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SUKKOT
5766
By Rav David
Silverberg
The Shulchan Arukh (637:3) rules that if one steals a mobile sukka from his fellow, he does not fulfill the mitzva with that sukka. Although the mitzva of sukka does not require the use of one's personally owned sukka – as opposed to arba minim, which requires (on the first day of Sukkot) that one personally own the four species – the Gemara (Sukka 9a) establishes that a stolen sukka is invalid for use. The Mishna Berura (637:18) remains undecided on the issue of whether or not people other than the thief can fulfill the mitzva by using a stolen sukka.
In a case, however, of a stationary, non-transportable sukka,
which somebody forcefully occupied from its owner, the Shulchan Arukh
rules (ibid.) that the thief does, in fact, fulfill the mitzva with this
sukka. The Shulchan
Arukh's ruling is based on the principle of karka eina nigzelet,
which says that a person who steals land – as opposed to moveable objects –
never acquires ownership over that property. Since land always remains in its place,
the owner never despairs from one day reclaiming the property; as such, the
stolen land remains under the legal possession of the rightful owner. (When it comes to mobile objects, an
object generally becomes the property of the thief once the owner despairs from
reclaiming it. Of course, the thief
must still pay the owner the article's value.) Therefore, a sukka cannot legally
be described as "stolen" unless it can be moved, and thus one who dispossesses a
stationary sukka from his fellow may fulfill the mitzva of
sukka with that sukka (though obviously he has acted
inappropriately, to say it mildly).
Some writers have noted that the Shulchan Arukh here follows consistently with his ruling in Choshen Mishpat (371:1) that land can never be legally "stolen" with regard to the transfer of ownership to the thief. As the Shakh cites, however, Tosefot and the Rosh followed the position of the Talmud Yerushalmi that a thief does become the legal owner of the land he stole once the owner despairs from reclaiming the property. According to their position, one who steals even a stationary sukka would be unable to fulfill the mitzva with that sukka.
If a person stole branches or wood and used them as sekhakh (or walls) for his own sukka, then he may fulfill the mitzva with his sukka if he genuinely intends to pay the victim the value of the stolen goods (Shulchan Arukh ibid., Mishna Berura 637:16). Torah law requires the thief to return stolen building materials to their owner, but Chazal, in an effort to encourage thieves to compensate their victims, enacted that they acquire ownership over these materials and can simply pay the value. It thus emerges that in such a case a person would not fulfill the mitzva according to Torah law – because he uses stolen sekhakh – but due to the Sages' enactment granting the thief ownership over the wood, he indeed fulfills the mitzva. However, as the Bei'ur Halakha emphasizes, if the thief has no intention of repaying the value of the stolen goods, he does not fulfill the mitzva, even if he intends on returning the goods to the owner fully intact after sukkot.
The Rama
(637:3) makes the (fairly obvious) point that one should not construct a
sukka in somebody else's property.
He adds that if one did erect a sukka in the private property of
another person, even though he has acted improperly he may nevertheless fulfill
the mitzva with this sukka.
However, the Shulchan Arukh
Ha-Rav ruled that one should not
recite a berakha when using such a sukka, given that it was constructed through a
form of theft.
The Bei'ur Halakha discusses at length the question of
building a sukka in public property. He appears to conclude that one may
build and use a sukka situated in public property if the
authorities issue no objection, and the sukka's presence does not cause any disturbance
or inconvenience to passersby.
******
The Torah in Sefer
Bamidbar (chapters 28-29) outlines
the requirements for the musaf (literally, "additional") offerings brought
on Shabbat, Rosh Chodesh and the festivals. In discussing the musaf offering on Sukkot, the Torah goes through
each of the seven days and specifies the animals offered for the musaf sacrifice that day. (This section is read as the Torah
reading on each day of Sukkot.)
Upon concluding the discussion of the musaf offering of each day, the Torah clarifies
that this offering is brought "in addition to the daily burnt-offering, its
meal-offering and its libation" ("milevad olat ha-tamid u-minchata
ve-niska"). Meaning, the musaf offering comes in addition to, rather than
in place of, the daily tamid sacrifice and its accompanying mincha (meal offering) and nesekh (wine libation).
While this is the standard formulation used with regard to most of the
seven days of Sukkot, in the context of the second day the Torah replaces the
final word of this clause, ve-niska ("and its libation"), with the plural form
ve-niskeihem ("and their libations"). Chazal understood that the extra letter
mem added to yield niskeihem combines with two other letters added
elsewhere in this section – another mem and a yod – to form the word mayim, or "water." These three deviations serve as an
allusion to the special nisukh
ha-mayim (water libation) ritual
observed on Sukkot.
