Succah 22b - Using a Succah in a Tree

The Mishna says that if one makes a Succah in a tree, it is kasher but one cannot use it on yom tov because there is an issur to climb up a tree on yom tov. The Sefas Emes points out that it would even be assur to climb the tree before yom tov and wait until yom tov starts. He proves that it would be a violation from the fact that R. Yehuda considers a Succah in a tree not fit for the 7 days of Succos. If it were possible to go up before yom tov, it should be considered fit for 7 days to at least use on chol hamoed.

Rashi writes that in addition to one using it on chol hamoed, if one used it on yom tov b'issur, they would fulfill their mitzvah of Succah. The Pri Megadim points out that this should be a mitzvah haba'ah b'aveira since the mitzvah is completely contingent on doing the aveirah. In my sefer, I pointed out that this Rashi may hold that there is no problem of mitzvah haba'ah ba'aveira when the aveira is only d'rabonon. Otherwise, it is very difficult to understands why one would be yotzei. Perhaps Rashi means to say that on a d'rabonon level it would be a mitzvah haba'ah ba'aveira, but on a d'oraysa level there is no aveira, therefore m'drabonon one is not yotzei, but m'doraysa one would be yotzei. The Mishna Berura (628:3) cites a machlokes between the pri megadim and bikurei yaakov whether one should use such a Succah if that is all they have. The Pri Megadim entertains that one can use the Succah to fulfill the mitzvah d'oraysa, whereas the bikurei yaakov says that the chachamim uprooted the mitzvah בשב ואל תעשה, which they have the authority to do. According to the Pri Megadim that one should actually use such a Succah to fulfill the d'oraysa, we can understand that Rashi means to say that one is yotzei m'doraysa, just not m'drabonon.

Succah 16a - Placing Sechach Before the Walls

The Rama (635) cites the Hagahos Maimonies that when one is building a succah they should be careful to first make the walls of the Succah so that at the time they place the sechach on top, the placing of the sechach will render it a kosher Succah. This seems to be against the gemara that says that as long as there is a חלל טפח when one placed down the גדיש, pile of hay, they can then be חוטט בגדיש (carve out a space in the pile) and it would be a kasher succah. In this case the sechach is being placed prior to the walls being formed, yet it is okay. The Rama deals with this question by qualifying the din  - ואם עשה טפח סמוך לסכך מותר לסכך קודם שיעשה שאר הדפנות כמו בחוטט בגדיש. Meaning, that so long as one has a 1 tefach wall at the time they place the sechach, it is permitted to construct or carve out the rest of the wall after placing the sechach. The justification for this is that the hagahos maimonies understands that the succah doesn't need to be kosher the moment the sechach is placed on top, rather the sechach must be placed on top of a succah that is considered to have walls, even if the walls are just a tefach.

The Magen Avrohom cites the Bach who says that it is only a din lichatchila, but bidieved even if one placed the sechach before forming the walls it would be kasher, and the Levush disagrees and holds that it is passul. The source of the Bach is a Rashi in the Mishna 16a that is cited by the Bach. Rashi describes one who is making the walls of the Succah מלמעלה למטה - שהתחיל לארוג המחיצה אצל הסכך ואורג ובא כלפי מטה. It seems from rashi that the sechach is already up on the Succah and he is starting to construct the walls "אצל הסכך", implying that as of yet there are no walls, yet by forming the walls, the Succah will be kasher. The Taz rejects this proof because Rashi is not intending to describe the sechach being on the succah, he is merely trying to describe the location where he is starting to make the wall, and that is near where the sechach would be. Rashi is not intending to say that the sechach is already there. Therefore, the Taz rules like the levush, against the Bach, and holds that if the sechach is placed before the walls are formed, the Succah will be passul m'doraysa.

