Daf Ditty Succah 9: Stolen Succah

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MISHNA: With regard to an old sukka, Beit Shammai deem it unfit for the mitzva of sukka
and Beit Hillel deem it fit. And which is considered an old sukka? It is any booth that one
established thirty days or more prior to the festival without expressly designating that it was for
the mitzva of sukka. In that case, the assumption is that he constructed it for some other purpose.
However, if he established it expressly for the sake of the festival of Sukkot, even if he
constructed it at the beginning of the previous year, it is fit for use in the fulfillment of the mitzva
of sukka, even according to Beit Shammai.

GEMARA: The Gemara asks: What is the rationale for the opinion of Beit Shammai? The
Gemara explains that it is as the verse states:
‫ ַבֲּחִמָשּׁה‬:‫ ֵלאֹמר‬,‫ְבֵּני ִיְשׂ ָרֵאל‬-‫לד ַדֵּבּר ֶאל‬ 34 Speak unto the children of Israel, saying: On the
‫ ַחג ַהֻסּכּוֹת‬,‫ ַלֹחֶדשׁ ַהְשִּׁביִﬠי ַהֶזּה‬,‫ָﬠָשׂר יוֹם‬ fifteenth day of this seventh month is the feast of
.‫ ַליהָוה‬,‫ִשְׁבַﬠת ָיִמים‬ tabernacles for seven days unto the LORD.
Lev 23:34
“The festival of Sukkot is seven days unto the Lord” indicating that we require a sukka
established for the sake of the festival. A sukka not constructed expressly for the festival is unfit.

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The Gemara asks: And how do Beit Hillel interpret this verse? The Gemara answers: In Beit
Hillel’s opinion, that verse is necessary to teach in accordance with the statement of Rav
Sheshet, as Rav Sheshet said in the name of Rabbi Akiva: From where is it derived that use
of the wood of the sukka is prohibited for any purpose other than for the sukka all seven days of
the Festival, and it is designated exclusively for the mitzva? It is derived as the verse states: “The
festival of Sukkot is seven days unto the Lord.”

And it is taught in a baraita in explanation that Rabbi Yehuda ben Beteira says: Just as the
name of Heaven takes effect upon the Festival peace-offering, so too, the name of Heaven
takes effect upon the sukka, as it is stated: “The festival of Sukkot is seven days unto the
Lord”; just as the Festival offering is consecrated to the Lord, so too, the sukka is consecrated
to the Lord.

And Rav Yehuda related: When I stated this halakha in the name of Rav before Shmuel, he said
to me: Even ritual fringes tied from balls of thread are unfit, as we require the spinning of the
thread to be for the sake of the mitzva. Just as the threads for the ritual fringes must be spun for
the sake of the mitzva, here too, let us require a sukka established for the sake of the mitzva.

‫ַא ְרַבּע ַכּ ְנפוֹת‬-‫ ַﬠל‬,]‫ָלּ‬-‫ ַתֲּﬠֶשׂה‬,‫יב ְגִּדִלים‬ 12 Thou shalt make thee twisted cords upon the four corners
{‫ }ס‬.‫ָבּהּ‬-‫ ֲאֶשׁר ְתַּכֶסּה‬,i‫ְכּסוְּת‬ of thy covering, wherewith thou coverest thyself. {S}
Deut 22:12
The Gemara answers: It is different there, as the verse states:

“You shall prepare for you fringes” from which it is derived: “For you,” for the sake of your
obligation. The fringes, from the beginning of their production, must be produced for the sake of
the mitzva. The Gemara asks: Here, too, with regard to sukka, the verse says:

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 ‫ ִשְׁבַﬠת‬,i‫יג ַחג ַהֻסֹּכּת ַתֲּﬠֶשׂה ְל‬ 13 Thou shalt keep the feast of tabernacles seven days, after that
.i‫ וִּמ ִיְּקֶב‬,i‫ִמָגּ ְר ְנ‬--i‫ ְבָּאְסְפּ‬:‫ָיִמים‬ thou hast gathered in from thy threshing-floor and from thy
winepress.
Deut 16:13

“You shall prepare for you the festival of Sukkot”. Shouldn’t it be derived: “For you,” for the
sake of your obligation?

The Gemara answers that this term “for you” is required to exclude use of a stolen sukka;
establish the sukka for you, and do not use a sukka belonging to another. The Gemara asks: There,
too, with regard to ritual fringes, isn’t the term “for you” required to exclude use of stolen ritual
fringes?

MISHNA: With regard to one who establishes his sukka beneath a tree, it is as though he
established it inside the house, and it is unfit. If one established a sukka atop another sukka, the
upper sukka is fit and the lower sukka is unfit. Rabbi Yehuda says: If there are no residents
in the upper sukka, the lower sukka is fit.

GEMARA: Rava said: They taught this halakha that a sukka beneath a tree is unfit only with
regard to a tree whose shade is greater than its sunlight, as the source of the shade in the sukka
is the tree and not the roofing. However, if its sunlight is greater than its shade, the sukka is fit,
as in that case the roofing provides the shade.

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The Gemara asks: From where does Rava reach this conclusion? The Gemara answers: He learns
this from the fact that the mishna teaches: It is as though he established it inside the house.
Why do I need the mishna to teach: It is as though he established it inside the house? Let the
mishna teach simply: It is unfit. Rather, this is teaching us that in the context of this halakha, a
tree is similar to a house; just as with regard to a house, its shade is greater than its sunlight,
so too, with regard to a tree, it invalidates the sukka only if its shade is greater than its sunlight.

The Gemara asks: And even if the sunlight is greater than the shade of the tree, what of it?
Why does Rava deem the sukka beneath the tree fit in that case? Isn’t there unfit roofing, the
uncut branches of the tree, joining together with the fit roofing on the sukka, rendering even the
fit roofing on the sukka unfit? Rav Pappa said: This is referring to a case where one lowered the
uncut branches and combined them with the fit roofing so that the branches still attached to the
tree are inconspicuous. Given that the majority of the roofing is fit, the roofing in its entirety is fit.

Summary

A new Mishna teaches us of about sukkot that are built more than 30 days before the festival. Beit
Shammai deems these sukkot unfit, while Beit Hillel deems them fit. However, Beit Shammai
concedes that the sukka can be fit if it is modified before the festival. The modification can be a
handbreadth of roofing, or any measure that stretches along the length of the sukka. The Gemara
looks to clarify and find proofs for their assertions, including questioning when we prepare for
Sukkot and whether or not the wood used for the sukka is sanctified.1

Rav Yehuda quotes Rav to prove that we must be stringent in how we practice the mitzvot. He
uses the example of tzitzit that are woven with sub-standard thread. In fact, he asserts that the
thread for tzitzit must be found, woven and tied with the intention of fulfilling the mitzva of
tzitzit. Thus, the construction of the sukka must be intentional from start to finish, according to
Rav Yehuda.

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Amud (b) begins with another Mishna: a sukka built under a tree is like a sukka built in a house:
unfit. A sukka built on top of another sukka might be unfit; however, Rabbi Yehuda says that the
lower sukka is fit as long as there are no residents in the upper sukka.

The Gemara moves into a discussion of why a sukka under a tree is unfit. First off, we are
supposed to step out of our homes and into the sukka, which is why sukkot cannot be inside of our
homes. And if a tree is like a home, then the sukka under a tree is automatically unfit - there is no
need for other proofs. But of course, the rabbis do not stop there. They question the shade/sunlight
of the tree, the placement of the tree's branches, when the tree was planted, the existence of unfit
roofing (ex. grapevines), and other mitigating factors. The rabbis are mindful of the fact that at
least four by four cubits of the roof must be fit.

Regarding the instance of a sukka atop another sukka, the rabbis argue about whether we are
commanded to reside in one sukka or in two sukkot; the wording of the mitzvah might be
unclear. Rabbi Yirmeya suggests that there are times when both upper and lower sukkot are fit,
when both are unfit, when the upper alone is fit and when the lower alone is fit.

When are both fit? When the lower sukka benefits from the greater measure of shade in the upper
sukka AND when the upper sukka is less than twenty cubits high.

When are both unfit? When the upper sukka is more than twenty cubits high, though the shade is
greater than the sunlight in both sukkot.

