A Stolen Sukka (Part II)

  • Rav Shmuel Shimoni

 

            In the previous shiur we clarified the positions of Rabbi Eliezer and the Sages regarding a stolen sukka:

 

It was taught: Rabbi Eliezer says: Just as a person does not fulfill his obligation on the first day of the festival [of Sukkot] with another person's lulav, as it is written: "And you shall take for yourselves on the first day the fruit of the hadar tree, branches of palm trees" (Vayikra 23:40)belonging to you, so too a person does not fulfill his obligation in another person's sukka, as it is written: "The feast of booths shall you observe for yourself seven days" (Devarim 16:13) – belonging to you. But the Sages say: Even though they said that a person does not fulfill his obligation on the first day of the festival with another person's lulav, he does fulfill his obligation with another person's sukka, as it is written: "All those that are home born shall dwell in booths" (Vayikra 23:42) – this teaches that all of Israel are fit to dwell in one sukka. - And the Sages, how do they interpret the word lekha, "for yourself"? - They need it to exclude a stolen [sukka], but as for a borrowed [sukka], it is written "all those that are home born."

 

            Today we shall deal with a question relating to the position of the Sages, the answers to which teach us important principles in various areas. Rabbi Eliezer models his position regarding sukka on the law governing a lulav on the first day of Sukkot, namely, that a borrowed lulav is disqualified. The Gemara at the beginning of the third chapter that deals with this law explains that even on the other days of the holiday, when there is no requirement of "yours" with respect to the lulav (for which reason a borrowed lulav is fit), a stolen lulav is still disqualified, but for a different reason:

 

A stolen [lulav] – granted on the first day of the festival, regarding which it is written: "for yourselves" – belonging to you. But on the second day of the festival, why not? - Rabbi Yochanan said in the name of Rabbi Shimon ben Yochai: Because it is a mitzva that is achieved through a transgression (mitzva ha-ba'a be-aveira). (Sukka 29b-30a)

 

            With God's help, when we reach chapter Lulav Ha-gazul, we shall deal at length with the issue of a mitzva that is achieved through a transgression. Today we are interested in a question that arises in relation to our passage: Why do we need the derivation: "'The feast of booths shall you observe for yourself seven days' – belonging to you," when according to the Sages it excludes only a stolen sukka? Surely, in order to disqualify a stolen sukka, there is no need for a law requiring possession, for it is disqualified by the law of mitzva ha-ba'a be-aveira!

 

            We shall not deal in this shiur with all the answers that were given to this question, because they are too many to count, but we shall try to relate to some of them.

 

THE POSITION OF THE TOSAFOT (AND THE RAMBAN)

 

"They need it to exclude a stolen [sukka]" – There is a question. Let them derive it from the fact that it is a mitzva achieved through a transgression. For it is for that reason that we disqualify a stolen etrog on the second day of the festival, below at the beginning of [chapter] Lulav Ha-gazul. And that passage itself is difficult, for it says: Granted on the first day of the festival, regarding which it is written: "for yourselves" – belonging to you. But on the second day of the festival, why not? And it answers: Because it is a mitzva achieved through a transgression. Now then why do I need "for yourselves" – belonging to you? There, however, it is possible to answer that it is needed to exclude a borrowed [lulav], but regarding sukka we cannot answer in this manner, for it is stated below in chapter Ha-Yashen that a person fulfills his obligation in another person's sukka. And this is derived from the verse: "All those that are home born shall dwell in booths" (Vayikra 23:42) – this teaches that all of Israel are fit to dwell in one sukka. It may be suggested that the disqualification of mitzva ha-ba'a be-aveira is only by rabbinic law.  (Tosafot, Sukka 9a, s.v ha-hu)

 

            The Tosafot propose here a far-reaching novelty, that the entire law regarding mitzva ha-ba'a be-aveira is only a rabbinic institution. Of course, this does not mean that by Torah law one is permitted to violate a prohibition in order to fulfill a mitzva – there are rules regarding when we say that a positive commandment pushes aside a negative commandment, and when we say that it does not; and the expression, "a commandment achieved through a transgression," applies only in a case of transgression and improper conduct (Rabbenu David in his novellae to Pesachim 35a clarifies this point at length). But the disqualification of the mitzva is only by rabbinic law.