To me it seems that although there may not be a proof from the Rashi cited by the Bach, there is another Rashi that clearly holds that the argues on the Hagahos Maimonies who is the source of this chumrah. The Hagahos Mamimonies must understand that the case where one piles a גדיש on a חלל טפח is where there are already walls that are a tefach in width on which he is putting the gadish, and then carving out the other 9 tefachim to form 10 tefach walls. According to this approach the focus should be on the fact that there was a tefach of wall that exists prior to the placing of the gadish (which serves as the sechach). However, when Rashi explains this gemara, he doesn't focus on the walls at all. Rashi seems to understand the the requirement of having a חלל טפח at the time that one places the gadish is because without airspace of a tefach, the gadish cannot qualify as sechach. It sounds from Rashi that even if there were no planks of wood under the gadish that can serve as walls, so long as the gadish will be lifted from the ground by a tefach and form a tefach of hollow space underneath, one can then be חוטט בגדיש to create 10 tefach walls. This is clear from Rashi who writes that the problem without a חלל טפח  is - דעכשיו נעשה שם סכך מאליו ולא היה עליו שם סכך מתחילה, and the solution of having a חלל טפח is -

נמצא שם סכך על אותו גדיש, וכשחוטט מלמטה למעלה עד שמגביה את החלל לשיעור גובה עשרה אין זו עשייתו שהרי אינו מתקן אלא הדפנות, ובדפנות לא אמרינן תעשה ולא מן העשוי

Rashi does not at all focus on whether or not the boards under the gadish that create a chalal tefach are placed in a way that they are fit to serve as walls. The entire focus is that the gadish be placed so that at the time it is placed, it creates a chalal tefach. So long as it creates a chalal tefach, the entire construction of the walls can take place AFTER the placing of the sechach. Being that this sugya is the source of the Hagahos Maimonies, and Rashi seems to understand the gemara differently and holds that there is no requirement for walls to exist at all prior to placing the sechach, there is no source for this din. This is all to develop the shitah of Rashi but l'ma'asah, we are bound by the Rama who paskens like the Hagahos Maimonies.

Succah 16b - Mechitzah HaMateres

Rashi learns that the prohibition of making an ohel only applies to using a curtain as a roof, but using a curtain as a wall is permitted. Rashi seems to hold that even if the mechitzah is functional to permit carrying, it can be made on shabbos. Tosafos disagrees with Rashi and writes that just as we find in the gemara that the third wall of the Succah which will be machshir the Succah cannot be made on Shabbos, any mechitzah hamateres cannot be made on shabbos. Tosafos holds that a mechitzah that is meant to permit carrying is also a mechitzah hamateres and cannot be made on shabbos. Based on Tosafos, the Rama 315:1 writes that one cannot make a mechitzah in front of a lit candle to permit having relations because that is also a מחיצה המתרת and is assur to make on shabbos. There is a gemara in Beitzah that seems to contradict this. The gemara 22a seems to hold that it is permissible to build a wall to block the light of a candle. The Taz writes on Hilchos Yom Tov (514) that if it is permitted to put out the candle, it would also be permitted to make a wall. However, the Chazon Ish (52:14) disagrees with the Taz. Even if it is permitted to put out the candle, it should be forbidden to put up a curtain. It would be similar to saying that since one can eat in  another Succah, they can put up a wall in this one. Why would the ability to put out the candle permit the making of the wall! The Chazon Ish explains that the answer is as the Magen Avrohom says. All one needs for a candle is to block the light, therefore the mechitzah that blocks a candle doesn't need to have status of a mechitza so long as it blocks the light. The mechitzah would be the equivalent to the candle going out which permits having relations without constructing a mechitzah hamateres. Based on the Magen Avrohom it comes out that if the mechitzah blocks out the light it would not be a mechitzah hamateres and be permitted, but if it doesn't block the light then it would only work because it is a mechitzah and therefore forbidden. The Chazon Ish continues that the Magen Avrohom also says that if one doesn't tie the curtain on the bottom, it will not be considered making a mechitzah since it can blow in the wind but the Chazon Ish disagrees and says that since it is being built in a house where there is no wind, it qualifies as a mechitzah even if it is not tied down.

