Circumvention in the Laws of Sukkah and the Sabbath/Festival

Opening post by the rabbi

Circumvention in the Laws of Sukkah and the Sabbath/Festival

Posted on 17/10/2008

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Circumvention in the Laws of Sukkah and the Sabbath/Festival

On the most recent festival day, a Jew approached me and told me that it had become clear to him that his sukkah was invalid. The case raises several interesting points in the laws of sukkah and more generally, and so I said that I would ‘climb the palm and grasp its boughs,’ and we would take pleasure in the laws of the festival on the festival itself. Let us sketch a simpler case so that the discussion will be clearer.

He built the sukkah in such a way that it had three walls, but the third was about a meter away from the covering (that is, more than three handbreadths and less than four cubits). He thought that the rule of a bent wall applies even across open airspace, but that is of course a mistake. His son-in-law suggested seating a person at the edge of the covering as the third wall, following the well-known advice of the Shulchan Arukh in section 630.

[Just to avoid error, I will say that two conditions are required for this: that the one sitting there not know what he is being used for (as stated there explicitly; see the Bi’ur Halakhah there for explanations), and in my opinion it is also required that he not act on the instruction of the person giving the directive (for example, his child, who acts on his instruction). For if he acts on his instruction, that is like placing an animal there, which is considered as though he built it with his own hands; see the Vilna Gaon and the other commentaries on section 362, par. 5. In the case of a minor, as with an animal, this is not a partition made inadvertently, because it is made by the adult and not by the minor or the animal sitting there. Therefore the partition should not be made by means of his child, for a minor acts on his father’s instruction, and perhaps every minor acts on an adult’s instruction (as explained in the laws of extinguishing a fire, section 334).

There is also room to discuss whether the person sitting there may himself eat in the sukkah. In my view, it stands to reason that this is forbidden, since he himself is the wall, and therefore he is not sitting in the sukkah. This is true both physically, for he is sitting under himself and not under the covering, and functionally, since he serves as a wall and not as a person sitting in the sukkah.]

He was now faced with the problem of what to do next. I thought of suggesting to him an expedient that I have not found in the halakhic authorities, but that seems correct to me: place a person there as a wall (under the above conditions), and afterward, while he is still there, add covering over the air gap until the third wall. Then the person sitting there can go out, and he will remain with a valid sukkah.

Every stage in this process is permitted from the standpoint of the festival laws, for seating the person there initially is certainly permitted by Talmudic law. Once a person is sitting there, adding the covering does not constitute a permit-conferring partition or permit-conferring covering, since the sukkah is valid even beforehand, and therefore it is not forbidden on that account. On the other hand, absent that concern, it is simply akin to adding to a temporary tent, and that too is permitted (certainly for the sake of a commandment, as in the case involving a corpse; see section 311, par. 6).

Still, I wondered whether this might not count as permit-conferring covering with respect to the section beyond the original covering. True, it does not validate the entire sukkah, but that outer section was invalid before the covering was added. Therefore it is preferable to add invalid covering there, for in that case the invalid covering combines with the distant wall to create a bent wall. That wall validates only the part that was already valid beforehand, and therefore it is not a permit-conferring partition. More than that, it is preferable to use invalid covering for two additional reasons: 1. In that case this is not temporary covering but a partition, and in the case of a partition that does not confer permission there is no prohibition at the outset at all, and one need not search for leniencies. In the case of covering, it constitutes a temporary tent, and therefore we require the permission to add to a temporary tent. 2. Valid covering, by definition, cannot be a utensil, and therefore it serves no other purpose and is consequently set aside. True, there is a workaround by moving it indirectly or in an unusual manner, but it is difficult to lay covering that way, and in addition it is not the preferred practice. By contrast, for invalid covering one can take something that serves some purpose (such as a blanket or sheet), and it is not set aside.

The issue of circumvention still remains. But here we find two precedents in the Shulchan Arukh, Laws of the Sabbath. In section 311, par. 6, a case is brought of circumvention with respect to building a temporary tent for a corpse (admittedly, the halakhic authorities say that this is only because of necessity and is not permitted ab initio, but here too there is a commandment-related need. It remains to be clarified whether the sake of a commandment also counts as ‘need.’ In the case of a corpse, it seems obvious that this is not considered merely the sake of a commandment):

If a corpse is lying in the sun and they have no place to move it, or they did not wish to move it from its place, <ו> two people come and sit on its two sides. If it is hot for them below, (19) 17 this one brings his bed and sits on it, and that one brings his bed and sits on it. If it is hot for them above, this one brings a mat and spreads it over himself, and that one brings a mat and spreads it over himself. This one (20) 18 stands his bed upright, slips out, and goes away, and that one stands his bed upright, slips out, and goes away; the result is that a partition has been made on its own, for the mat of this one and the mat of that one have their upper edges adjacent to one another, and their two ends are on the ground on the two sides of the corpse.

And in section 316, par. 6, we find a circumvention that is even more similar, regarding trapping:

If one person sat at the entrance and blocked it, (24) the second may sit at his side; and even if the first stood up * (25) 11 and went away, the second is exempt and it is permitted; whereas the first, (26), is liable.

Here it is exactly like our case, both because it concerns circumvention with respect to a Torah prohibition and because the configuration is virtually identical. Even the underlying idea is the same, since although this concerns the labor of trapping and not the labor of building, the question is whether there is here an enclosure (or, in the case of building, a wall) that shuts the deer in or not.

In conclusion, I ruled that he may do so. Does anyone know of a source that presents this expedient? This is a very common configuration, and the expedient could fit a great many cases of a sukkah that becomes invalid on the festival or on the Sabbath, when the person is in a genuine predicament.

And now, my master Mefibosheth, did I rule well, and did I render a correct declaration of purity?…

Source (forum ‘Stop Here, We Think’): http://www.bhol.co.il/forums/topic.asp?topic_id=2500204