There is a picture of this 'piggybacking' sukka in the Koren Talmud. I have to wonder how often
people built one sukka on top of another sukka. Perhaps the hot weather and small courtyards
encouraged people to become creative in their construction. Or perhaps this seemed like the most
appropriate interpretation of 'living in sukkot', plural dwellings. Whatever the reason, it is tough
for me to imagine dwelling in a double sukka for the week of the Festival.

Rav Avrohom Adler writes:2

There is a debate in the Mishna regarding a Sukkah that was made more than thirty days prior to
Sukkos and was constructed with a specific intention to be used for Sukkos. Bais Shammai
maintains that the Sukkah is invalid because it was not made for the sake of the mitzvah whereas
Bais Hillel maintains that the Sukkah is valid.

2
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There is a debate regarding what is derived from the verse that states the festival of Sukkos, for
seven days, unto HaShem. Bais Shammai maintains that we derive from this verse that a Sukkah
must be constructed for the sake of the mitzvah and Bais Hillel maintains that just like the
Heavenly Name attaches itself upon a Chagigah offering, so too the Heavenly Name attaches itself
upon a Sukkah. Bais Hillel derives this from the fact that it is said the festival of Sukkos, for seven
days, unto HaShem. The juxtaposition of the word chag, which alludes to the Chagigah sacrifice,
to the word haSukkos, which means the Sukkah, teaches us that just like the Chagigah is sanctified
to HaShem and one cannot benefit from the Chagigah, so too the Sukkah is sanctified to HaShem
and one cannot derive benefit from the Sukkah.

Bais Hillel maintains that one can build a Sukkah on Chol HaMoed and Bais Shammai maintains
that one cannot build a Sukkah on Chol HaMoed.

Bais Hillel maintains that a Sukkah does not have to be made for the sake of the mitzvah because
the Torah does not state such a requirement. Regarding the making of tzitzis, however, it is said
you shall make for yourself twisted cords, and this teaches us that the tzitzis must be made for the
sake of the mitzvah. The verse regarding making a Sukkah that states the festival of Sukkos you
should make for yourself teaches us that one cannot fulfill his obligation of making a Sukkah with
stolen materials.

The Mishnah states that a Sukkah built under a tree is invalid. If one builds one Sukkah on top of
another Sukkah, the Chachamim maintains that the upper Sukkah is valid and the lower Sukkah is
invalid, whereas Rabbi Yehudah maintains that if there are no tenants in the upper Sukkah, the
lower one is valid.

Rava states that the ruling of the Mishnah that building a Sukkah under a tree is invalid is only
when the shade of the tree is greater than its sunlight. When the sunlight of the tree is greater than
its shade, the Sukkah will be valid when he lowers the tree branches and intermingles them with
the valid s’chach. The invalid s’chach is thus nullified and we deem the Sukkah to be entirely
covered with valid s’chach.

Rabbi Yirmiyah maintains there is a situation regarding a Sukkah on top of another Sukkah when
both are valid. There is a situation where both Sukkahs are invalid. There is a situation where the
lower Sukkah is valid and the upper Sukkah is invalid. There is also a situation where the lower
Sukkah is invalid and the upper Sukkah is valid.

He explains the circumstances: They are both valid when in the lower one the sun is more than the
shade, and in the upper the shade is more than the sun, and the s’chach of the upper one is within
twenty cubits from the ground. They are both invalid in the following case: When in both of them
the shade is more than the sun, and the upper one is more than twenty cubits high (from its own
floor).

Sometimes the lower one is valid and the upper invalid in a circumstance where the lower one has
more shade than sun, and the upper one has more sun than shade, and both are within twenty cubits
(from the ground). And the case where the upper one is valid and the lower is invalid would be

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where in both of them the shade is more than the sun, and the upper one is within twenty cubits
from its own floor).

The Gemora explains the novelty: It is where the lower one is valid and the upper one is invalid.
One might have thought that we should invalidate the lower sukkah as a preventive measure lest
one come to validate a sukkah (where the s’chach of the upper one is higher than twenty amos
from the ground), where the invalid s’chach (of the upper one) joins with the valid s’chach (of the
lower one); therefore, it teaches us (that it is valid, and we do not make such a decree).

Forbidden Walls

The Ran rules that the prohibition to derive pleasure from a Sukkah was only said regarding the
walls which are required for the Sukkah to be valid. The rest of the Sukkah, however, is deemed
to be extra, and one would therefore be permitted to sit in the portion of the Sukkah that is deemed
to be extra. The Ran concludes, however, that if one were to build the Sukkah without interruption,
one would be forbidden to derive pleasure from the entire Sukkah. Tosfos, however, maintains
that one is only rabbinically forbidden to derive benefit from the materials of the Sukkah that are
not required to validate the Sukkah.

The Aruch LaNer questions the rationale of Tosfos, as one is not prohibited from deriving benefit
from the Sukkah prior to the onset of the festival. The prohibition only comes into effect when the
festival commences, and one is then obligated to dwell in the Sukkah. Since the Sukkah has been
built, there would seem to be no difference between the walls that were built initially and materials
of the Sukkah that were built later.

An Old Sukkah Renewed

The Mishnah states that there is a debate whether an old Sukkah, i.e., a Sukkah that was built more
than thirty days before the festival, is valid or not. Regarding mitzvos we find in many instances
that the Torah exhorts us to treat the mitzvos as new and fresh ideas. One should not view mitzvos
as antiquated, and one should certainly not perform the mitzvos by rote.

The Gemara in Nedarim teaches us that the Bais HaMikdash was destroyed, and the Jewish People
were exiled from Eretz Yisroel because of their lack of enthusiasm with regard to mitzvah
performance. When one builds a Sukkah, he should have in mind that by building the Sukkah, he
will have the opportunity to dwell in the Sukkah for seven days as HaShem commanded.

With this thought in mind, he will have built a “new” Sukkah and his mitzvah performance will
be enhanced.

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 A SUKAH UNDER A TREE
Rav Mordechai Kornfeld writes:3

The Mishnah teaches that a Sukah under a tree is invalid. In the Gemara, Rava says that if the
branches over the Sukah let through more sunlight than make shade, then the Sukah is valid.

The Gemara asks why the Sukah is valid in such a case. Since the Sukah is underneath the tree,
the branches of the tree (which are invalid Sechach) join the Sechach of the Sukah and invalidate
it.
What is the Gemara's question? Why should the invalid Sechach (the branches of the tree) combine
with the valid Sechach of the Sukah and invalidate it? Since the Sukah's Sechach is valid and there
is more shade than sunlight, what can the branches of the tree to do invalidate it? If the Gemara
means that the valid Sechach on the Sukah is considered as though it is not there because it is under
the tree, then the Gemara should not say that the branches of the tree are "Mitztaref" (combine)
with the valid Sechach, but rather that the branches of the tree are "Mevatel" (annul) the valid
Sechach.

(a) RASHI (DH v'Ha Ka Mitztaref, and 10a, DH Mahu d'Teima) seems to understand that the
Sechach of the Sukah underneath the tree indeed produces more shade than sunlight and is a valid
Sukah by itself. The Gemara's question is that the Sechach underneath the tree should be
discounted. Why, then, does the Gemara ask that the tree is "Mitztaref" with the valid Sechach,
and not that the tree is "Mevatel" it? Rashi understands that it is obvious that the Sechach beneath
the tree is Batel. Once the Sechach underneath the tree is annulled, the branches of the tree (the
invalid Sechach) now replace the original Sechach. Consequently, the tree combines (Mitztaref)
with the Sechach of the Sukah, so that the majority of shade is produced by the combination of the
invalid Sechach with the valid Sechach.4

This is also the opinion of the RIVA (as cited by the ROSH 1:14 and the TUR OC 626),
the RA'AVAD (2a), the RITVA and others.

(b) TOSFOS (DH Ha) says that in the Mishnah's case, the Sukah's valid Sechach lets in more
sunlight than shade. Only when it is combined with the branches of the tree above does it produce
more shade than sunlight. That is why the Gemara says that the Sukah is not valid when the shade
comes only from a combination of the invalid Sechach with the valid Sechach.
How does the Gemara know that the Mishnah is discussing a case of a Sukah in which the sunlight
is more than the shade? The Gemara reasons that if the shade is more than the sunlight, then it is
obvious that a tree -- the branches of which let through more sunlight than they produce shade --
cannot invalidate the Sukah. Only if the invalid Sechach (branches) on top of the Sukah produces
more shade can it ruin the Sukah (the valid Sechach of which also produces more shade); the
Sukah, in such a case, is like a Sukah underneath another Sukah.