 

TOSAFOT RABBENU PERETZ

 

            Another position from the Tosafist school appears in Tosafot Rabbenu Peretz in Pesachim 35a, and is cited by the Ramban and Rabbenu David in the name of the Tosafot. According to this position, the law regarding a mitzva that is achieved through a transgression applies only to certain specified mitzvot, which include sacrifices and lulav, but not sukka. What type of mitzvot are included? Let us examine Rabbenu Peretz's formulation: "A stolen lulav is different, for we pray with it, and praise God with it in order to appease him, and so too a sacrifice, and so too [other] mitzvot which come to appease." Rabbenu David formulates this position slightly differently: "The law regarding a mitzva that is achieved through a transgression relates only to a sacrificial offering, as Scripture states: 'For I the Lord hate robbery with burnt offerings' (Yeshayahu 61:8) - [teaching] that a prosecutor does not turn into a defender. And the law governing a lulav is similar to the law governing a sacrifice, for it too comes to appease and it is like a sacrifice." The novelty in this position, beyond the significant restriction of the law regarding mitzva ha-ba'a be-aveira, is seeing the mitzva of lulav as similar to a sacrifice that comes to appease (Rav Yaakov Nagan expanded upon this idea in his article appearing in Alon Shevut 142). We, God willing, will deal with these two issues when we reach the third chapter; let us note already that the Ramban rejected this restriction of the law regarding a mitzva that is achieved through a transgression, and adduced proof from the Yerushalmi (Shabbat 13:3), which discusses the rule of mitzva ha-ba'a be-aveira in relation to a mourner's obligation to tear his garment and the mitzva of eating matza on Pesach:

 

Here too he did not fulfill his obligation to rend [his garment]… The colleagues asked Rabbi Yose: Did not Rabbi Yochanan say in the name of Rabbi Shimon ben Yotzedek: A person does not fulfill his obligation on Pesach with stolen matza! He said to them: There the thing itself is a transgression. But here he commits a transgression.

 

THE MINCHAT CHINUKH

 

            The Minchat Chinukh (325, 10) proposes his own answer to reconcile the difficulty raised by the Rishonim from the rule of mitzva ha-ba'a be-aveira. His position touches upon several fundamental issues, and is based on assumptions that require discussion, and therefore we shall deal with his position at greater length.

 

            For those who have not yet had a chance to study his position, here is another opportunity:

 

There are two kinds of positive precepts: One that is an obligation falling on the head of every man of Israel like tefilin, etrog, and the eating of matza. Such a mitzva – if a person fulfills it, he does the will of the Creator, because this is what the King decreed. And if he neglects the mitzva and fails to don tefilin or take a lulav, he nullifies the mitzva and acts in opposition to His will, and he will surely be punished. And there are mitzvot that one is not obligated to perform, like tzitzit, for the Torah did not obligate a person to wear a four-cornered garment, and if he so desires, he may go about without a four-cornered garment, and this is not against the will of the Creator. If, however, he brings himself to obligation, intentionally wearing a four-cornered garment in order to fulfill the mitzva of tzitzit, this is the good and righteous path. The rule is that if he fulfills this mitzva, he does the will of the Creator, but if he fails to fulfill the mitzva, he does not violate His will, but merely does not fulfill the mitzva.

So too, regarding this mitzva, namely, sukka, there are two parts to the mitzva. That is to say, on the first night of Sukkot, there is a positive precept to eat the measure of an olive in a sukka, and a person is obligated to look for a sukka, and it does not help that he does not want to eat, because he is obligated to eat, as with matza or tefilin. And if he fails to fulfill the positive precept on the first night, he acts against God's will. But on the rest of the nights and days, if he does not want [to eat], he may abstain from eating and not sit in a sukka, and he is bound by no obligation, as with tzitzit. If, however, he eats, there is a positive precept to eat in a sukka and he fulfills His will, but if he does not eat, there is no obligation to do so. And also regarding these two mitzvot, there is a case where he nullifies the mitzva and acts against His will, like one who fails to don tefilin. For example, if he wears a four-cornered garment without outfitting it with tzitzit, then he violates the mitzva. And so too if he eats a regular meal outside the sukka, he violates the mitzva. The rule is that if a person performs a mitzva, he fulfills the mitzva in all cases, and does His will. And there is a case where he fails to perform a mitzva and thus violates His will, e.g., where he wears a four-cornered garment [without tzitzit] or eats a regular meal outside the sukka. And there is a case where he fails to perform a mitzva, but also does not violate [anything], e.g. where he does not wear the garment or does not eat anything. This is evident.

