Discomfort as an Exemption from the Mitzva of Sukka, Part 1 The Source of "Ha-mitzta'er Patur Min Ha-sukka"
It is a well-known principle that one who experiences discomfort is exempt from sitting in the sukka. But defining this is no easy task. What level of discomfort must be reached before one may leave the sukka? Why does the mitzva of sukka contain this special exemption, while all other mitzvot of the Torah do not? If one constructed the sukka in a manner that it affords little protection from the elements, is he then exempt from sitting in it?
These are but a few of the questions of "mitzta'er" (one experiencing discomfort) which commonly arise every year. In this shiur, we will examine the source, nature and practical applications of this exemption.
I. THE SOURCE OF THE EXEMPTION
The mishna (Sukka 28b) states:
"All seven days, one makes his sukka [a] permanent [abode] and his house [a] temporary [one].
If it rains, when may one leave? When the mikpeh (a thick porridge) becomes spoiled."
The gemara elaborates:
"Our rabbis taught in a beraita: 'All seven days, one makes his sukka [a] permanent [abode] and his house [a] temporary [one]. How so? If he has nice vessels or bedding, he brings them into the sukka. He eats, drinks and lingers in the sukka.' What is the source for this? Our Rabbis taught in a beraita: 'Teshvu ke-ein taduru' (i.e., when the Torah states, 'You shall SIT (teshvu) in the sukka' [Vayikra 23], it should be like a regular residence). From here they said, 'All seven days one makes his sukka [a] permanent [abode] ...'"
Although the gemara examines the source of the first halakha of the mishna, it does not even ask what is the source for the second point of the mishna. "Teshvu ke-ein taduru" seems to be a derasha that describes the proper mode of living in the sukka - adding on to the simple obligatioof sitting.
The gemara (26a) states:
"Our Rabbis taught in a beraita: Day travelers are exempt from sukka during the day but are obligated at night ... Travelers during the day and night are completely exempt from sukka ... Guards of fields and orchards are exempt during both day and night. [The gemara asks:] Let them make sukkot there and stay in them!? Abaye says, 'Teshvu ke-ein taduru.' Rava says, 'A hole in the fence calls to the thief.'"
The Tosafot (s.v. Holkhei) explain:
"All this is learnt from the derasha of 'teshvu ke-ein taduru' - a person living in his home does not refrain from travel (and sleeping outdoors). The law of mitzta'er being exempt [from sukka] is similarly derived from 'teshvu ke-ein taduru' - for a person does not take residence in a place where he suffers."
From these beraitot and the Tosafot's explanation, we form the following conclusion: "Teshvu ke-ein taduru" does not only EXPAND but also LIMITS the obligation of sukka. On the one hand, it obligates us to set up a permanent type of atmosphere, and on the other hand, it exempts watchmen, travelers or sufferers from using the sukka in a way that would not be normal in home living.
In addition to the Tosafot, many other Rishonim follow this view of 'Teshvu ke-ein taduru' as the source of the exemption of mitzta'er (see endnote #1).
There is, however, another approach to understanding the source of mitzta'er.
As noted, the gemara on 28b conspicuously does NOT expand the derasha of "teshvu ke-ein taduru" to include the exemption of rain, even though it quotes that derasha as the source for the first law of the mishna (to use the sukka in permanent fashion). According to the Rishonim's understanding, here would be the perfect place to do so.
Furthermore, the variations of mitzta'er appear many times throughout the gemara - but without the derasha of "teshvu." It is mentioned only once by Abaye, and even there, Rava does not seem to concur. (However, most Rishonim explain Rava in a way that he accepts "teshvu" as the source of mitzta'er.)
Add to these points the SIMPLE reading of the following gemara (25b):
" ... Rav Abba bar Zavda said in the name of Rav: 'A mourner is obligated in sukka.' [The gemara asks:] This is obvious! [The answer:] I might have thought since Rav Abba bar Zavda said in the name of Rav that a mitzta'er is exempt from the sukka, [the mourner] should be considered a mitzta'er. That is why Rav came to teach that this law [of mitzta'er being exempt] applies when it is 'tza'ara de-mimeila' (to be explained), but here [the mourner] is causing himself to suffer - and therefore he is required to settle his mind [i.e., overcome his suffering]."
Rashi and most Rishonim explain "tza'ara de-mimeila" to mean "suffering arising from sitting in the sukka." The mourner's suffering is unrelated to the question of whether he is inside or outside the sukka - and so, he has no exemption. But a simpler reading of the gemara would be that "tza'ara de-mimeila" means "suffering from an external source" - it not under his control and so he is exempt. However, if it is an internal source of suffering, he is expected to overcome it and fulfill the mitzva.
The problem is that nowhere among any of the mitzvot of the Torah is discomfort or even suffering a reason to exempt someone from a mitzva. (This is why the Rishonim who base the special exemption of mitzta'er on "ke-ein taduru" need to explain "tza'ara de-mimeila" as stemming from the sukka itself.)