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4
PNEI YEHOSHUA, KORBAN NESANEL #100; see also HAGAHOS MAIMONIYOS, Hilchos Sukah 5:70, for a different
understanding of Rashi.

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(c) The BA'AL HA'ME'OR suggests that the status of the Sukah depends on which Sechach was
placed there first. In a normal case of a Sukah underneath a tree, the tree existed before the Sukah
was built. The tree's branches let through more sunlight than shade. When one adds more Sechach
to make more shade than sunlight, the Sukah is invalid, because part of the shade of the Sechach
is created by the branches of the tree, which was there before the Sukah. The Sukah will remain
invalid regardless of how much valid Sechach is added afterwards, because the tree was part of
the Sechach (which helped produce a majority of shade) when the Sukah was originally built. If,
on the other hand, one built a Sukah which had more shade than sunlight, and only afterwards was
a tree placed there (and the branches let through more sunlight than shade), the tree will not affect
the status of the Sukah, because the Sukah was built first and was valid when it was built.
Presumably, the Mishnah is discussing the normal case, where the tree preceded the Sukah. This
is why the Gemara says that the tree should invalidate the Sukah, even if the Sukah now has more
shade than sunlight.

According to the Ba'al ha'Me'or, what is the Gemara's answer to its question? The Gemara says
that the Sukah underneath the tree is valid "when he lowered the branches down to the Sechach"
("b'she'Chavtan"). How does that help? If the Sechach above the Sukah was invalid, then the Sukah
should remain invalid forever, as the Ba'al ha'Me'or posits.

The Ba'al ha'Me'or suggests a new interpretation for the phrase, "b'she'Chavtan." He explains that
it means that one shook the tree until all of its leaves fell off the branches. The reason why a Sukah
underneath a tree is invalid is because the tree becomes part of the Sukah. When one shakes the
branches, he shows that it was not his intent for the tree to be part of the shade-producing Sechach
of the Sukah, and thus it does not become part of the Sukah. Since there is enough valid Sechach
to create more shade than sunlight, the Sukah is valid.

Steinzaltz (OBM) writes:5

Once a sukkah has been built, it is set aside for the holiday and should not be used for other
purposes.

This is the conclusion of Rav Sheshet in the name of Rabbi Akiva, who points to the passage Hag
ha-Sukkot shivat yamim la-Shem – the holiday of Sukkot is seven days for God (Vayikra 23:34) –
and its interpretation as given by Rabbi Yehuda ben Beteira. He compares the word chag to
the sukkah, teaching that just like the chagigah sacrifice belongs to God, so the sukkah belongs to
God.

There are a variety of opinions about how to define the prohibition in this case. Tosafot suggest
that the pasuk actually confers a level of holiness on the structure of the sukkah, so it is forbidden
to use, just as kodashim – things belonging to the Temple – cannot be used. Others compare it to
the standard rules of muktzah that we are familiar with from the laws of Shabbat. The wood used
for the sukkah has been set aside for a specific mitzvah purpose, so it cannot be used for other
purposes.

5
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Connected to this discussion is whether the prohibition applies to all parts of the sukkah or only to
the main parts of it – that is to say, the minimum needed for the sukkah to be kosher (this is a
disagreement between the R”i and Rabbeinu Tam quoted in Tosafot) – and whether it only applies
when the sukkah is standing or even if it falls down over the course of the holiday (see the
discussion in the Me’iri and the Rosh).

Finally, some distinguish between different component parts of the sukkah. The sechach may be
seen as an issue of kodashim, the walls as a question of muktzah, while use of the decorations
might be perceived as making a mockery of a mitzvah.

As far as the halakha is concerned, according to the Shulchan Arukh (Orach Chaim 638:1) it is
forbidden to take even a chip from the sukkah to use as a toothpick.

Mark Kerzner writes:6

A sukkah that is "old," that is, one that was built more than thirty days before the holiday of Sukkot,
is invalid, since the Torah said, " Sukkot is a festival to God for seven days ." That is, the sukkah
must be built expressly for the festival - so say Beit Shammai. However, Beit Hillel rule that an
old sukkah is completely valid. One should make a little adjustment to a small area of the roof
(s'chach), and that is sufficient. But what does Beit Hillel do with the phrase "festival for seven
days"? - They say that it teaches one not use the materials of the sukkah for any other purpose, for
all seven days of the festival.

If one builds his sukkah under a tree, it is as if he built it inside the house, and it is invalid. In
explaining this, Rava said, "If the tree foliage is thin and lets in more sun that it shades, it is valid."
How does Rava know that, given that the rule did not differentiate between thick and thin foliage!?
He noticed the precise language of the ruling, "as if inside the house." Just as a house usually
shields one from the sun completely, so here we are talking about trees that shield completely, and
not those with sparse foliage.

And yet, the leaves of the tree do give shade, and the leaves of the sukkah directly underneath are
not needed, so let's consider them non-existent. Thus, we have a sukkah whose s'chach (a tree) is
attached to the ground, and that is definitely invalid! Rava will answer, "He bent the tree's branches
down and intertwined them with his s'chach; therefore, they are not above but act in conjunction
with the s'chach, which is then valid.

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Our Daf states that the verse which declares that a sukkah must be “yours” comes to teach that the
mitzvah cannot be fulfilled if one uses a stolen sukkah. Tosafos (‫ )ההוא ה”ד‬presents a powerful
question in understanding our Gemara. Why would it be necessary to have a special verse of “‫לך‬
“by sukkah to invalidate using a stolen sukkah?7

We already have a rule that no mitzvah can be fulfilled if it is done by means of a sin. The rejection
of the mitzvah of a person who steals a sukkah is already under. ‫ מצוה הבאה בעבירה‬of category the
Tosafos answers that the rule of ‫ בעבירה הבאה מצוה‬is only a rabbinic disqualification, and using a
stolen sukkah for the mitzvah would be deemed acceptable from a Torah perspective, if not for the
special verse of “‫”לך‬.

Ritva explains that it is clear from other statements in the Gemara that even Tosafos must agree
that the concept of ‫ מצוה בעבירה הבאה‬is a Torah rule, but that Tosafos holds that this rule only
applies by a ‫קרבן‬, or by lulav. An offering is brought to elicit favor from Hashem (‫לרצות‬, (and a
lulav, likewise, is taken to earn merit from Hashem for favorable winds and weather conditions.
We cannot take stolen objects and expect to ask for Hashem’s assistance.

However, by all other mitzvos, such as sukkah, the rule of ‫ הבאה מצוה בעבירה‬is only rabbinic. Ritva
himself argues with Tosafos, and he holds that the disqualification of ‫ בעבירה הבאה מצוה‬is, indeed,
applicable from a Torah viewpoint by all mitzvos, including sukkah.

The reason the Gemara needs a special verse of “‫“ לך‬to disallow a stolen sukkah is that we would
have mistakenly thought that just as a borrowed sukkah is allowed to be used, so, too, would a
stolen sukkah be allowed. Sukkah is not used to elicit favor from Hashem as much as we find by
a ‫ קרבן‬or by lulav, so we might have thought that a stolen sukkah is allowed.

Therefore, the verse reinforces that the rule of ‫ בעבירה הבאה מצוה‬does apply, and a stolen sukkah is
not valid.

The Shem MiShmuel, zt” l, explains a teaching of the Arizal, that the sukkah is rooted in the
attribute of Binah, what is often translated as supernal understanding. Binah is the spiritual root
from which every Jewish soul descends.

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After being purified on Yom Kippur, each Jewish soul is reconnected to its source by fulfilling the
mitzvah of sukkah. The Shem MiShmuel connects this concept with an axiom from the Zohar
HaKadosh: “He who chases after that which is not his loses that which was destined to be his.”
One who “chases after” the sukkah of another person by stealing it will lose that which he was
destined to receive through fulfilling the mitzvah: reconnection to his spiritual source. Our gedolim
had a deep understanding that all forms of theft literally disconnect the soul from its roots.

