Those who are Exempt from Mitzvat Sukka |1|

Introduction

 

Last year, we began our study of the laws of Chag Ha-Sukkot. The halakhot pertaining to Sukkot are numerous, relating to the sukka itself, the mitzva of dwelling in the sukka, the laws of the four species (lulav, etrog, hadasim, and aravot), and the final days of the festival, Hoshana Rabba, Shemini Atzeret, and Simchat Torah. Last year, we discussed the halakhot of building a sukka, as well as the obligation to dwell in the sukka. This year, we will conclude our study of the halakhot of dwelling in the sukka, and, God willing, we will study the laws of the four species and the final days of the Festival.

 

We previously learned about the obligation to eat in the sukka on the first night of the Festival, and we examined the mitzva of dwelling in the sukka during the rest of the chag. We noted that although ideally one should transform one’s sukka into one’s home, spending time and performing various activities in the sukka, the technical definition of the obligation is that one is not permitted to eat more than a ke-beitza of grain products – an “akhilat keva” – outside of the sukka. In addition, one may not sleep, even for a short time (a sheinat arai), outside of the sukka.

 

This week, we will begin our study of the situations in which one is exempt from the mitzva of sukka. Some of these exemptions are particular to the laws of dwelling in the sukka and emerge from the principle of “teshvu ke-ein taduru” – one must dwell in the sukka in a manner similar to which one dwell in his home. Another type of exemption may be described as external, or even universal: “Ha-osek be-mitzva patur min ha-mitzva” – one who is engaged in the performance of one mitzva is exempt from another.

 

Teshvu Ke-ein Taduru – The Exemption of Travelers

 

The Talmud (Sukka 26a) teaches that holkhei derakhim, travelers, are exempt from the mitzva of sukka:

 

Our Rabbis taught: Day travelers are free from the obligation of sukka by day, but are bound to it at night. Night travelers are free from the obligation of sukka at night, but are bound to it by day. Travelers by day and night are free from the obligation both day and night.

 

Rashi (s.v. holkhei) explains:

 

It says, “You shall dwell in sukkot” – like the dwelling in one’s house (teshvu ke-ein taduru). Just as during the year one does not refrain from traveling for business purposes, also during the days of the Festival which are not Yom Tov, the Torah did not require that one refrain [from traveling].

 

According to Rashi, this exemption emerges from the basic obligation of sukka. One is to live in one’s sukka as one would live in his own home. Normally, one might leave his home in order to travel, and one may similarly leave his home during Sukkot, even if he will not be able to sit in a sukka during his travels. Tosafot (s.v. holkhei) also identify “teshvu ke-ein taduru” as the source of this exemption.

 

            The Rashba (Responsa 7:296) questions how one can be exempt from the Biblical obligation of sukka in order engage in noncompulsory activities, such as traveling. Like Rashi and Tosafot, he explains that “the Torah established [the obligation] in a place in which a person resides, as it says, ‘you shall dwell’ – in the manner in which you dwell - and on the road, there is no dwelling.”

 

Interestingly, the Ritva (Sukka 28b), citing the Ramban (see also Ramban, Vayikra 23:42), offers a slightly different approach:

 

The question may be raised: Why is the "home-born" (“ezrach” – Vayikra 23:42) mentioned? I heard in the name of our great teacher, the Ramban, of blessed memory, that it comes to teach that the obligation of sukka applies only to one who is “like a green tree (ezrach ra’anan) in its native soil” (Tehillim 37:35), to the exclusion of wayfarers (holkhei derakhim), produce watchmen (shomrim), and one who suffers discomfort (mitzta’er), and the like. And that which we say in many places, "'You shall dwell' – similar to [normal] residence" – is derived from here. For this verse clarifies that when it says, "you shall dwell," it is not any dwelling, but dwelling similar to normal residence, as in, "And Yaakov dwelt [vayeshev] in the land in which his father had sojourned" (Bereishit 37:1) and other verses.

 

The Ramban maintains that the principle of teshvu ke-ein taduru is derived from the verse, “All that are home-born (ezrach) in Israel shall dwell in booths;” a person need only dwell in the sukka when he is like an “ezrach ra’anan” – a green tree planted in its home. The Ramban attributes the exemptions of holkhei derakhim, shomrim, and mitzta'er, to this verse. We will return to this notion next week when we discuss the exemption of “mitzta’er.”

 

            We discussed previously (http://vbm-torah.org/archive/moadim70/19-70moed.htm) the difference between the obligation to eat in the sukka on the first night of the Festival and the obligation to “dwell in the sukka” during the rest of the week. We suggested different understandings of the obligation, which is derived from the gezeira shava, a textual comparison between the first night of Pesach (the fifteenth of Nissan), upon which one is obligated to eat matza, and the first night of Sukkot (the fifteenth of Tishrei). This gezeira shava may imply that one must fulfill the mitzva of “dwelling in the sukka” on the first night or may simply teach that one must “eat” in the sukka, just as one must “eat” matza, on the first night of the festival.

