbeinu Tam, who claims that, mi-deoraita, the prohibition only applies
to the minimum area necessary to validate the sukka, although
mi-derabbanan, the prohibition applies to the entire sukka. The Rosh (1:13) writes that this
prohibition applies only to the sekhakh. The Shulchan Arukh (338:1) rules in
accordance with the Rambam.
The Rema (338:1) writes that even if the sukka falls, one may not
derive benefit from it. The
Acharonim discuss when and whether one may take down a sukka on
Chol Ha-Moed. Some permit
taking down a sukka in order to erect it elsewhere, certainly if the
sukka is portable and meant to be built, taken apart, and built
again.
The
gemara (10a) teaches that in addition to the sukka itself, one
should not benefit from the noy sukka during Sukkot.
If
he covered it according to the rule, and adorned it with embroidered hangings
and sheets, and hung therein nuts, almonds, peaches, pomegranates, bunches of
grapes, wreaths of ears of corn, [phials of] wine, oil or fine flour, it
is forbidden to make use of them.
The
Talmud discusses this halakha in the context of the prohibition or
bizuy mitzva, i.e. treating
mitzvot with disrespect, and this law is of rabbinic origin (Tosafot,
s.v. sukka). The Shulchan
Arukh (338:3) rules that one should not benefit from noy sukka even after
they fall. Although the Talmud
discusses the possibility of making a condition (tenai) to prevent the
laws of bizuy mitzva from applying to noy sukka, the Rema points
out that we are not accustomed to making this tenai
nowadays.
Although one should not remove noy sukka during the festival in a
disrespectful manner, one may certainly remove noy sukka if one fears
that they may be stolen or ruined by rain.
Next week, we will begin our study of the mitzva of yeshivah
ba-sukka - dwelling in the sukka. We will discuss the extent to which one
must sit in the sukka, as well as the blessing of leishev
ba-sukka, and those who are exempt from the mitzva. Although we were unable to cover all of
the halakhot relating to the construction of the sukka, I hope
that out brief study of the past few weeks was helpful and enlightening.