Regarding a mitzva that is achieved through a transgression, that one does not fulfill his obligation, it seems that the reason is that the Holy One does not want, and it is not favorable before Him, that the defender should become a prosecutor, "for I the Lord hate robbery with burnt offerings" (Yeshayahu 61:8); see Ran, chap. Lulav ha-gazul (14a in Alfasi). Now because of this it is pertinent to say that he does not fulfill the mitzva, because this is not the will of the Creator, and so he has not fulfilled the mitzva. Now this applies to an obligatory mitzva, since he did not fulfill his obligation regarding the mitzva, thus he did not do the mitzva and he nullified the mitzva, for the one depends on the other, as we have explained. But regarding mitzvot that are not obligatory, like tzitzit or sukka on the rest of the days of the festival, if they are achieved through a transgression – while it is true that he did not fulfill the will of the Creator, because this is not His will, but nevertheless he did not nullify a mitzva, but merely failed to fulfill it, and he is like one who is not wearing a [four-cornered] garment, or not eating at all, who does not fulfill the mitzva. Here too, while he has not fulfilled the mitzva, because this is not favorable before Him, but nevertheless he has not nullified it, and we cannot treat him as one who has eaten outside the sukka or has worn a garment without tzitzit. He is merely like one who does not do the mitzva at all, and goes without a garment or doesn't eat at all, for in truth he is wearing tzitzit and eating in a sukka, it is just that it is not favorable before Him, so it is as if he has not fulfilled the mitzva. But we cannot treat him as if he nullified the mitzva, since he performed the mitzva. Contemplate this and you will understand. There is also a practical ramification, for if he does not want to eat in a sukka, and he eats outside a sukka, or he wears a four-cornered garment and does not want to cast tzitzit on it, we compel him to do so until his soul departs, as in the case of all positive precepts. But in our case, where he is regarded like one who is not wearing a garment, or is not eating, therefore we do not compel him if he wishes to eat in such a sukka, since he is not nullifying the mitzva.

This is true if we say that [the disqualification of a stolen sukka] is because of a mitzva that is achieved through a transgression. But if the Torah explicitly disqualified a stolen sukka, it is as if he used disqualified sekhakh that does not grow from the ground or contracts ritual impurity, which is not a sukka at all. And if he eats there it is as if he is eating in his house, for the Torah decreed that this is not at all a sukka. Therefore, if it is because of a mitzva achieved through a transgression, then even though if he sat in such a sukka on the holiday he did not fulfill the mitzva, he also did not nullify the mitzva. But now that the Torah revealed that a stolen sukka is disqualified, it is as if he nullified a positive precept, as if he were eating in his house. Therefore, the Torah wrote "yours", to exclude that which is stolen regarding a sukka and regarding tzitzit. Thus it seems to me. The rule regarding a mitzva achieved through a transgression is that the mitzva is a mitzva, only it is achieved through a transgression. Thus, the sukka is a sukka, and it is only that it is not regarded favorably, but nevertheless he is not sitting outside a sukka, and he is not nullifying a mitzva. But that which the Torah disqualified is not a mitzva at all, and he transgresses by sitting outside the sukka.

 

            The essence of what he is saying is that mitzva ha-ba'a be-aveira is not a disqualification of the cheftza shel mitzva – the object with which the mitzva is performed, but rather it is a deficiency in the fulfillment of the mitzva, this not being the manner in which God desires the mitzva to be performed. Therefore, in the case of obligatory mitzvot – there is a nullification of the positive precept, but in the case of a "fulfillable" mitzva, e.g., sukka all seven days of the festival, there is indeed no fulfillment of the mitzva, but there is also no nullification of the mitzva, for the person does not eat outside of a kosher sukka. When the Torah teaches that over and beyond the general rule governing a mitzva ha-ba'a be-aveira, a stolen sukka is a disqualified sukka, it teaches that a person who sits in a stolen sukka over the course of Sukkot, not only does he not fulfill the mitzva of sukka, but he also nullifies the mitzva, for he is eating in a disqualified sukka, and is therefore treated as one who is eating outside a sukka.

 

            This is the essence of the Minchat Chinukh's argument, and the words are certainly fitting to him who said them. His argument, however, is based on a number of assumptions that are subject to dispute, and we shall deal with each of them separately.

