the laws of THE FESTIVALS

 THE LAWS OF SUKKOT

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 Shammai’s 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 Sha’ar 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 She’iltot 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; Me’iri 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 Sha’ar Ha-Tziyun 4) writes that one may add to the sekhakh or even to one of the necessary walls of the sukka.

 

Sukkot Ganba”k and Rakba”sh- 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: Ganba”k [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] Rakba”sh, 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 Ganba”k.

 

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 one’s own sukka - mitzva bo yoter mi-be-shelucho. 

 

            A number of Acharonim suggest that one express one’s intentions – “le-shem sukka” or “le-shem tzel” - while placing the sekhakh over the sukka. 

 

Ta’aseh 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 (ta’aseh)” – “[which implies] but not from that which is made (ta’aseh 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 ta’aseh 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 ta’aseh 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 ta’aseh 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 ta’aseh 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 ta’aseh 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 ta’aseh 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 ta’aseh ve-lo min ha-asuy.  R. Elchanan explained that we only apply the principle of ta’aseh 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 ta’aseh 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 ta’aseh 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 ta’aseh ve-lo min ha-asuy. 

 

            Apparently, these Rishonim disagree at to the nature of the requirement of ta’aseh ve-lo min ha-asuy in the laws of sukka.  R. Elchanan must believe that ta’aseh 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 ta’aseh 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 ta’aseh 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-hana’ah” – 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 gemara’s 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 ganba”k and rakba”sh (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 Tur’s (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 - isn’t it prohibited to derive benefit from a sukka if not for the sake of the mitzva? R. Raphael Yom Tov Lippman (1816–1879), 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 hana’ah, 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-de’oraita, 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.