The care they took with the property of others was so deeply ingrained; it could be considered like
second nature. When the Alter of Kelm, zt” l, was on his deathbed, someone place a fan nearby to
help ease his discomfort during his last moments.

As his pains became stronger and stronger and it became clear that his end was very close, he
astonished those standing by him with an unexpected action. Using his last bit of energy, he gently
tried to move the fan out of his immediate range so that it would not be damaged during his death
throes. Even during his final moments, the Alter overcame his own pain to secure the property of
another Jew!

If You Build It...

Rabbi Jay Kelman writes:8

While the Jerusalem Talmud rules that one makes a bracha upon construction of a sukkah (Sukkah
1:2), our practice is not to do so, seeing the making of the sukkah as only a hechsher mitzvah, a
necessary (and laudatory) preparatory stage to the mitzvah itself, that of dwelling in a sukkah.

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When all is said and done, it matters little who makes the sukkah [1]. The Gemara (Sukkah 9b)
allows sukkot ganbach and ravkash, acronyms for sukkot made by those not obligated in the
mitzvah, i.e. non-Jews, or sukkot made for secular purposes, i.e. one made by workers in the field
to protect themselves from the sun. The view of Beit Shammai that a sukkah must be
made lishma, with specific intent to fulfill the mitzvah of Sukkah, is rejected.
While one need not build a sukkah [2] with the mitzvah in mind, the sukkah must be built with
intent to provide shade. In Talmudic times, it was common to dry bundles of straw by placing them
on top of one's "sukkah". Such intent Biblically disqualifies their use as s'chach. The Rabbis
forbade the use of such bundles even when placed on top of the sukkah for purposes of shade,
fearful that one may then mistakenly use bundles placed on a sukkah to dry.
How one would go about making such a bundle usable as s'chach is a matter of dispute. "Chag
hasukkot taseh lecha, you shall make for yourself the festival of sukkot" (Devarim 16:9). The
Gemara understands that ta'aseh, you shall make, teaches that one must actively place
the s'chach on the sukkah. If one were to hollow out a haystack, such a sukkah would be invalid,
because the s'chach [3] was never placed on the sukkah but is a result of digging deep enough.
Where one draws the line between what is considered one's action and something that happens
automatically is not always clear. S'chach must grow from the ground yet be detached from that
very ground (perhaps teaching that we are to take that which is natural and transform it as we
imbue it with holiness). The Mishnah rules that if one places branches that are still attached to the
ground on the roof of the sukkah and then detaches them, such would be kosher
for s'chach (Sukkah 11a). However, the Gemara quotes the view of Shmuel that one would also
be required to lift up the branches and place them back on the sukkah. Rav disagrees, maintaining
that the act of cutting the branches is enough.
The Gemara assumes this to be so from Rav's view regarding tzizit. Here, too, the Torah requires
that we make tzizit, veasu lahem tzizit (Bamidbar 15:38). And here, too, there is uncertainty as to
whether one must ensure that the tzizit are kosher at the time they are placed in the garment. The
Gemara records how Amram Chasidah, when making tzizit [4],[5] would put one long string into
the corner of the garment and only then fold it over (twice) and cut it so that he would have a total
of eight strings. Rav ruled that the cutting of the strings was enough to render the tzizit valid.
Presumably Shmuel would disagree.
Left unexplained is why the Torah singles out the two mitzvoth, tzizit and sukkah. While I have
some possible explanations, I would love to hear yours.
[1] The Netziv, in his commentary to the Sheiltot (#169), notes that since the construction of the sukkah is mentioned in the Torah,
it is at least a partial mitzvah (and hence, the discussion if one should make a bracha upon its construction). Other mitzvoth where
the hechsher mitzvah is important enough to be included in the Torah include baking matza, writing tefillin and mezuzot, Shabbat
preparation, and as noted below, making tzizit. For other mitzvoth, including such as shofar and lulav, there is no special mitzvah
to be involved in preparing them for use in the performance of a mitzvah.

[2] As a general rule, only one who is obligated in a mitzvah can be deemed to perform that mitzvah lishma, for the sake of the
mitzvah. A non-Jew exempt from mitzvoth is unable to create halachic intent, regardless of his actual intent. He would, for example,
be forbidden from writing a get, which must be written lishma. The creation of lishma was one of the issues in the (long-settled)
debate regarding machine-made matza, where some argued that such cannot be done by a machine.(See here for a short summary
of this debate)

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[3] The term sukkah refers only to the s'chach, with the Gemara deriving the need for walls not from the term sukkah, but from
extra letters in the word. While there are strict requirements for valid s'chach, "all is valid for the walls" (Sukkah12a).

[4] He would make tzizit for his wife, in accordance with the view of the Sages that tzizit are required to be worn both during the
day and night. As the mitzvah is not dependent on time, women would be required to observe this mitzvah. Rabbi Shimon disagrees,
arguing that the phrase "and you shall see it [the tzizit]" exempts not the blind, but the wearing of tzizit at night. Thus, tzizit is a
positive time-bound mitzvah, and women would be exempt. Jewish law has accepted his minority view as normative.

[5] The reason accepted practice is that women do not wear tzizit--unlike, say, shofar, sukkah, and lulav, which women are
encouraged to observe even though they are exempt--is explained by the Ramah (Orach Chaim, 17:2) as follows. Unlike the
aforementioned mitzvoth, there is no obligation to actually wear tzizit. If a man is wearing a four-cornered garment, he must
attach tzizit, but there is no obligation to wear such a garment. (It is for this reason the custom in many places is that a talit is not
worn until one is married.) With men theoretically exempt, it was felt that for a woman to specifically go out of her way to wear
such a garment gave the appearance of religious showmanship. This same fear, known as mechze keyuhara, led many to insist that
all but serious Torah scholars tuck in their tzizit.

Rabbi Jeremy Rosen writes:9

As we continue our journey through this tractate, the rabbis find more ways to explore what it
means that the sukkah is a temporary structure. This daf begins a sugya (a general legal theme or
topic) that deals ostensibly with whether one can reuse a kosher sukkah from a previous year or a
structure originally built for a different purpose, such as protection from the sun for workers in the
fields or for watchmen keeping guard over crops before they are harvested. The Gemara raises two
broader principles in this discussion: intention and agency.

The mishnah on our daf reads:

Beit Shammai says that an old roof is pasul (unacceptable). Beit Hillel says it is acceptable.
What is an old sukkah? Anything that was built thirty days before the festival begins.

Beit Shammai and Beit Hillel are arguing specifically about the roof of the sukkah because, as has
become clear over the course of this tractate so far, the roof, which is made
of s’chach (branches), is the defining feature of the sukkah. The sukkah is nothing without its
s’chach.

Beit Shammai says any reused roof is unacceptable, though Beit Hillel permits reuse of roofing
material. The medieval commentator Rashi explains that Shammai is specifically talking about a
situation in which the sukkah was not built for the festival. How do we know? Beit Shammai holds
that to fulfill the mitzvah one has to have intention, specifically for the sake of the mitzvah. There
is a tradition that one starts studying the laws of festivals thirty days beforehand (Pesachim 6a). It
is assumed, therefore, that if it is built within this window of study, it was built for Sukkot.

However, according to Hillel, if the sukkah is built specifically for the festival and for no other
reason, then even if it was built much earlier — at the start of the previous year — it is permitted.

Hillel and Shammai famously disagree throughout the Talmud. But though they disagree on this
page as well, they do fundamentally seem to agree that intent is important. It is a longstanding
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argument throughout the Talmud as to whether one must have intent or not to fulfill a mitzvah.
One position is that intention is essential, otherwise the exercise is meaningless and routine. But
not all rabbis agree on this — at least not all the time. The other point of view is that it is the act
that counts because the intention is very difficult to control or verify. As one saying repeated five
times in the Talmud has it: From doing a mitzvah for the wrong reason one may come to do it
for the right reason.

Rabbi Johnny Solomon writes:10

The mishnah on our daf (Sukkah 9a) presents a disagreement regarding the halachic validity of a
‘sukkah yeshana’ (literally, ‘an old sukkah’) - which actually means a sukkah on which s’chach
has sat for over 30 days prior to Sukkot that had not expressly been placed there for the sake of the
upcoming Sukkot festival.