The question, however, remains as to how to interpret the word ve-niskeihem according to the plain meaning of the
text. The Torah speaks here in the
plural form – "their libations" – but it is unclear to what two items it
refers. The only offering mentioned
in this verse that requires a libation is the daily tamid offering, which requires only a single
libation. To what, then, does the
plural term niskeihem refer?
Rashi suggests, quite simply, that niskeihem refers to the two tamid offerings, which were brought in the
morning and late afternoon. Each
tamid required a separate nesekh, and thus the plural term niskeihem refers to the two daily
libations.
The Meshekh Chokhma, however, suggests that niskeihem refers to the two different libations required each day of Sukkot – the wine libation required by virtue of the tamid offering, and the water libation required by virtue of the festival of Sukkot. The term niskeihem emphasizes that these two libations belong to two distinct halakhic frameworks: the wine libation is brought in conjunction with the tamid offering, and the wine libation is performed as part of the celebration of Sukkot. One might have concluded that once the Torah required nisukh ha-mayim on Sukkot, it becomes part of the ritual framework of the standard wine libation offered throughout the year. The Torah therefore emphasizes ve-niskeihem, "their libations," as if to say that one libation belongs to the tamid ritual, whereas the other relates strictly to the observance of Sukkot.
Accordingly, the Meshekh Chokhma adds, this clause serves as the source for the halakhic discrepancies between the two libations. Namely, the wine libation may not be brought before the offering of the tamid offering; if a wine libation was performed at night in anticipation of the following morning's tamid, it is invalid. By the same token, the wine libation may be performed for a tamid offered on a previous day; once the tamid was offered, a libation is warranted even after the day has passed (Temura 14a). When it comes to the nisukh ha-mayim on Sukkot, however, the exact opposite is true. The water libation may be performed during the night for the following day, but not for the previous day. Since nisukh ha-mayim relates to the given day of Sukkot, rather than to the tamid offering, its validity hinges on whether or not the day has begun or passed, rather than on whether or not the tamid has been offered. It does not depend at all on the tamid, since it belongs to the framework of the Sukkot rituals, and not to the framework of the daily tamid offering.
The Torah
therefore speaks here of "their libations," emphasizing that the tamid
and the festival of Sukkot each feature their own, unique nesekh, which belong to two entirely independent
halakhic categories.
******
One does not fulfill the mitzva of arba minim on Sukkot if one of the four species he
takes had been stolen, in light of the fundamental rule of mitzva ha-ba'a ba-aveira, which disqualifies the performance of a
mitzva facilitated by a transgression. On the first day of Sukkot, Halakha requires taking arba minim that one personally owns, and thus one
cannot fulfill the mitzva with stolen goods regardless of the rule of
mitzva ha-ba'a ba-aveira.
The Sha'arei Teshuva (658:6) cites an intriguing debate
among the authorities regarding a case of a person who stole his fellow's
arba minim and was later pardoned by the victim and allowed to keep the
arba minim. Some authorities
ruled that the victim's mechila (pardon) is effective retroactively such
that the thief has, in retrospect, fulfilled the mitzva.
Others, however, held otherwise, that the pardon has no bearing on the
status of the arba minim at the time when the thief used them for
the mitzva.
Therefore, although he was granted the right to keep the species and use
them for the rest of Sukkot, he has not yet fulfilled the mitzva.
This debate is not merely theoretical; it will yield practical ramifications in a case where the victim granted the thief mechila after the thief had already used the arba minim in the morning, and the sun has yet to set. According to the first view, the thief has retroactively fulfilled the obligation that morning, and so he is not required to take the arba minim again. The second view, however, would require that he take the arba minim again before sundown to fulfill that day's obligation, which he had failed to do by taking the arba minim that morning. Of course, if the mechila was granted during one of the nights of Sukkot, it would be too late for the thief to fulfill that day's obligation. Even in such a case, however, this debate would have practical consequences, insofar as the berakha of she-hecheyanu is concerned. According to the first view, the thief has retroactively fulfilled the mitzva of arba minim, and would therefore not be required to recite she-hecheyanu the morning after earning the victim's pardon. According to the second view, however, he has not fulfilled the mitzva, and so he would be required to recite she-hecheyanu when taking the arba minim for the first time after being pardoned.