 

1) THE NATURE OF THE LAW OF MITZVA HA-BA'A BE-AVEIRA

 

            We shall deal with this issue, God willing, in the framework of chapter Lulav ha-Gazul, but we will mention here one point regarding which the Acharonim raised objections against the position of the Minchat Chinukh. He argues that the law of mitzva ha-ba'a be-aveira is not a disqualification of the mitzva-object, but rather a deficiency in the fulfillment of the mitzva, it not being God's will that the performance of a mitzva be achieved through the commission of a transgression. Others, however, argue with this assumption, and understand that this disqualification turns the object into an abominable and despicable article that is not defined as a mitzva-object. See, for example, the words of Rabbi Shimon Shkop, at the beginning of his work, Sha'arei Yosher:

 

It is more reasonable to say that the disqualification of mitzva ha-ba'a be-aveira is a disqualification in the object itself. As the Gemara states in chapter Lulav Ha-Gazul: "That which is stolen is similar to that which is lame." That is to say, a stolen animal is disqualified in the same manner as an animal with a physical defect is disqualified from serving as a sacrifice (= and there it is brought as the source of the law of mitzva ha-ba'a be-aveira, and not as a separate law of that which is stolen). And it seems to me that this explains that which we say that a stolen sukka is kosher because land cannot be stolen, even though one is forbidden to steal land, and it would seem to be a mitzva ha-ba'a be-aveira. See the novellae of the Rashba,[1][1] where he writes: "But what is correct here, since he does not acquire it [= the sukka] at all, and it remains in its [original] owner's possession, and the mitzva does not remove it from its owner's possession, it is not considered mitzva ha-ba'a be-aveira. It is as if there were some other field in his possession, which, even though he sins, the sukka is not disqualified thereby. Thus does it seem to me. Thus far, the words of the Rashba. In my humble opinion, he means to say that in the case of a stolen sukka, since it does not leave its [original] owner's possession, there is no disqualification of the sukka itself, only that the person commits a transgression while he fulfills the mitzva. But in the sukka itself there is nothing of the transgression that disqualifies it, and it is as if he commits a transgression of theft in someone else's field. It is not the same as [theft of] movable sekhakh, for in that case the transgression is committed in the sekhakh itself, since it leaves the possession of the [original] owner. This is like the Yerushalmi's distinction between rending on Shabbat and eating stolen matza, for in the case of matza it itself is a transgression, whereas in the case of rending, he commits a transgression. (Gate 3, chap. 19)

 

2) THE NATURE OF THE MITZVA OF SUKKA DURING THE SEVEN DAYS OF THE FESTIVAL

 

The Minchat Chinukh assumes as self-evident that the mitzva of dwelling in a sukka all seven days of the holiday is a "fulfillable" mitzva, based on the position of the Sages, p. 27a, that there is no obligation to eat in a sukka, but if a person wishes to eat a regular meal, he must do so in a sukka. In our introductory shiur, we partially cited his words, and in contrast – besides the partial reservations that stem from the words of the Rishonim – we brought the words of the Atvan De-Oraita (no. 11), who disagrees on the level of principle:

 

The position itself of the aforementioned Minchat Chinukh, who writes that sukka is exclusively a negative mitzva – it seems, in my humble opinion, that this is not true. Rather, sukka is a positive and independent mitzva, for the Torah requires us to live for seven days in a sukka, just as we live all year long in the house. As they said: "You shall dwell" – similar to [normal] residence. The fact that if a person wishes, he doesn't have to eat or sit in a sukka, that is because that is the essence of residence, that occasionally a person goes out or to the market, and only when he wishes to eat, drink or sleep, does he eat, drink and sleep exclusively in his house. This is the idea of residence in his house, and thus the Torah wanted us to live for seven days in a sukka. And therefore when the Torah requires residence in a sukka, it is an independent and positive requirement.

 

3) NEUTRAL SITUATIONS IN "FULFILLABLE" MITZVOT

 

            The Minchat Chinukh's central point involves perhaps the most difficult assumption. According to him, on the assumption that we accept his position – which is very reasonable in and of itself, even if not necessary – that the mitzva of sukka all seven days of the festival is a "fulfillable" mitzva, we can still talk about three different situations. The optimal situation involves fulfillment of the mitzva; the worst situation involves nullification of the positive precept – a transgression for which one is held accountable; the intermediate situation is one in which there is no fulfillment, but also no nullification. The very existence of such an intermediate state is obvious – that is what happens when a person neither eats nor sleeps. According to the Minchat Chinukh, however, such a state is possible even when a person eats, if he eats in a sukka that in and of itself is kosher, but there is no fulfillment of the mitzva (as he understands the case of mitzva ha-ba'a be-aveira). This argument is very difficult – surely when a person eats on Sukkot, the Torah commands him to do so in a sukka. Thus, we must examine his actions – if he fulfilled this demand, he has fulfilled a mitzva, but if not, he has nullified a mitzva. How is possible not to fulfill what one is required to do, and yet not to nullify it?