Succah 10b - Osek B'mitzvah D'rabonon

The gemara cites a machlokes between R. Nachman  and R. Chisda regarding decorations that hang more than 4 tefachim below the roof, whether it invalidates the Succah. Although R. Chisda and Raba Bar Rav Huna held that it does invalidate the Succah, when they were travelling to visit the Reish Gelusa for the Yom Tov they slept in such a Succah. Their rationale was that although in their opinion the Succah is passul, they were שלוחי מצוה and therefore exempt from sleeping in a Succah. Rashi comments that they were considered shluchei mitzvah because they were going to greet their rebbi  - שלוחי מצוה אנן, להקביל פני ראש גולה, דחייב אדם להקביל פני רבו ברגל. It is unclear to me why rashi needs the additional phrase of דחייב אדם להקביל פני רבו ברגל. Does Rashi mean to say that since chazal instituted that one must visit his Rebbi on Yom Tov (Rosh Hashana 16), therefore it was considered a mitzvah to exempt from succah but had there not been a specific obligation to go then it would not exempt. Or does rashi mean to simply say that we see from there that there is a mitzvah involved in visiting one's rebbi so regardless of when goes to visit their rebbi they would be exempt from other mitzvos that come their way? It seems from Rashi that it was specifically because there was an obligation at that time to visit one's rebbi that they were able to go knowing that they would likely miss out on the mitzvah of succah, otherwise they should have waited and gone a different time.

In my sefer Nasiach B'Chukecha (pg. 63) I have a discussion whether we say עוסק במצוה דרבנן exempts one from a mitzvah d'oraysa. I quoted that Rav Eliyashiv cites our gemara as a proof that even a mitzvah d'rabonon exempts from mitzvah d'oraysa, because greeting one's Rebbi is only learned מדברי קבלה, yet it is apparently considered a mitzvah to exempt from Succah. Today I found that the Mitzpeh Eisan makes exactly the same point. He draws a parallel from the gemara in Sanhedrin 70 where the gemara says that if a ben sorer u'moreh eats meat that is assur m'drabonon he doesn't become a ben sorer u'moreh. The gemara explains that the pasuk says ואיננו שומע בקולנו, he doesn't listen to the voice of his parents implying that that is the only voice stopping him from eating the meat - לאפוקי האי דאף בקולו של מקום איננו שומע. Just as in that context we regard an issur d'rabonon to be like a d'oraysa and it doesn't qualify as קולנו, so too by osek b'mitzvah which is learned from בלכתך בדרך - בלכת דידך, to exclude a mitzvah, an mitzvah d'rabonon would also qualify as a mitzvah.
The Ya'avetz is medayek from Tosafos that they disagree with Rashi. Tosafos writes - שלוחי מצוה אנן, וכגון שהיו מתבטלים מן המצות אם היו מחזרין אחר סוכה אחרת, that the mitzvah they would have lost was not merely the mitzvah of greeting their rebbi, but other mitzvos. If greeting their rebbi was the only mitzvah they would have lost, they would not be exempt from succah. Tosafos implies that there were other mitzvos that were presumably d'oraysa that they would have lost out on, had they made the effort to sleep in a succah.

Nonetheless, in my sefer I pointed out that from this proof we only see that a mitzvah d'rabonon which is a kiyum of  a d'oraysa such as honoring a Rebbi, exempts from a d'oraysa mitzvah. But we still don't see that a pure d'rabonon which is not at all a kiyum of a d'oraysa would exempt from a d'oraysa obligation.

Succah 9a - "Old" Succah

There is a machlokes beis shamai and beis hillel regarding a succah made more than 30 days prior to succos. Beis Shamai holds that it is passul and Beis Hillel holds that it is kasher. The Mishna ends off by saying that if a Succah was built לשם חג, even if built from the beginning of the year it is kasher. Rashi says that the last line of the Mishna is only necessary for Beis Shamai because according to Beis Hillel it is kasher anyway. Tosafos on the other hand cites the Yerushalmi that holds that even Beis Hillel partially admits to Beis Shamai that if built not לשם חג more than 30 days prior to Succos it is necessary to be מחדש בה דבר, meaning to redo some amount of sechach spanning accross the width of the succah. Based on this Tosafos explains that the last line of the Mishna can fit with Beis Hillel as well. The advantage of constructing the Succah לשם חג is that he will not need to be מחדש בה דבר. Rashi seems to understand that the Bavli which makes no mention of this requirement within Beis Hillel would apparently hold that it is unnecessary to do anything. Since Beis Hillel holds that a Succah doesn't need to be built for the purpose of Succos, it would not be necessary to be mechadesh anything in the Succah.