The Maharik (Responsum 178) offers another explanation: mitzta'er is exempt because of his inability to CONCENTRATE on the mitzva. Again, we must ask: this exemption does not apply to any other mitzva! Here, the Taz offers an explanation based on the Bach's (his father-in-law) unique definition of the mitzva of sukka. According to the Bach, in addition to all the physical actions of sleeping, eating, etc., one must also think to himself, "I am doing this to commemorate the fact that Benei Yisrael sat in sukkot as they left Egypt." As the Torah says (Vayikra 23:42): "You shall dwell in sukkot seven days ... that your generations may know that I made Benei Yisrael dwell in sukkot when I brought them out of the land of Egypt."
Thus, according to the Bach, specifically THIS mitzva has a clear requirement of KNOWING - not only as a REASON for the mitzva, but as part of the ACTION of the mitzva.
Until now, we have seen two views regarding the source of the exemption of mitzta'er:
- "Teshvu ke-ein taduru" - the very nature of the mitzva precludes fulfillment in an uncomfortable manner (Rashi, Tosafot, Ritva, etc.);
- a mitzta'er cannot concentrate properly on the commemoration of sukka - which, in this mitzva, is essential (Maharik according to the Taz).
Although the peshat of a few portions of gemara fits nicely with the second approach, the majority of Rishonim adopt the first approach. The two different sources have a clear effect on the very nature of the exemption of mitzta'er. What are the practical differences between them?
II. PRACTICAL DIFFERENCES BETWEEN THE TWO APPROACHES
1) DISCOMFORT UNRELATED TO THE SUKKA
One practical difference was already touched upon - discomfort that is not affected by sitting in the sukka. The Sefer Yere'eim points out that the exemption of mitzta'er applies only if his discomfort will be relieved when he leaves the sukka. This is in keeping with his and other Rishonim's understanding of the law of mitzta'er stemming from "ke-ein taduru." The Maharik, on the other hand, would exempt a any mitzta'er, such as an ill person, even though his discomfort would not be relieved by exiting the sukka.
The Rema (OC 640:4) rules in accordance with the Yere'im (and the Mordechai), while the Taz (ad loc., s.k. 8) seems to accept BOTH exemptions of mitzta'er, and as a result exempts an ill person from the sukka even when his discomfort is unaffected by being in the sukka! The Rema would not exempt such a person.
2) HOW UNCOMFORTABLE IS MITZTA'ER?
Another practical difference between thtwo views of mitzta'er might be the level of discomfort required in order to be exempt.
According to the Maharik, a mitzta'er is exempt if he experiences such a level of discomfort that he is unable to think clearly about the Jews' sojourn in sukkot in the wilderness.
According to most Rishonim, on the other hand, the intensity of discomfort would only need to be enough to be abnormal for home living. As Tosafot said, "A person does not take residence in a place where he suffers."
I would now like to expand on this point. We can relate to two separate questions: A) What TYPE of discomfort is considered mitzta'er? B) Within each accepted type – what INTENSITY of discomfort is considered mitzta'er?
A) TYPES OF MITZTA'ER
The Rid viewed all the various examples of mitzta'er mentioned in the gemara, other than rain, to be exemptions exclusively for people with extraordinarily sensitive constitutions ("istanis"). Rain alone gives discomfort to ALL people; the other incidents are subjective. All normal people must bear and overcome the discomforts of smell, wind, flies, heat, etc. The Emek Halakha (ch. 30) raises the same point.
Most poskim (e.g. Tur and Beit Yosef) follow the view stated by the Hagahot Ha-asheiri that ALL these cases found in the gemara apply to all people. These poskim seem to have accepted a maximal understanding of "ke-ein taduru."
The Rema (OC 640:4), quoting the opinion of the Terumat Ha-deshen, states: "A person who cannot sleep in the sukka because he is discomforted by not being able to straighten out his hands and legs, is NOT considered mitzta'er and must sleep there despite the fact that he needs to fold his hands and legs ... And a person cannot say, 'I am a mitzta'er,' other than in situations that are the norm for people to be mitzta'er." Thus, when a person suffers from cramped living space, or from another discomfort that is unique to him, he must bear the discomfort and stay in the sukka.
This Terumat Ha-deshen, along with the view of the Rid quoted above, are two examples of opinions which hthat under some situations a person would have to fulfill the mitzva even as he suffers in the sukka. This is despite the fact that that they both agree that only normal living is required by "Teshvu ke-ein taduru." Perhaps we can explain that they believe that the law of mitzta'er is not subjective. "Ke-ein taduru" helps define the normal obligation of the mitzva – a sukka should be used the way normal people would use a house.