According to Beit Shammai, this ‘old’ s’chach renders the sukkah invalid and must be renewed,
while Beit Hillel permits the use a sukkah with ‘old’ s’chach. Significantly, we follow the position
of Beit Hillel. Still, the Yerushalmi (Sukkah 1:2, 4b) stipulates that some minor act of ‘hitchadshut’
(renewal) must still be performed on a small section of the ‘old’ s’chach.

Admittedly, this requirement is not evident from the conclusion in the Bavli. Consequently, both
the Rambam and the Rif make no reference to performing any renewal act on ‘old’ s’chach.

Other authorities (Rav Yehudai Gaon, Tosfot, the Rosh, the Tur and the Shulchan Aruch) state that
the Yerushalmi’s demand ‘l’chadesh ba davar’ – to renew an element of [the s’chach] – is an
absolute requirement.

While others (Meiri, Ran, Ritva, Magen Avraham and Mishna Berura) rule that while a renewal
act should, lechatchila (ideally) be performed on ‘old’ s’chach to demonstrate the intentionality of
using it for the mitzvah, this is not an absolute requirement. Given this debate debate, where ‘old
s’chach’ is sitting on a sukkah, common practice is to shake or momentarily lift a small section as
an act of renewal. But what is the meaning behind such an act?

We have previously explained that s’chach reminds us of how God protected Bnei Yisrael as they
journeyed through the wilderness, and that its shade represents our faith in God. Yet while the
s’chach can technically fulfill its function even if it has been sitting on a sukkah for more than 30
days, its long-term presence on a sukkah can often mean that we forget its core message – which
this is why we are required (according to some), and strongly encouraged (according to others), to
perform a renewal act on the s’chach to ensure that we haven’t forgotten what it is spiritually
intended to teach us.

Applying this to our lives, just as ‘old’ s’chach ideally needs a renewal act to help us remember its
function and message, so too, people of faith can, at times, forget what it means to have faith,
because anything that is perpetually present in our lives runs the risk that we take it for granted
and forget its core message. But while we shake or momentarily lift up a small part of the s’chach
as an act of renewal, what sort of renewal act should we be performing on our faith?

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Faith, like s’chach, is often fragile; and faith, like s’chach, is always porous, and unfortunately the
mistake we often make is that we view faith as if it is a solid concrete building with a watertight
roof. But faith is not comparable to a ‘solid’ house, and faith is not ‘watertight.’ Instead, faith is
like a sukkah - whose test of strength is, as the Gemara (Sukkah 24b) states, whether it can stay
standing in response to a ‘ruach metzuya’ (literally, ‘a typical wind’, but which also translates as
‘the current spirit of the times’), and whose roof, which represents the protective shade of faith,
can protect its inhabitants - notwithstanding the fact that it is both fragile and porous to the
elements.

Just like the s’chach is shaken or momentarily lifted as an act of renewal, our faith is often renewed
when we have undergone a challenging experience that has ‘shaken’ us, or an experience which
has ‘lifted’ us, because through these events we are reminded that faith is not something that is
fixed but is, instead, something that can be moved.

And this is why, if a sukkah has s’chach which has been there for over 30 days, it should be
symbolically moved, because through doing this we are reminded that true faith must be something
that moves us too.

Rav Moshe Taragin writes:11

One of the more fascinating phenomena in halakha is a situation in which a mitzva and
aveira intersect. One such instance is a situation in which a mitzva can be performed only through
the violation of an aveira. In this case, we apply the rule of "asei docheh lo ta'aseh" (the mitzva
obligation overrides the prohibition), assuming the presence of SEVERAL conditions, including
that no alternative means of performing the mitzva exists. Another instance involves the Rabanan's
ability to suspend a mitzva out of concern that its performance may cause the violation of an
aveira. For example, Chazal decreed that we may not take lulav on Sukkot which coincides with
Shabbat since one might carry the lulav to an authority to confirm its validity. This shiur will
discuss a third case of interaction: mitzva ha-ba'a ba-aveira, a situation in which a mitzva has been
actualized via the performance of an aveira.

Only twice does the gemara mention this term. In Masekhet Sukka (30a), the Gemara
applies mitzva ha-ba'a ba-aveira to both a stolen lulav as well as a stolen korban. Secondly, the
gemara in Masekhet Berakhot (47b) invokes this principle in questioning Rabban Gamliel's having
liberated his slave (normally a forbidden act) in order to include him as part of a minyan for
tefilla. In both cases, the gemara disqualifies a mitzva performed through the violation of an
aveira. In Berakhot, however, the gemara justifies Rabban Gamliel's freeing of his slave, claiming
that with regard to a "mitzva de-rabbim" (a communal mitzva), the disqualification of "mitzva ha-
ba'a ba-aveira" does not apply.

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 There is some debate among the Rishonim as to whether the principle is even accepted as
normative halakha. In fact, the gemara in Sukka (ibid.) cites a debate between Rabbi Yochanan
and Rabbi Yitzchak bar Nachmeini which might surround the very acceptance of this principle.
Even if we do accept the principle (as most Rishonim do), it is unclear whether this disqualification
is de-oraita or de-rabbanan. Tosafot in our daf Sukka (9a), as well as the Ramban in Pesachim,
rule that the principle is only de-rabbanan in nature. Indeed, the gemara (Sukka 30a) cites a pasuk
from Malakhi and another from Yeshayahu as the source of this halakha, but fails to produce a
pasuk from the Torah that introduces the issur. By contrast, the Ritva in Sukka (31a) claims that
the halakha is mi-deoraita, and in fact several gemarot (Sukka 9a, Bava Kama 66b) cite pesukim
which might be construed as sources for mitzva ha-ba'a ba-aveira.

An interesting Yerushalmi (Shabbat 13:3) draws an important distinction which might

possibly reflect the nature of this disqualification. The Yerushalmi invalidates matza gezula
(stolen matza) for use in fulfillment of the mitzva, presumably out of concern for mitzva ha-ba'a
ba-aveira. Yet, the Gemara notes, someone who tears keriya on Shabbat for a deceased relative
has fulfilled the mitzva of keriya despite his having violated Shabbat by rending the garment. The
gemara reconciles these seemingly conflicting halakhot by claiming that whereas matza constitutes
the "cheftza shel mitzva," the actual 'object' of the mitzva, the garment with which the aveira was
performed is not the item or object of the mitzva.

By distinguishing in this manner, the Yerushalmi asserts the nature of the mitzva ha-ba'a
ba-aveira principle: an object of a mitzva cannot also be an object of an aveira. Since matza is the
object of the mitzva, one cannot use matza which underwent a process of an aveira – such as
gezeila (theft).

This definition of the principle would greatly impact the scope of mitzva ha-ba'a ba-
aveira. For example, it might only apply to mitzvot which demand a particular "cheftza shel
mitzva." In the case of the Yerushalmi – the mitzva of tearing keriya for a deceased relative - no
particular cheftza is demanded. The mitzva entails only an ACTION (or "ma'aseh gavra"), which
may be performed on any garment; the garment to be used thus possesses no particular criteria (as
opposed to matza which must be baked in a certain manner with certain ingredients).

Similarly, the rule might apply only if the cheftza of the mitzva is the same object with
which the aveira was performed. The Rambam (Hilkhot Shofar 1:3) rules that one may use a
stolen shofar for the mitzva of shofar blowing on Rosh Hashanah since the object of the mitzva is
the sound produced by the shofar, rather than the shofar itself, and sound cannot technically be
stolen. In this instance, the Rambam invokes his famous position that we define the mitzva of
shofar as hearing a sound rather than blowing an instrument. Consequently, we view the sound,
not the physical shofar, as the essential "cheftza shel mitzva." Since only the shofar itself was
stolen, while the sound it produces was not, the "cheftza shel mitzva" did not undergo a process of
aveira, and the shofar may be blown for the mitzva.

This focus on the "cheftza shel mitzva" might determine which types of aveirot could
undermine a given mitzva through the principle of mitzva ha-ba'a ba-aveira. The gemara mentions
the principle only in conjunction with the sin of theft. In this scenario, the item clearly underwent
a process of aveira. Mitzva ha-ba'a ba-aveira then dictates that an item which 'experienced' an

18
aveira cannot then serve for a mitzva. Would the same apply to other types of aveirot? The
Rambam (in his commentary to the first Mishna in Sukka) claims that a lulav that had been
worshipped as an avoda zara is invalid for use as a mitzva based on the concept of mitzva ha-ba'a
ba-aveira. In this instance, as well, the item can be deemed a "cheftza shel aveira" – an item which
underwent a process of aveira – since it was worshipped.