According to Tosafos who holds that within Beis Hillel it would be necessary to be מחדש בה דבר if built too early and not לשם חג, it would seem that it would only be a d'rabonon requirement, not d'oraysa. The gemara is clear that Beis Hillel rejects the pesukim that Beis Shamai would use to indicate that a Succah needs to be built לשם חג. Therefore, even Beis Hillel would have no Torah source to demand being מחדש בה דבר, so apparently it would only be d'rabonon. The Mishna Berura (636:4) explains that the din of being מחדש בה דבר is not even an absolute din d'rabonon, it is just a mitzvah lichatchila so that one does not come to use something made as their permanent residence as their succah which would be a p'sul d'oraysa.

According to Tosafos we would require even by סוכת גנב"ך which was made for shade but not for Succos, that they be מחדש בה דבר. However, what would be the halacha for סוכת גנב"ך that is made within 30 days of Succos? How does the concept of סתמא לשמה work when it is not even being made by those who are obligated in the mitzvah? Would it even work for Succos that are built by those who are not obligated in the mitzvah and never heard of the mitzvah?

This would depend on how we understand the concept of סתמא לשמה. If the concept is based on the assumption that any Succah built within 30 days of Succos is assumed to be built for succos so even if the person didn't have explicit intent, we are confident that if we were to ask him he would confirm that would have been his intention. According to this approach, a Succah built by a goy even within 30 days one would need to be mechadesh something because for a goy there is no סתמא לשמה. But if we understand that concept similar to how the Steipler at the beginning of Zevachim and Dibros Moshe (Gittin heara 126 - pg. 544) in the context of a korban being סתמא לשמה, that there is an automatic infusion of לשמה since the korban is designated for that purpose, here too we can say that within 30 days of Succos it is automatically infused with lishma. In other words, is the סתמא לשמה a din in the gavra that we assume his subconsciousness would want it to be lishma (which would not apply for a goy) or is it a din in the z'man that anything built during that time assumes a status of built for the chag (which would apply even if a goy builds it). By Rashi citing the concept of שואלין ודורשין קודם לחג ל' יום as the reason we assume that within 30 days of succos it is סתמא לשמה, it seem that the latter approach that the z'man is automatically infused with kedusha is correct. Based on this approach it would not be necessary to be mechadesh something even in a סוכת גנב"ך. However, the Mishna Berura (536:4) citing the achronim takes for granted that one would need to be mechadesh something in a סוכת גנב"ך.

Succah 7b - Diras Keva

The gemara lists 8 Tanaim who hold that for a Succah we require a דירת קבע, a permanent dwelling and it is not sufficient to have a diras ara'i. Tosafos points out that it is unnecessary and impossible that each of the 8 opinions will hold of each other, and there is clearly discrepancy between them, but conceptually they all agree that on some level we demand דירת קבע.

For the most part, each of the opinions cited by the gemara seems to say that the succah MUST be built in a way that resembles a more permanent structure, like a house, rather than a temporary structure. Rashi's language is - דירת קבע: ראויה להשתמש קבוע ונראית כבית, fit for permanent use and looks like a house. Some opinions make demands in the size of the Succah, such as Rebbi who requires 4 amos and Beis Shamai who requires that it fit the person and his table. Some make a demand in the place of the succah such as Rabban Gamliel who says that it cannot be built on a boat or wagon. Some make a demand in the shape such as the Acheirim who say it cannot be built circular, and Rebbi Eliezer who says that it must have distinct walls and a distinct roof, and R. Yoshiya who says that the walls are as significant as the roof and must not allow too much sun in. Included in the list is also R. Shimon who demands that the Succah contain 4 walls (just that the third can be a tefach). The gemara 6b has two explanations for R. Shimon, one is that it learns from the words סוכת סוכת סוכות that a Succah must contain 4 walls, and another is the pasuk of וסוכה תהיה לצל יומם which demands that a Succah be constructed with enough walls to prevent rain being blown in from the sides. Rashi seems to understand that only within the latter opinion of Rav Masnah can we prove that according to R. Shimon a Succha is a דירת קבע. According to the opinion that learns that we need 4 walls from the words סוכת סוכת סוכות, it is more of a technicality, but according to Rav Masnah it is a requirement in the structure and construction of the Succah that the walls help prevent rain from entering. Only according to Rav Masna who considers the requirement of 4 walls to be a structural requirement can we prove that he holds of Diras Kevah.