The wording of the Ramban and later the Shulchan Arukh seems to oppose the Rema. In defining mitzta'er, they state, "Who is a mitzta'er? He who cannot sleep in the sukka due to the wind, flies, fleas and the like." There is no mention of a norm for mitzta'er – just the inability to sleep, due to the various disturbances mentioned in the gemara. The additional "and the like" suggests that ANY other type of sleep disturbance would qualify. They seem to believe that "ke-ein taduru" is a criterion aimed at the individual, describing the required mode of fulfilling the mitzva. Thus, anyone suffering, in ANY way, is not fulfilling "ke-ein taduru" and is therefore exempt.
Until now, we have focused on the question of what TYPE of disturbance can be considered mitzta'er. We have seen several approaches:
1) The Rid limits mitzta'er for normal people to rain alone, and for the "istanis" it is expanded to include the additional list mentioned in the gemara.
2) The Rema includes all disturbances mentioned in the gemara as well as others, as long as they are universally recognized disturbances.
3) The Rambam and Shulchan Arukh hold that any type of disturbance from sleep would be mitzta'er.
B) INTENSITY OF DISCOMFORT
Now let us focus on the INTENSITY of discomfort required for the exemption of mitzta'er. As we saw in the first part of the shiur, according to most Rishonim, "ke-ein taduru" is the source of mitzta'er. Such being the case, the formula of the Yere'im makes logical sense: "If a person is not expert in determining how much rain would ruin porridge ("mikpeh"), he can just ask himself, 'If this amount of rain were entering my house, would I leave it?'"
This approach seems to contain an inherent difficulty: when choosing a home, how many people would choose to live in a house that only matched the amenities of a sukka? In other words, no common sukka is ever truly "ke-ein taduru." Surely, when God set down the mitzva of sukka with the provision of "ke-ein taduru," He still expected a CERTAIN amount of sacrifice of home living comfort.
The Tur (OC 625) relates that God specifically placed the mitzva of sukka in the month of Tishrei, the beginning of the winter, to show that we do not sit in the sukka for comfort but rather in order to fulfill the command of God. Surely, a certain level of discomfort is to be expected.
I believe that that the Rambam (and Shulchan Arukh) head off this problem in their clearly stated criteria of: a) "not being able to sleep;" and b) "until the rain ruins the porridge." According to them, mitzta'er is exempt from using the sukka when his discomfort leads to an INABILITY to perform the basic living functions of sleeping and eating in the sukka. As long as one is still able to sleep and eat, albeit uncomfortable or below home standard, he is still obligated.
In support of this understanding, let us examine the opinion of the Gra. When the Rema mentions that only a normal mitzta'er is exempt, the Gra cites as his source the mishna, "If it rains, when can one leave the sukka? When the porridge spoils." From this, the Gra points out, we see that all discomfort from the rain LESS THAN this intensity does not qualify as mitzta'er. This, too, would seem to oppose the view of the Yere'im – that ANY deviation from home living is mitzta'er.
To conclude, let us note that the more lax opinions in defining both the boundaries as well as the intensity of mitzta'er are actually strict regarding the building requirements of a sukka. If you accept the Rambam's (and Shulchan Arukh's) opinion that ANY type of subjective disturbance is mitzta'er, or that of the Yere'im that any intensity of disturbance which would cause you to leave your house exempts you from sukka, then you are required to build your sukka in a way that will avoid any such disturbance. This would practically translate into better sukka insulation (or even heating), security, cleanliness and bug repellent, to name a few. Since people today are accustomed to higher living standards, the level of mitzta'er changes accordingly.
The Shulchan Arukh (640:4), quoting the Rosh, addresses this specific point by stating: "Mitzta'er is exempt from the sukka ... [all this is] only if the discomfort came by chance after he made the sukka there. But initially, he should not make his sukka in a place of bad smells or wind and then say, 'I am mitzta'er.'"
The Rema (ad loc.) goes one step further. Quoting the Mordechai (the original source is the Yere'im, ch. 421, p. 239b), he says:
"If he initially constructed [it] in a place that makes him a mitzta'er regarding eating or drinking or sleeping; or if he cannot perform one of these functions due to fear of thieves when he is in the sukka; then he does not fulfill [his obligation] in that sukka at all - even the functions that he is not mitzta'er for - since this is not 'ke-ein de'era' (similar to normal living), because he cannot perform all his [normal] needs."
This pesak is supported by many poskim (Magen Avraham; Levush; Mishna Berura [see Sha'ar Ha-tziun, s.k. 25]) and raises MANY practical questions. We will relate to these questions in Part Two of this shiur, when we investigate the nature of the exemption of mitzta'er.
(1) See Tosafot s.v. Pirtza; and 28b s.v. Teshvu; Ritva 25a s.v. Cholin, Rashi and Ran ad loc.; Responsa of the Rashba IV:78; Ramban, Vayikra 23:42; Yere'im chapter 421, p. 239b, to name a few. This author was not able to find a single Rishon who disagreed.