This debate would, presumably, apply to a case of a stolen sukka,
as well. As we discussed earlier
this week, one does not fulfill the mitzva of sukka if he steals
and uses a mobile sukka, or if stolen materials were used to form the
sekhakh or walls. Here, too,
the question arises as to whether one retroactively fulfills the mitzva
after being granted mechila.
This would affect the requirement to recite she-hecheyanu, as
discussed above in the context of arba minim. Additionally, if the thief used the
stolen sukka on the first night of Sukkot, when the Torah requires eating
a meal in the sukka, and that same night is granted mechila,
whether or not he must conduct another meal in the sukka hinges on this debate. If he retroactively fulfilled his
obligation, then he need not eat another meal, whereas if the mechila is effective only henceforth, he would be
required to eat a new meal in the sukka to fulfill the mitzva.
With regard to a stolen sukka, an additional issue may be involved, as well. Assuming, for argument's sake, that mechila has no retroactive effect, or if the victim explicitly grants the thief permission to use the sukka henceforth, without pardoning the initial crime, the question arises as to whether we should apply in this case the rule of ta'aseh ve-lo min ha-asui. This rule demands that a sukka be made valid for use through its construction, rather than become valid for use passively as a result of some external event. For example, if a sukka is built under a tree, and is thus invalid for use, it remains invalid even if somebody subsequently removes the branches hovering over the sukka. Since the construction of the sukka did not itself make the sukka valid, it may not be used. In such a case, one would be required after the branches are removed to dismantle four tefachim of sekhakh and then replace it. Rav Moshe Sternbuch, in his Mo'adim U-zmanim (6:76), cites an authority who held that this principle would similarly disqualify a stolen sukka even after the victim grants the thief permission to use it. Here, too, the sukka began in a state of disqualification and became valid as a result of an entirely external development. Therefore, the thief would be required to dismantle and then replace some sekhakh before using it for the mitzva.
Other authorities, however (as cited in Piskei Teshuvot, p. 355), disagree, and claim that the rule of ta'aseh min ha-asui would not apply in such a case.
******
The Gemara in Masekhet Sukka (37b) establishes that when one performs the
mitzva of arba minim on Sukkot, he should hold the lulav – with the hadasim and aravot – in his right hand, and the etrog in his left. The reason, the Gemara explains, is that
one should afford greater honor to the lulav, which represents three mitzvot – the lulav, hadasim and aravot – and less honor to the etrog, which is held
independently.
Does this halakha apply only to right-handed people, or to
the left-handed, as well?
The Tur (651) follows the view of the Ba'al Ha-itur (in Hilkhot Tefillin), that no distinction is drawn in this regard between right-handed people and lefties. When it comes to tefillin, of course, Halakha indeed draws such a distinction, as a right-handed man dons tefillin on his left arm whereas left-handed individuals wear tefillin on the right arm. This distinction stems from Chazal's understanding of the word yadecha mentioned in the context of the tefillin shel yad (Shemot 13:16), as indicating that tefillin must be worn on yad keiha – the weaker arm. With regard to arba minim, by contrast, the Gemara clearly hinges this issue on the factor of importance. And since the right side is deemed the more "important" side even for lefties, they, too, should hold the lulav in the right hand.
By contrast, the Rosh (Sukka 3:25), following his mentor, the Maharam
Mei-Rotenberg (responsa,
The Shulchan Arukh (651:3) follows the view of the Ba'al Ha-itur, requiring a left-handed individual to hold the lulav in his right hand. The Kaf Ha-chayim (651:38) observed that several Sefardic authorities ruled against the Shulchan Arukh on this issue, and he therefore advised lefties to satisfy both views, by first holding the arba minim in accordance with the Rosh's view, and then switching hands to satisfy the Shulchan Arukh's position. However, the common practice among Sefaradim, following the ruling of Rav Ovadya Yosef (Chazon Ovadya, Sukkot, p. 352; see also Yabia Omer, 6:2:5), is to abide by the Shulchan Arukh's ruling, requiring that a lefty hold the lulav in his right hand. (The Kaf Ha-chayim himself notes that according to Kabbalistic teaching, too, even a lefty should hold the lulav in his right hand.)
The Rama, by contrast, in his glosses to the Shulchan Arukh, rules in accordance with the Rosh, that a left-handed individual holds the lulav in his left hand. This is the prevalent custom among Ashkenazim, though it is reported that the Steipler Gaon, who was left-handed, would hold the lulav in his right hand in deference to the Kabbalistic sources that advocate this position.