Another opinion that is part of this list is the opinion of R. Yehuda who holds that a Succah can be built higher than 20 amos. Although the gemara 2a had many approaches to explain the opinion of Rav Yehuda, the gemara seems to consider the approach of Rava to be the primary approach, that we require a diras keva. Tosafos points out that even the opinions who disagree with Rava earlier would still maintain that according to R. Yehuda we need a diras keva, otherwise Abaye who rejects Rava earlier, should not be counting R. Yehuda as one of the opinions who demand diras keva. However, there is another problem with making R. Yehuda part of this list. The list is of those who demand that the Succah MUST be made in a particular way that has properties of a house - דירת קבע. Rav Yehuda doesn't seem to make any demand. He would certainly permit a lower Succah and presumably one that is not built as a דירת קבע, so how can he be part of this list? Tosafos seems to struggle with this as well. Tosafos explains that although R. Yehuda doesn't demand that it be built above 20 amos, the only reason he would permit it to be built above 20 amos is because he is assuming that no matter how high it is built, it is going to be built as a more permanent and fixed structure. Since despite the height it will be build in a permanent fashion, R. Yehuda holds that it makes no difference how high or low it is built. But had he held that it need not be build as a דירת קבע, he would not permit it to be above 20 amos.

Finally, Tosafos points out that the gemara in Yoma 10a assumes that if succah is a דירת קבע, then it would oblige a mezuza. Based on this Tosafos is forced to say that when R. Meir exempts the outer succah of the pottery maker from mezuza (8b), that is only the rest of the year, but during succos where he requires a diras keva he would also require a mezuza. This concept seems very different from the list of opinions who require diras keva. All the opinions who require a diras keva are saying that the succah must be built in a specific way, but what does this have to do with requiring a mezuza? Tosafos seems to understand that the diras keva has two applications, one is how the succah is built, the second is the status that the succah assumes after it is built. Any opinion who holds that the succah must be constructed as a diras keva, will also hold that after being built it will assume a halachic status of דירת קבע requiring a mezuzah.

We pasken that succha is a דירת עראי and therefore would not oblige a mezuzah. There is a machlokes whether just as holding that succah is a diras keva would necessitate a mezuza on a place that would otherwise be exempet, so too holding that succah is a דירת עראי would exempt from mezuza a place that would otherwise be obligated. The Pri Megadim (cited in MB end of 626) that by having status of a Succah it is automatically exempt from mezuza because the status of דירת עראי exempts it. Rav Moshe (O.C. 5:40:1) disagrees and holds that any place that would necessitate a mezuza the rest of the year would also be obligated in a mezuza on succos. The point of argument would hinge on how to learn the gemaras question and answer on 8b regarding the סוכת היוצרים that asks - ואמאי, תהוי חיצונה כבית שער הפנימית ותתחייב במזוזה, and answers משום דלא קביע. If it is speaking about during Succos and assuming דירת עראי, it would support Rav Moshe, but Tosafos who interprets that it is speaking about the rest of the year and not during succos, there is no proof from there whether דירת עראי exempts or doesn't exempt from succah.