 

Do the exemptions derived from teshvu ke-ein taduru apply on the first night as well? Some Rishonim (see Meiri, Sukka 26b, who cites the Chakhmei Lunel, the scholars of Lunel; see also Tosafot, Berakhot 49b, s.v. iy)  insist that the principle of teshvu ke-ein taduru does not apply on the first night, as the gemara (Sukka 27b) strongly implies. Other Rishonim (Rashba, Responsa 4:78; Ritva, Sukka 26a, s.v. ha de-amrinan; see also Ran 12b, s.v. matni) differ. This question may depend on whether the requirement on the first night is essentially an obligation of “eating,” in which case the exemptions of tesvhu ke-ein taduru would not apply, or whether it is an obligation of “dwelling in the sukka,” in which case they may or may not apply.

 

The Acharonim also disagree as to whether the exemption for travelers applies to one traveling on the first night of Sukkot (see Magen Avraham 640:15; Eliyyah Rabba 640:23), or whether even a traveler would be required to find a sukka on the first night of the Festival (Peri Megadim, Eshel Avraham 640:15), just as in practice we eat in the sukka on the first night even if it rains.

 

Vacations and Tiyulim During Sukkot

 

May one travel for pleasure during Sukkot and eat outside of the sukka, relying upon the exemption of holkhei derakhim? This question is especially relevant for those who may only take a vacation from work during Chol Ha-mo’ed, or for youth groups, especially in Israel, who wish to offer overnight tiyulim during Sukkot.

 

Some question whether the gemara only permits one to travel, thereby exempting oneself from the mitzva of sukka, for great necessity. R. Moshe Feinstein (Iggerot Moshe, Orach Chaim 3:93), for example, based upon the Rashi cited above, insists that the entire exemption of holkhei derakhim only applies to those who must travel for business reasons (“sechora”), and not to those who travel for pleasure. (Interestingly, in a later responsum, written in 1980 to R. Elyakim Ellinson, R. Feinstein defends his position, but suggests that one who visits the Land of Israel during Sukkot, a trip that generally entails great effort and expense, and who wishes to see as much of Israel as possible, may rely upon the exemption of holkhei derakhim, as his trip is not for “enjoyment,” but rather a necessity.) R. Ovadia Yosef (Chazon Ovadia, Sukkot, pg. 166-168) also argues that one may only exempt oneself from the mitzva of sukka for a pressing need, such as traveling for parnasa (earning a living).

 

Many Acharonim disagree (see, for example, R. Binyamin Zilber in his Responsa Az Nidbaru 11:34), arguing that other Rishonim do not indicate that holkhei derakhim refers only to one who must travel for business reasons. Some suggest that while “tiyulim” outside of Israel may have no inherent value, touring the Land of Israel may constitute a mitzva of sorts, and therefore may justify employing the exemption of holkhei derakhim.

 

Others object to intentionally traveling during the Festival and deliberately avoiding fulfilling the mitzva of sukka. This concern may, in fact, be universal, as the gemara (Shabbat 19b) rules that one should not embark on a ship within three days of Shabbat except for the sake of a mitzva. Some Rishonim (see, for example, Ba’al Ha-Ma’or 7a) explain that the gemara prohibits entering a potentially life threatening situation in close proximity to Shabbat, as one will inevitably need to violate the Sabbath. Other Rishonim (Rambam, Hilkhot Shabbat 30:13; Rif 7b; Rosh 1:35) express concern that this journey will most likely detract from one’s enjoyment of Shabbat (oneg Shabbat). This general prohibition might concern us here as well.

 

Regarding Sukkot more specifically, the Or Zaru'a (Hilkhot Sukka 299) records:

 

There are some who, after they let blood during the holiday, eat outside the sukka. They say they are no different than those who feel pain in their eyes or have headaches [and, as sick people, are exempt from eating in the sukka]. They are mistaken, for one who lets blood is not sick; on the contrary, he is happy and eats and drinks much. Furthermore, he did not have to choose to let blood during the holiday. Even with regard to a mourner, whose suffering is due to causes outside his control, we say that he must calm himself and fulfill the mitzva [of sukka]. Certainly, the same should apply to these [who let blood], for they should not have chosen to let during the holiday.

 

The Or Zaru’a objects to purposely blood-letting during the Festival, a practice which may be equated, in this case, to an elective medical procedure, and then claiming an exemption from sukka due to discomfort (mitzta'er). Based upon this view, cited by the Rema (640:3), the Magen Avraham (640:4) writes:

 

According to this reason, one who drinks a laxative is still obligated in sukka, even though he is in great pain, for he should have done this before the holiday or afterwards. Therefore, he should not time this for the holiday.