Rav Ovadya Yosef, who, as mentioned earlier, adopts the view of the
Shulchan Arukh, raises an interesting question as to why the Shulchan
Arukh chose to rule against the position of the Rosh on this issue. As Rav Ovadya cites from numerous
sources, the Shulchan Arukh, and the Sefardic world generally, held the
Rosh in great esteem and generally followed his rulings (unless both the
******
Twice in Masekhet Sukka (10b, 26a), the Gemara mentions the halakha exempting from the sukka obligation those who travel on Sukkot for the purpose of a mitzva, such as people who travel to a different city to visit their rabbi. Since these people are already involved in a mitzva – traveling to hear Torah from their mentor – Halakha exempts them from the obligation of sukka. The Gemara states explicitly that this applies even during the night, when they are not traveling. As Rashi (26a) explains, their mental preoccupation with the visit and the logistical preparations entailed suffice to exempt these travelers from the mitzva of sukka.
Rav Yoav Weingarten, author of the famous work Chelkat Yoav,
raised a question relevant to this halakha that he included in his
Kaba De-kashyeta – a list of difficult questions that he encountered over
the course of his Torah studies (question 81). It stands to reason that if the Torah
exempts from this mitzva those who travel to their rabbi, then certainly
people who travel to the Beit
Ha-mikdash in fulfillment of the
mitzva of aliya le-regel (making a pilgrimage to the
This issue is addressed by the Meshekh Chokhma (in Parashat Pinchas), who, astonishingly enough, indeed concludes that under normal conditions, all Benei Yisrael were exempt from the mitzva of sukka by virtue of their preoccupation with their festival pilgrimage. He introduces as well the factor of mitzta'er, the halakhic principle exempting one from the sukka obligation when conditions are such that the sukka would cause him discomfort. Finding a proper and comfortable sukka would presumably cause most travelers considerable hardship, and they would thus be exempt from this obligation.
On this basis, the Meshekh Chokhma seeks to explain the otherwise
perplexing absence of the mitzva of sukka from the Torah's
discussion of the festivals in Parashat Pinchas (Bamidbar 29). Although the Torah here focuses
specifically on the musaf offerings brought on the festivals, it
nevertheless makes some reference to the special mitzvot that apply on
the various holidays. Its
presentation of the musaf offering on Pesach begins by mentioning the
korban pesach and the obligation to eat matzot (Bamidbar
28:16-17), and it describes Shavuot as the day when the "new offering" – namely,
the korban shetei ha-lechem – is brought (Bamidbar 28:26). Likewise, Rosh Hashanah is introduced as
a "yom teru'a" (day when the shofar is sounded – 29:1), and the
Torah includes the obligation of fasting in its discussion of Yom Kippur
(Bamidbar 29:7). Sukkot, by
contrast, is depicted as simply a chag le-Hashem – a "festival to the
Lord" (29:12), without any reference made to the obligation of
sukka. In fact, the Torah
here does not even call this festival by the name "Sukkot." The Meshekh Chokhma explains that
since the Torah here concerns itself with the musaf offering, which
obviously required the presence of the Beit Ha-mikdash, it makes no
reference to the obligation of sukka, which, practically speaking, did
not apply during the time of the
The Meshekh Chokhma's theory is, of course, a revolutionary one, which most other writers did not accept. Tomorrow we will iy"H present several other approaches taken in resolving the question posed by the Chelkat Yoav.
******
Yesterday, we began discussing a question raised by Rav Yoav Weingarten
(author of Chelkat Yoav) as to the obligation of sukka during the
time of the Beit Ha-mikdash, when the Jews were required to visit the
Rav David Mandelbaum, in his annotation to Rav Weingarten's work Kaba De-kashyeta, addresses this question at great length and cites numerous approaches taken by many different scholars. Rav Chananya Yosef Eizenbach suggested an answer based on a comment cited in the Or Zarua (183) in the name of Rav Matityahu Ben Rabbenu Yitzchak. Rav Matityahu took note of the Gemara's formulation in establishing the exemption for those traveling to perform a mitzva – "holekhin le-dvar mitzva" ("traveling for a mitzva purpose"), which might imply that it refers only to the period of travel. Once the travelers reach their destination, they are no longer exempt from the obligation of sukka. Although the exemption applies even at nighttime, when the travelers lodged, this is true only until they arrive at their destination. Once they are no longer in transit, they are again under the obligation of sukka like all others.