Succah 3b - Mezuza on a Small House

The Braisa says that a house that is less than 4x4 Amos is patur from Mezuzah among other things that a small house doesn't qualify for. The gemara says that although to connect 2 cities by being with 70 2/3 Amos even בורגנין which are little huts used for a night work to connect the two cities, a house less than 4 amos does not. The gemara explains הני חזי למילתייהו והני לא חזי למילתיה, the huts are completely functional for what they are meant for, whereas a house that is less than 4x4 is unfit for what it is meant for. The Rashash claims that this supports the opinion of the Chamudei Daniel in Hilchos Mezuza cited by the Pischei Teshuva who says that a בית שער that is less than 4x4 requires a mezuza since it is completely usable and functional for what it is meant to be used for. The Chamudei Daniel holds that only areas that are meant to have the full function of a room must be at least 4x4 amos to be obligated in mezuza, but rooms that have a specific use that does not demand those dimensions are obligated in mezuza regardless. The Rashash considers the gemara to be a proof to the chamudei daniel.

In my opinion there is no proof at all from this gemara to support the approach of the chamudei daniel. Within the list of items in the braisa that demand the house to be 4x4 amos, there are two sections. All the d'oraysa mitzvos such as mezuza, ma'akeh, tzara'as, returning from battle and redemption in a walled city are based on the technicality that the Torah uses the term בית, and less that 4x4 doesn't meet the technical definition of a בית. The other Halachos that are Eiruvin related are not contingent on the technicality of being called a בית, rather on the functionality of a בית דירה, and when it is less than 4x4 it isn't suitable for a בית דירה. Within the second group the gemara makes a distinction between a house and a hut in that a hut is fit for its purpose even when it is small. This sevara helps to give the hut which doesn't serve as a full בית דירה to nonetheless qualify as being suitable as a בית דירה. However, halachos that are contingent on the technicality of being called a בית, such as mezuza, even if they are suitable and functional, do not meet the standard definition of  a בית, and are therefore patur from mezuza.

Succah 2b - Hilni HaMalka

The gemara cites a braisa where the chachamim went to visit Hilni HaMalka and found her sitting in a Succah higher than 20 amos and didn't say anything to her.  Rav Yehuda uses this as a proof that a Succah higher than 20 amos is still kasher. Although a woman is patur from Succah so there is no proof from their allowing her to remain in such a succah, the gemara says that since she had 7 sons which must include children above the age of chinuch, she would have followed the chachamim who told her to ensure that the Succah was kasher for them. Rav Yehuda therefore concludes that their silence indicates that they considered it to be a kasher succah.

There is a discussion in Tosafos Eiruvin 96a whether a woman who does a מצות עשה שהזמן גרמא is in violation of ba'al tosif. The Maharatz Chiyus points out that our gemara should prove that it is not a violation of ba'al tosif, otherwise Hilni HaMalka should not have been allowed to sit in a Succah. The Maharatz Chiyus explains that perhaps the opinion of the Rabbonon was that since the Succah was indeed passul above 20 amos, they allowed her to remain in it without a concern of ba'al tosif.

There is a major machlokes between the Rambam and Tosafos (Kiddushin, Rosh Hashana) which develops into a machlokes between the Mechaber and Rama (hilchos tzitzis) whether women can make a bracha on מצות עשה שהזמן גרמא. Although we don't consider it ba'al tosif, and consider it to be a kiyum mitzvah, the mechaber holds that it is not a sufficient level of mitzvah to warrant a bracha, whereas Tosafos and Rama hold that it is a mitzvah that warrants a bracha. According to Tosafos and the Rama it should follow that Hilni HaMalka was likely making a Bracha on the Succah, therefore even if the Rabbonon held that she and her children didn't need a kasher succah, they should have said something to her to prevent her from making a bracha l'vatala? The fact that the Rabbonon justify not mentioning that the Succah was passul because she was exempt from the mitzvah implies that she wasn't making a bracha, which supports the opinion of the Mechaber and Rambam.

I once visited a single older woman on Succos and realized that her succah that she was very proud of was completely passul. I was considering whether or not to tell her. This gemara seems to support the idea that it is unnecessary to say anything. Fortunately she was a sefardi woman who didn't make brachos on mitzvos. Had she been making a bracha on the Succah, I am not sure if there would be justification to remain silent.