Conceivably, we might differentiate between a stolen item and one which was
worshipped. In the former instance, since a residual obligation to return the item still applies, the
item still reflects, and is affected by, the original aveira. In the case of avoda zara, however, though
the item was involved in an aveira, the original action has completely terminated, and we should
perhaps no longer deem the item a "cheftza shel aveira." This distinction would be reminiscent of
the Yerushalmi's final example. What would happen if a person were to carry matza on
Shabbat? Could he then eat that matza to perform his mitzva? The Yerushalmi claims that he
may, since the object of the mitzva had not undergone a process of aveira. The aveira of carrying
on Shabbat terminates once the actual relocation concludes. Since no remnant of the aveira exists,
we cannot deem the transported object a "cheftza shel aveira." Indeed, the gemara in Sukka
(31b) disqualifies a lulav of avoda zara based on a different logic, seemingly denying the
application of the mitzva ha-ba'a ba-aveira principle to such a case. The Rambam, however, did
implement the mitzva ha-ba'a ba-aveira concept in the case of lulav of avoda zara.

A slightly different perspective on mitzva ha-ba'a ba-aveira can be gleaned from the
statements of the Ra'avad regarding an etrog of avoda zara. He claims that the other three minim
(lulav, hadassim, aravot) are not disqualified for mitzva use on the basis of mitzva ha-ba'a ba-
aveira if they originated from avoda zara trees. An etrog, however, may not be used if it had been
picked from a tree used for idolatry. The Ra'avad explains that given the strength and appeal of
the etrog's aroma, one will inevitably smell the etrog while performing the mitzva. Since he will
have thus committed a violation DURING the actual performance of the mitzva, mitzva ha-ba'a
ba-aveira will apply. According to the Ra'avad, then, mitzva ha-ba'a ba-aveira establishes a
halakhic deficiency not in the object of the mitzva, but rather in the act of the mitzva. If this act
coincides with the performance of an aveira, the act of the mitzva itself is rendered invalid. In the
instance of gezeila, evidently, by performing the mitzva instead of returning the item to its rightful
owner, the thief extends the act of gezeila and thereby commits an aveira during the act of the
mitzva. By taking an etrog of avoda zara (and smelling the prohibited etrog during the mitzva act),
the individual violates an aveira (of deriving benefit from avoda zara) during the execution of the
mitzva and thereby ruins the mitzva.

Conceivably, this form of mitzva ha-ba'a ba-aveira would have much broader application
than the previous version. Namely, any aveira performed during the execution of any mitzva
would presumably invalidate that mitzva. Thus, for example, the Rambam's halakha validating a
stolen shofar would not apply. Even though the 'object' of the mitzva – the sound - is not stolen,
one cannot deny that by blowing the shofar one extends the original aveira of gezeila. As such,
the performance of the mitzva is tainted and, at least theoretically, mitzva ha-ba'a ba-aveira should
apply. (In truth, the Rambam's position on mitzva ha-ba'a ba-aveira in the case of shofar is far
more complicated, but the details of his stance lie beyond the scope of this shiur).

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 Acquiring Stolen Objects
Rav Michael Siev writes:12

We have learned some of the circumstances in which stolen goods are removed from the
jurisdiction of the previous owner, which allows for the possibility of their acquisition by someone
else. The gemara we will learn today continues that discussion and applies it to the issue
of stolen sukkot.

We begin with the second word on the second line of Succa 31a.

The gemara begins with a baraita that reports a disagreement between R. Eliezer and the Sages
regarding a "stolen sukka" and a sukka constructed in a public domain. Rav Nachman qualifies
the machloket - the Sages do not permit a stolen sukka across the board. In fact, earlier this year
we learned the gemara on 27b that derives from a pasuk that stolen sukkot are invalid! Rather, the
disagreement is about a specific case - where a person came and forced his fellow to abandon

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his sukka, and then wanted to use it for himself. R. Eliezer holds (as the gemara on 27b taught)
that one cannot fulfill the mitzva of sukka in a borrowed sukka. One must own the sukka one uses
for the mitzva. Therefore, no matter how we view the situation, the strongman will not be able to
fulfill his mitzva in this sukka. We mentioned last week that land cannot be
stolen. Halakha simply does not recognize that any significant change has taken place, and the
land is still considered to be the property of the original owner.

Although this rule is accepted le-halakha, it is not unanimous. The gemara here considers both
possible positions on the matter. But, since R. Eliezer invalidates both a stolen sukka and a
borrowed one, it makes no difference. If land cannot be stolen - and since the sukka is connected
to the land, it is considered part of the land - this sukka should be considered "borrowed" from its
original owner, albeit without the owner’s consent. If land is considered "stolen," this has the status
of a "stolen sukka." Either way, the sukka is invalid.

The Sages, Rav Nachman explains, disagree because they assert that one can fulfill one's
obligation with a borrowed sukka. They also affirm that land cannot be stolen. Therefore, this is
considered to be a borrowed sukka, with which one can fulfill the mitzva of sukka. It turns out that
the machloket between R. Eliezer and the Sages, framed in the baraita as a disagreement over
stolen sukkot, actually turns out to be a machloket about borrowed sukkot. It is called
"stolen sukka" in the baraita only because that is how people think of it, due to the fact that the
true owner has been evicted.

Rav Nachman goes on to contrast this case of one who forcibly removes another from
his sukka with a different case - if one were to steal wood and use it as sekhakh for his sukka.
(Sekhakh is the roof of the sukka. It must be made from materials that grow from the ground and
meet certain other criteria.) In this instance, everyone agrees that the original owner "has nothing
but the value of wood." This means that the actual wood itself has been acquired by the thief. He
need not return the wood to its original owner. The victim can demand reimbursement but nothing
more. Because the thief is now the legal owner of the wood, the sukka he built with it is not
considered a stolen sukka or a borrowed sukka. He is the legal owner of this sukka and can
therefore use it to fulfill his mitzva according to all opinions.

At this point, we should take a moment to consider why stolen wood that is used for sekhakh is
acquired by the thief. Let's check Rashi (s.v. aval gazal eitzim ve-sikekh bahem)

Rashi here applies two concepts that we discussed last week and introduces a third that is new to
our shiur. We discussed last week that if a thief effects a physical change in the object that he stole
(shinui ma'aseh), he acquires the object. Although he must still compensate his victim, he need not
return the particular object that he stole. This is apparently because the object he stole no longer
exists - its identity has been changed by the physical alterations it has undergone.

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The same may be true of a change that leads to a new way of referring to the object. Shinui ha-
shem may be required in addition to the physical change. When our thief uses the wood, he stole
to construct a sukka, he thereby changes it from a regular piece of wood to a section of
"sukka," thus changing its name and its physical appearance. This change brings about his
acquisition of the wood.

Tosafot (s.v. aval) object to Rashi's explanation. Although this would thematically connect our
section of gemara with the preceding section, we must consider another piece of information we
discussed last week - that a reversible change is not considered to be a shinui ma'aseh.
Since Rav Nachman brings up a case in which the wood was used for sekhakh, it is quite likely
that the physical change effected in the wood is not permanent. The sekhakh is simply placed on
top of the sukka. It can thus be easily removed, making the rules of shinui not applicable!

Therefore, Tosafot prefer Rashi's other explanation - that the thief need not return the actual wood
because of the institution of takanat ha-shavim. According to Torah law, one who steals must
return what he has stolen. At times, this demand can become a tremendous burden. Consider for
example a case in which one steals some building materials and uses in the construction of
his home. If shinui ma'aseh is not applicable for some reason, the thief would have to accept a
huge financial loss as he took apart his home to return a few nuts and bolts!

The Rabbis noticed that there were robbers who wanted to do teshuva but were not able to bring
themselves to accept the financial hit that returning all the items they stole would entail. Thus, they
decreed that in cases like the one mentioned above, the thief may compensate his victim monetarily
instead of returning the actual object he stole. (There are other cases of takanat ha-shavim, but
this will suffice for now.) Our case falls under that category. Since the wood has been built into
the sukka, the thief is not required to de-construct his whole sukka in order to return what he stole.