 

The Magen Avraham objects to one who deliberately schedules an elective procedure during Sukkot and then claims an exemption from the sukka due to discomfort. The Acharonim explain that in this case, he is blood-letting for “pleasure,” and not for an urgent medical need. Some suggest that just as one should not deliberately create a medical reason that will exempt one from sukka, certainly one should not intentionally plan a trip during Sukkot, which will inevitably uproot one from the mitzva of sukka.

 

We should note, however, that there are clearly instances in which one may avoid the obligation of sukka. For example, the gemara (26a) relates how R. Chisda and Rabba bar R. Huna would travel to their teacher on the Festival, undermining their obligation to sit in the sukka, in order to perform the mitzva of visiting one’s teacher on the Festival.

 

            Some authorities insist that we must investigate the extent to which travelers are really exempt. Is the traveler’s exemption absolute, or are they required to expend time and energy finding a sukka? Does the traveler’s exemption assume that it is simply not possible to find a sukka and fulfill the mitzva?

 

The gemara cited above, for example, teaches that day travelers are obligated in sukka at night. Tosafot (Sukka 26a, s.v. ve-chayyavin) explain that one is only obligated in sukka at night if he sleeps in a town, presumably where there is a sukka. However, if there is no available sukka at night, his status as a “traveler” exempts him at night as well. The Meiri (Sukka 26a, s.v. holkhei) cites an opinion that requires one to construct a sukka where one sleeps, but he rejects this understanding.

 

The debate regarding whether the traveler is completely exempt only while actively traveling or even at night as well is also found among the Acharonim. The Rema (640:8) writes that the traveler is obligated at night only if he can find a sukka; if he is unable to find a sukka, he may continue traveling and eat and sleep outside of a sukka by day and night. The Magen Avraham (640:15), however, understands Tosafot differently. He argues that one must erect a sukka where he spends the night, and insists that even Tosafot maintain that when one reaches a town, he must erect a sukka. Most Acharonim (see Levush 640:8; Mishna Berura 640:41-42, see also Bi’ur Halakha; Arukh Ha-Shulkhan 640:17) rule that one is not obligated to erect a sukka at night, if he does not find one where he sleeps.

 

            Despite ruling that a traveler does not need to erect a sukka where he sleeps, the Rema also cites the Orchot Chaim (Hilkhot Sukka 33; see also Sefer Ha-Mikhtam, Sukka 26a), who writes:

 

Since day travelers are obligated in sukka at night, we suggest that those who travel to villages collecting debts on Chol Ha-Mo'ed must return home at night to eat in the sukka if the village does not have one. Even though one can maintain otherwise, one who follows this stringency will be blessed.

 

The Rema (640:8) writes that preferably one should be stringent and return home in order to eat in the sukka.

 

Furthermore, although technically a traveler is exempt from eating and sleeping in the sukka even at night, many Acharonim (Levush 640:8; see also Chayei Adam 147:22; Mishna Berura 640:40) write that while traveling, although one does not need to delay eating in order to find a sukka, ideally one who is able to should eat in a sukka.

 

            What clearly emerges is a discomfort with the blanket exemption of holkhei derakhim, and a recommendation to seek out a sukka, even when legitimately exempt.

 

            In conclusion, regarding vacations and tiyulim, one may find justification for the practice of those who travel during Sukkot and invoke the exemption of holkhei derakhim, especially those engaged in educational activities, as Chol Ha-Mo’ed may indeed be the only opportunity to organize such a tiyul. However, it seems that given the ease at which one may find a sukka in our day and age, one should be strict, and plan to eat those meals that require a sukka in a sukka.

 

            R. Aharon Lichtenstein raises broader concerns. He argues that “one should be firmly and sharply opposed – both educationally and from the perspective of Jewish beliefs and values – to tiyulim or activities organized in a way that involves not observing the mitzva of sukka” (https://etzion.org.il/en/halakha/orach-chaim/holidays/travelling-and-mitzva-sukka). He cites the Rambam (Hilkhot Tzitzit 3:11), who writes the following regarding tzitzit, which technically one must only attach while wearing a four-cornered garment:

 

Even though a person is not obligated to purchase a tallit and wrap himself in it so that he must attach tzitzit to it, it is not proper for a person to release himself from this commandment. Instead, he should always try to be wrapped in a garment that requires tzitzit so that he will fulfill this mitzva.

 

So too, argues R. Lichtenstein, from an educational, as well as a broader spiritual perspective, it is improper to intentionally remove oneself from the obligation of sukka.