If so, then pilgrims visiting the Beit Ha-mikdash for the
mitzva of aliya le-regel are obligated in the mitzva of
sukka once they arrive in
It should be noted, however, that the Gemara (Sukka 10b) tells of two Amora'im who went to visit the exilarch during Sukkot, and Rav Nachman, the administrator of the exilarch's residence (Rashi), had these Amora'im sleep in an invalid sukka. The Gemara explains that they were exempt from the mitzva because they were involved in the mitzva of visiting the exilarch, and Rav Nachman thus did not make a point of finding a proper sukka for them. It appears from the story that these travelers were exempt from the sukka obligation even upon their arrival at the exilarch's residence, calling into question this view of Rav Matityahu.
A different approach might be suggested on the basis of a comment of the
Rosh (Sukka 2:6), who wrote that students traveling to their rabbi are
exempt from sukka because the time and energy they would invest in
arranging for a sukka would detract from their studies with their
rabbi. This explanation of the
exemption might suggest that we examine each case individually, and determine
whether or not the traveler's efforts in securing a sukka would indeed
disrupt his performance of the mitzva for which he travels. If so, then with regard to aliya
le-regel we might conclude that the status of the sukka obligation
would depend on a given individual's circumstances. If the efforts to find a sukka would somehow detract from his visit to the
The Ra'avya, cited by the Hagahot Oshri (Sukka 2:9), offers a slightly different
explanation for why the travelers are exempt even from sleeping in the sukka at night, when they are not involved in the
mitzva: "Since when they rest and sleep
comfortably at night they can better involve themselves [in the mitzva] the following day, they are thus
considered involved in a mitzva."
The Ravya appears to apply the exemption even if the efforts to find a
proper sukka would not directly detract from the fulfillment of the mitzva.
Halakha allows people who travel for the purpose of
a mitzva to sleep indoors, rather than in a
sukka, so that they will be well-rested and alert
the following day for the performance of the mitzva.
The Ravya appears to make this comment with regard to all cases of
mitzva travelers, whose mitzva performance would be enhanced by a good
night's sleep. Seemingly, then,
pilgrims arriving in
Tomorrow we will iy"H present two other approaches taken to
resolve this question.
******
Today we will conclude our discussion concerning the question raised by
the author of the Chelkat
Yoav as to whether or not the
obligation of sukka applied in the times of the
Rav David Mandelbaum, in his annotation to the work Kaba De'kashyeta, cites an answer from the work Kaba De-nichuta, which claims that aliya le-regel does not absolve one from sukka because, quite simply, the Torah explicitly
requires that one accomplish both on Sukkot. By demanding that the festival
observance include both a pilgrimage and dwelling in a sukka, the Torah indicates that the exemption
does not apply with regard to aliya le-regel, and hence the festival pilgrimage does not absolve a
person of the obligation of sukka.
Rav Baruch Mordechai Ezrachi suggested an entirely different approach, claiming that Halakha exempts a traveler from the mitzva of sukka only if the journey itself constitutes the fulfillment of a mitzva. If the journey is merely a necessary means of performing the mitzva, then the travelers must sleep in the sukka during the night when they lodge. Rav Ezrachi arrives at this theory on the basis of Rashi's comments in Masekhet Sukka (25a), where he gives three examples of people who travel for a mitzva purpose and are thus absolved from the sukka obligation: 1) students traveling to learn Torah; 2) one who travels to greet his rabbi on the festival; 3) one who travels to release Jewish captives. Why, Rav Ezrachi asks, did Rashi point specifically to these examples? He suggests that what these three journeys have in common is the fulfillment of a mitzva by virtue of the travel itself. One who journeys to greet his rabbi gives honor and respect to the rabbi by the effort exerted to greet him. Likewise, the mitzva of pidyon shevuyim (ransoming captives) requires the investment of effort to secure the release of Jewish captives; one who invests the effort fulfills the mitzva even if it does not yield the desired results. Therefore, the travel time independently constitutes the fulfillment of a mitzva. As for Torah study, the Gemara towards the end of Masekhet Berakhot (63b) lauds a student who travels vast distances to study Torah, labeling him a mevakesh Hashem, one who "seeks out God." Rav Ezrachi infers from this comment that one fulfills a mitzva by traveling to learn Torah, even before he actually begins studying upon arriving at the yeshiva.
The mitzva of aliya le-regel, by contrast, is described by
the Rambam (beginning of Hilkhot Chagiga) as requiring that one appear in the
courtyard of the Beit Ha-mikdash.
This would suggest that the trip to