Now that we understand the difference between the cases of forcibly removing someone from
his sukka and stealing wood to use as sekhakh, let's get back to the gemara. Having
concluded Rav Nachman's presentation of the machloket in our baraita, the gemara challenges
his opinion based on the wording of the baraita.

"From where" do we know that the machloket between R. Eliezer and the Sages is actually
a machloket about the validity of borrowed sukkot? After all, the baraita presents the
disagreement as pertaining directly to stolen sukkot!

The gemara responds by pointing to the grouping of the two halachot mentioned in the baraita.
In addition to the case of a "stolen sukka," the baraita also reported that R. Eliezer and the Sages
argue about a sukka constructed in the public domain. The gemara argues that the two cases are
grouped together because the crux of the disagreement is identical in both cases.
R. Eliezer disqualifies a sukka in a public domain because the land is not his. Similarly, the case
of the "stolen sukka" is one in which the pesul is due to the fact that the land is not his.

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 The gemara has now addressed the case of forcibly removing someone
from his sukka and the case of stealing wood and using it as sekhakh.
Neither of these cases seems to be one in which the rule that a
stolen sukka is invalid (gemara 27b) applies. Can you think of a case in
which that rule would apply?
Consider the reasons why the cases of our gemara do not fall under that
category - and check Rashi (from where we left off
in s.v. aval gazal eitzim ve-sikekh bahem)!

As mentioned above, the reason that the case of forcibly removing someone from his sukka in
order to use it for oneself is not considered a case of a stolen sukka is because we consider
the sukka, which is connected to the land, to be part of the land.

Additionally, we accept the view that karka eina nigzelet. Thus, the sukka is not considered to be
stolen but rather borrowed. The case of stealing wood and using it as sekhakh is not a case of a
stolen sukka because the wood is subsumed in the greater whole of the sukka. Therefore, even the
wood that was stolen is acquired by the thief, due to takanat ha-shavim.

If we are to find a case of a stolen sukka, it must be one in which the entire sukka is stolen, but the
rule of karka eina nigzelet does not apply. Rashi comes up with such a case - a sukka that is not
really attached to the ground, such as one built on a wagon or a boat. Modern equivalents would
be a sukka built on a car or truck (like Chabad sukka-mobiles).

The rule that "land is not stolen" does not apply because this sukka is not attached to the ground.
And takanat ha-shavim is not applicable because the sukka has not been built into some greater
structure. Such a sukka would be invalid as a "stolen sukka."

Let's go on in the gemara. We are up to the second word of the 15th line of 31a.

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The gemara here relates an incident in which Rav Nachman applied the ruling quoted above in his
name. An old woman came to Rav Nachman and complained that the Exilarch and his entourage
were using a stolen sukka. [In Talmudic times, the Babylonian Jewish community enjoyed a
certain degree of autonomy. The Exilarch was the head of the semi-autonomous Jewish
community.]

Rashi fills in the detail that is implicit in the story - the woman claimed that servants of
the Exilarch had stolen wood from her, which they then used to construct the Exilarch's sukka.
The woman screamed and yelled, but Rav Nachman took no heed of her. Finally, she said: "A
woman whose father had 318 servants is yelling and you pay no heed?"

Apparently, the woman came from a wealthy family and was insulted that Rav Nachman did not
afford her more respect. Alternatively, Rashi explains that the father with 318 servants is a
reference to the Patriarch Avraham (see Bereshit 14:14). According to this explanation, the
woman demanded that Rav Nachman listen to her simply because she was Jewish.

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Finally, Rav Nachman responded, though not directly to the woman. He explained to his students
that even if the woman's claims were substantiated, the sukka would still be acceptable. As we
explained earlier, takanat ha-shavim would apply since the wood had been built into a structure.
While the Exilarch would need to reimburse the woman for her loss, he would not have to return
the actual wood. He is considered the owner of the wood, and the sukka is not a "stolen sukka."

Why Is a Sukkah on Stolen Land Kosher?

Dr. Samuel Lebens writes:13

I once wrote about the Sukkot ritual in which we gather the four species central to the observance
of the holiday in a practice known as "taking the lulav and etrog." The ritual requires that you
actually own the four species before you take them and shake them. According to a moving
Midrash dedicated to this theme, Vayikra Rabbah 30:3, when you own an object (including a
lulav), you invest something of yourself into it. This gives rise to a new understanding of theft:
When you steal an object, you really attack its owner, whose identity is somehow mixed up with
it.

I remember once sitting in a sukkah outside a restaurant. I appreciated that they had built it since
during the festival many people won’t eat outside of one. However, this structure took up a great
chunk of the side-walk. Pedestrians walking past were inconvenienced as they tried to negotiate
their way around it. The owners of the restaurant didn’t own the sidewalk. The local authorities

13
[Link]

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probably hadn’t given them permission to build this structure in this location. I couldn’t help
wondering whether it could be kosher to build a sukkah on land that isn’t yours.

As it turns out, the Shulchan Aruch rules (O. C. 637:3) that "stolen" land doesn’t take on the same
sort of legal stain when you steal it as does a lulav; it doesn’t invalidate a sukkah. In the words of
Rabbi Moshe Isserlis, the great Ashkenazi gloss on the Shulchan Aruch, "One shouldn’t build a
sukkah on somebody else’s land without their permission, and similarly regarding public land.
However, if you transgress, then you still fulfil the commandment [of dwelling in a sukkah]."

Thus, if you don’t rightfully own a lulav and etrog, you can’t perform the ritual, but if you build a
sukkah on land that isn’t yours, against the wishes of the owner, you’ve done something wrong,
but not wrong enough to invalidate your dwelling. So the laws of this festival encode a deep respect
for lulav ownership, and yet in the same breath, they turn a blind eye when you to run roughshod
over people’s land rights. What’s going on?

According to the Talmud (Baba Kamma 99a), if I own a piece of wood, and employ you to fashion
a table out of it, then without spending any money, you become a co-owner in that piece of wood
through your skilled labor. You put some of yourself into it, so to speak. When I pay you, I don’t
pay you for your labor so much as to buy you out of your new share in the piece of wood. Thus,
Jewish law acknowledges the intimate relationship with things we make and own but doesn’t
recognize that intimate relationship extending to our ownership over land.

Fundamentally, the real estate of this world belongs to God, and we are nothing but resident aliens
on the face of His earth. At best, the law gives certain people exclusive rights to use land, but it
never gets mixed up with their identity in quite the same way. Indeed, the Bible demands that every
50 years there be massive redistribution of land titles.

Maimonides (Laws of Shofar 1:3) rules that if you hear a stolen shofar on Rosh Hashanah, you
still fulfil your obligation. His rationale is that the commandment concerns hearing the sound, not
the object, and thus the fact that the object is infected does not affect the sound. The same rationale
applies here – if you stole the walls or the roof, then there will be significant questions about the
validity of your sukkah, but the land is no part of the commandment, because the commandment
of the sukkah is about experiencing landlessness; God's commandment is to leave the comfort of
our homes and re-experience what it means to live without being rooted to a particular plot.

So, there are two answers to this question: one, land can’t be stolen in the same way as a lulav
because land isn’t really owned by any human being; and two, the land on which a sukkah is built
cannot determine whether or not the sukkah is kosher because the laws of a sukkah ignore its
location.

When we start to look at the earth as a place that no human can own, how does it affect our politics
and our relationship to "the promised land?" How does it shape the way we see the hundreds of
thousands of refugees and migrants around the world, without a piece of land upon which to rest
in safety, shut out by border police, fences and the like?

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I don’t suggest that the festival of Sukkot has specific answers to these questions, nor do I mean
to oversimplify the very fraught demographic and security issues that confront us. But we leave
our homes in order to re-enact the experience of being refugees from Egyptian slavery. That
experience is supposed to transform the way we look at the world around us. It is supposed to
transform the ways in which we think that certain things are ours.

A stolen Sukkah applies not only to thievery but also using the halacha as a weapon…. stealing
the civic rights of a family to build a succah despite the halachic objections of neighbors above.