 

Shomrim – The Exemption of Guards and Watchmen from Mitzvat Sukka

 

            The Talmud (Sukka 26a) cites a Tosefta (Sukka 2:3), which teaches:

 

Our Rabbis taught: The day watchmen of a town are free from the obligation of sukka by day and bound to it at night; the night watchmen are free by night and bound by day; the day and night watchmen are free both by day and at night.

Keepers of gardens and orchards are free both by day and by night.

 

The gemara exempts those who guard the city, as well as to those who watch gardens and orchards.

 

The Ritva (26a, s.v. tannu rabbanan) explains that the watchmen are exempt due to the principle of “teshvu ke-ein taduru”. Interestingly, the Magen Avraham (640:16) writes that these guards are only exempt because they are patrolling the city, where there are no sukkot. He notes that the gemara, cited below, questions why those protecting gardens and orchards cannot build a sukka at the place from which they guard. The gemara did not ask this question regarding city watchmen, because they are constantly patrolling the city. Those guards who protect the city from a specific place, however, would be obligated to erect a sukka. Similarly, the Acharonim note that one who is at his place of employment all day, even though he would eat his meals there during the year, must either build a sukka or find a sukka to eat in (Mishna Berura 640:46).

 

Interestingly, the Yerushalmi (Sukka 2:5) explains that the Tosefta refers to guards who protect the city from enemies (shomrei gaysot). The Korban Ha-Eda implies that in such a case, the exemption may be due to the principle of “osek be-mitzva patur min ha-mitzva” – one who in engaged in the fulfillment of a mitzva is exempt from fulfilling another mitzva.

 

            Concerning those who protect gardens and orchards, who generally sit in one place and watch for thieves, the gemara asks why they cannot make a sukka next to the garden or orchard:

 

But why should they not make a sukka there and sit in it? Abayye said: “And you shall dwell” [implies] just as you normally dwell. Rava said: The breach invites the thief. What practical difference is there between them? The practical difference [emerges] where one is guarding a pile of fruit.

 

The gemara cites a debate between Abayye and Rava. Abayye maintains that the garden and orchard guards are exempt, due to the principle of “teshvu ke-ein taduru.” Why should the principle of “teshvu ke-ein taduru” apply to this case?

 

Rashi (Sukka 26a, s.v. ke-ein; see also Ran 12a and Meiri 26a) explains that “the Torah requires a person to leave his house and dwell in a sukka with his bed and utensils and linens, and this person cannot bring them there because of the exertion [involved].” In other words, “teshvu ke-ein taduru” demands that a person dwell in the sukka in the same conditions as he lives in his house. The Ritva (Sukka 26a, s.v. shomrei) disagrees and explains that “since one does not ordinarily establish a permanent residence there, he is not obligated to build a sukka there.” Apparently, one is only obligated to build a sukka in a place where people would normally build their homes. Regardless, Abayye’s expectations are quite ambitious, as he demands that the sukka be modeled after one’s house, either in content or location.

 

Rava disagrees and offers a different reason – “the breach invites the thief.” The Rishonim (see, for example, Tosafot 26a, s.v. pirtza) insist that Rava does not reject “teshvu ke-ein taduru” as the reason for this exemption, but rather believes that it may not be applicable here. Why does Rava reject the simple application of “teshvu ke-ein taduru,” as suggested by Abayye?

 

The Ran (Ran 12a, who explains the sugya like Rashi), explains that “we do not exempt him for this reason, for it is similar to [normal] residence, for all year long he lives in those structures in the gardens and with the same utensils.” Rava believes that one does not need to construct one’s sukka with the potential for the same conditions as his home. Alternatively, the Ritva explains that "Rava maintains that we do not take the derasha teshvu ke-ein taduru to the extent that one should only construct his sukka in a place where he is accustomed to establish his permanent house.” According to the Ritva, we are not concerned with the content or location of the sukka, but merely with one’s dwelling experience within it.

 

How are we to understand Rava’s alternate reason, “the breach invites the thief”? Indeed, the Ritva comments:

 

The matter is astonishing. Does Rava not have the law that "dwelling [in a sukka] must be similar to [normal] residence"… And furthermore, how does he exempt a person from sukka because of a concern about monetary loss? Is a person ever exempted from a mitzva for that reason?

 

He suggests that “when there is monetary loss and he suffers discomfort and a loss, in such a case we exempt him on account of teshvu ke-ein taduru.” Rashi might accept this explanation as well.

 

            The gemara concludes that “the practical difference [emerges] where one is guarding a pile of fruit.” In this case, in which the guarded items are right in front of the watchmen, one is not concerned that by sitting in the sukka the guard “invites the thief.” Therefore, according to Rava, these guards would be obligated to dwell in a sukka. The halakha is in accordance with Rava.

 

            Next week, we will learn about the exemption of the sick and those who experience discomfort, in the sukka. We will also discuss what one should do when it rains into one’s sukka.