Who writes the law for the Land of Israel? Supreme Court case asks
An Orthodox family excommunicated by a religious court fights back with help from a Reform rabbi,
in a battle over freedom of — or from — religion (2015)

AMANDA BORSCHEL-DAN writes:14

Lawyers Rabbi Uri Regev (far right) and Edna Meyrav with their client from Elad at a
Supreme Court hearing in 2014. (courtesy Hiddush)
The high holidays were approaching three years ago when her upstairs neighbors in the ultra-
Orthodox city of Elad informed “C” that they intended to build an extended balcony before Sukkot,
the festival of tabernacles.

Realizing that this balcony would make her family’s patio does not kosher for use for their own
sukka (which must be constructed under the open sky), C refused to sign the neighbors’ building
permit application.

14
[Link] 2015

27
There were religious and economic considerations at play: In addition to the commandment of
dwelling in a tabernacle, for ultra-Orthodox Jews, a sukka patio/balcony is an extremely desirable
feature in property resale.

The neighbors belittled C, since she and her husband have only daughters who are not obligated
in the commandment of sukka dwelling and decided to proceed without a permit. On the eve of
Rosh Hashana, unauthorized construction began.

Elad, located some 25 kilometers east of Tel Aviv on the seam with the West Bank near the city
of Shoham, is an Orthodox, and increasingly ultra-Orthodox city, that was planned and built in the
late 1990s to provide housing for the ever-growing Haredi population.

Since previous mayor Yitzhak Idan was arrested on corruption charges in 2013, Elad has been led
by Mayor Yisrael Porush from the Ashkenazi United Torah Judaism party.

As is the practice in her ultra-Orthodox community in Elad, C consulted with her rabbi, who
advised her to turn to civil law enforcement to halt the construction. The police were summoned
twice, but the neighbors refused to answer the door. Eventually C hired a lawyer and went to the
civil courts to obtain a work stoppage order.

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A writ of refusal (excommunication) presented to Rabbi Uri Regev’s client in Elad in 2013.
(courtesy)

At the same time, C’s neighbors turned to an Elad religious court, “Ha’yoshar v’hatzedek”
(Honesty and Justice) to arbitrate the disagreement. C was served with a writ from the Elad
rabbinical court telling her that if she does not cancel her injunction from the secular court and
turn the matter over to the religious court, she and her family will be served with a writ of refusal
— excommunication.

C did not bow to this overt intimidation tactic of excommunication and on the evening of Yom
Kippur, a writ of refusal was posted throughout the city. Alongside the copy tacked to her door,
they also posted a “subtle” message in the form of a photocopied article from an ultra-Orthodox
paper that depicted the sudden death of a religious man who had also been excommunicated.

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And so, on Erev Yom Kippur, the holiest day in the Jewish calendar, C and her family had no
synagogue in which to pray. Her daughters were subsequently shunned at a school which would
not register them — until the intervention of the minister of education.

Unable to afford to move and with nowhere to go, C is continuing to fight, and on Thursday saw
her case discussed before the Supreme Court under the helm of a Reform rabbi. After a series of
complaints and civil court hearings, C joined forces with Hiddush, an organization founded to fight
for religious freedom and equality by rabbi and lawyer Uri Regev.

Clash of civilizations

This unlikely collaboration — a Reform rabbi handling the case of an ultra-Orthodox family — is
exactly what Hiddush is about, said Regev in his Jerusalem office last week ahead of a Supreme
Court hearing about the Elad case.

Founded seven years ago, Hiddush, said Regev, brings to light the core clash of religion and state
in Israel, which he calls an ill-defined Jewish democratic state.

“We are 67 years into the life of the state and it is still fighting over the ABCs of what does it
mean to have a Jewish democratic state,” he said, launching into a passionate intro to the battle
for religious pluralism — complete with a booming rote recitation of Israel’s Declaration of
Independence.

Although derived from a “private” rabbinical court, the excommunication notice in the Elad case
was written on official stationery, giving the address of the Elad chief rabbi, a public civil servant,
as headquarters. And although an Ashkenazic court, Ha’yoshar v’hatzedek was seemingly
operating with the blessing of the city’s chief Sephardic rabbi, Mordechai Malka, who is called
the “nasi” or head of the court on its website.

“Can the State of Israel tolerate a reality in which a significant population is strong-arming
people into denying the right to turn to the court of law?” Regev asked, referring to the Elad
case.

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Arbitration in a religious court, he continued, needs assent from both sides to be considered
binding. There is no situation in which a property claim can be adjudicated in a rabbinical court
without both sides’ willingness, and therefore no way in which the court can threaten
excommunication unless given jurisdiction.

Rabbi lawyer Uri Regev (far left) in consultations at the Supreme Court on July 23, 2015.
(courtesy Hiddush)

There are several reasons why this case could be precedent-setting, said Regev in a follow-up
phone call on Sunday. Although there have already been a number of cases in which ultra-
Orthodox Jews have been served a writ of refusal, this is the first time in which an individual’s
right to civil justice was blocked through intimidation and excommunication.

What is more interesting, said Regev, is that this is the first case in which both sides agree that at
its core, the key issue is freedom of religion.

Hiddush’s position is that there should be a clear prohibition for anyone connected to the state
rabbinate to sanction excommunications. This also seems to be the position of the state: In response
to a pre-Supreme Court query, the attorney general said this intimidation through
excommunication “is criminal, illegal, and undermines the rule of law,” said Regev.

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 ‘Beyond the individual case and hardships, what makes this case of symbolic,

precedent value [is that the opposition is] saying we oppose the attorney general’s

instructions’

But the opposition states it should be a rabbinical court’s right to issue these writs of refusals.

“This is the first case in which that clash is the crux of the legal case,” said Regev. “Beyond the
individual case and hardships, what makes this case of symbolic, precedent value [is that the
opposition is] saying we oppose the attorney general’s instructions,” believing that religious law
supersedes, he claimed.

The case is on hold for another four months during which time the attorney general’s office is
tasked with further investigating the Elad chief rabbinate, and subsequently deciding whether to
sanction the city’s top three rabbis, a step which insiders claim may “spark a religious war.”

Alternatively, the Supreme Court may be forced to rule on the case, which, for Hiddush, may well
be the preferred result. From statements Thursday, there is already indication that the Supreme
Court justices view with repugnance the idea of excommunication as a means of forcing a
circumvention of civil courts.

“The writs of refusal are intended to rule out an individual’s right to exercise his civil liberties,”
said Justice Menni Mazuz.

“It is impossible to minimize the horrible effect of a writ of refusal. If a rabbinic court says to
excommunicate an individual who turns to a civil court of law, this is terrible. The writ of refusal
is a terrible thing,” added Justice Uri Shoham.

Who writes the law of the Land of Israel?

The case is one of hundreds in which religious and civil courts conflict on who has the authority
to legislate the law of the Land of Israel: the Shulhan Aruch code of Jewish law or civil legislation.

32
For the past several years, Hiddush has been on the forefront of raising awareness in the Diaspora
for the need for civil marriage in Israel. Regev said he spends about a third of his time in the United
States speaking to Jewish communities and reaching out to its leadership to adopt a resolution in
support of freedom of marriage.

He said he is met with overwhelming support for civil marriage, even from the most staunchly
uncritical pro-Israel organizations. Hiddush developed a mini-website that depicts the human
rights nature of civil marriage with its Freedom of Marriage World Map, which looks at the status
of 160 countries.

Hiddush’s Freedom of Religion Map (screenshot)

Further tactics include frequent polling of Israeli opinion on subjects such as the rabbinate’s
monopoly on life cycle events, and the ultra-Orthodox parties’ demands on entering the coalition.

The many other issues on the docket include burial rights for the 350,000 Israelis who entered the
country from former Soviet Union nations via the Law of Return, but are not considered Jews by
Orthodox Jewish law, and the use of intimidation by kashrut supervisors against hotels and banquet
halls. But there are many many more.

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Regev said he is an optimist by nature and that overall, things have gotten better in terms of
religious freedom in Israel. There is more transparency in the government and the media is a real
partner in raising awareness.

However, since Israelis tend to vote on security, not human rights concerns, the country still needs
a Knesset that is willing to push the religious status quo envelope. Regev feels that with enough
public pressure, even the most cynical politician will create change.

“The people are ready for a change, they just don’t know what to do,” said Regev. But for this
idealistic lonely lawyer of faith, “it starts and ends with people fighting for the Declaration of
Independence.”

34