 

            In our introductory shiur we mentioned that when the Atvan De-Oraita brings the position of the Minchat Chinukh, he uses a more extreme formulation than what is implied by the words of the Minchat Chinukh himself:

 

Eating in the sukka is not pleasing and desired in itself, for were that the case, it would not be right to leave that eating to the will of the individual, so that it is optional. Perforce, then, the intention of the mitzva lies exclusively in the negation, that when a person eats, he must not eat outside the sukka, and eating outside the sukka is what is not pleasing. But eating in the sukka in itself is not at all pleasing or desired.

 

            According to this formulation, the meaning of the "fulfillable" mitzva is that in essence there is no mitzva at all, but only a prohibition to eat outside the sukka, the sukka serving as sort of a matir (grant of permission) that allows eating. The conclusion that the Atvan De-Oraita wishes to draw from here is that women, who are not included in this prohibition, should not be permitted to recite a blessing over the mitzva of sukka, because there is no value here whatsoever of fulfilling the mitzva on the level of "one who is not commanded but acts" (eino metzuve ve-ose), but merely of escaping the violation of a prohibition which in any case does not apply to them. As was mentioned earlier, he himself retracted this understanding of sukka, and went to the other extreme, concluding that sukka is an obligatory mitzva. But he retained this understanding with respect to tzitzit – there is a prohibition to wear a four-cornered garment without tzitzit, and therefore women – who are not included in this prohibition – may not recite a blessing over tzitzit by strict law, and not merely because of issues of arrogance or the like.

 

            In contrast to the Atvan De-Oraita, the Avnei Nezer (Orach Chayyim, no. 481) understands that tzitzit is not merely a prohibition to wear a four-cornered garment without tzitzit, but rather a mitzva to cast tzitzit on a four-cornered garment. But he argues that the mitzva of sukka all seven days of the festival is indeed a prohibition to eat outside a sukka:

 

Regarding sukka we can indeed say that that the sukka allows eating, pleasure and sleeping… And this is the implication of our passage which compares sukka to matza all seven days [of Pesach] which is optional. Thus it is clear that it is merely a prohibition not to eat outside a sukka, just as it is forbidden to eat chametz.

 

            Of course, if we accept this formulation, things change regarding the course adopted by the Minchat Chinukh. In effect, there are not three different situations regarding a mitzva like sukka, but only two: The negative situation is the situation of nullifying the mitzva, which involves a prohibition, and the neutral situation is the situation of avoiding the prohibition. According to this, there is no logical difficulty accepting the Minchat Chinukh's position regarding mitzva ha-ba'a be-aveira: In such a situation, there is no fulfillment of a mitzva, but it is not called eating outside the sukka, and in such a situation, one does not violate the prohibition of eating outside a sukka.

 

            However, as we noted in our introductory shiur, this formulation that was proposed by the Atvan de-Oraita prior to his retraction, and by the Avnei Nezer in his conclusion, is very difficult. Surely we are not dealing here with prohibitions, but with a clear case of a mitzva, which a person should run after and observe, and it is clear that when a person eats in a sukka he fulfills a mitzva more so than when he refrains from eating altogether.

 

            Thus Rabbi Shimon Shkop attacks the position of the Minchat Chinukh:

 

That which was proposed by the Minchat Chinukh, namely, that regarding tzitzit and sukka, even if a person does not fulfill the mitzva, he does not nullify the positive precept – is unreasonable. For were there room to say that the Torah's intention regarding the mitzva of tzitzit is that the Torah forbids the wearing of a four-cornered garment without tzitzit, and similarly regarding sukka, it forbids normal dwelling in a house outside a sukka, and this is the essence of the mitzva, that when a person eats, his eating should not be outside a sukka, and when he wears [a four-cornered garment], it should not lack tzitzit, then the words of the Minchat Chinukh would be understandable. For if he wears a four-cornered garment and casts tzitzit on it that fall into the category of mitzva ha-ba'a be-aveira, there is room to say that this is not regarded as being dressed without tzitzit, for there are tzitzit on the garment, and even though he does not fulfill the mitzva, he does not violate the words of the Torah which warns us not to wear a garment without tzitzit, for it is not without tzitzit… But in truth it is clear to me, in my humble opinion, that the intention regarding the mitzva of tzitzit is as follows: When a person wears a four-cornered garment, there is an obligation falling upon his person to cast tzitzit on the garment, and after he dons the garment, he is obligated in the mitzva as in the mitzva of tefilin. Only if he does not wear it, there is no mitzva. And similarly regarding sukka, if he does not eat there is no obligation to dwell in the sukka, but when he decides to eat a regular meal, a new obligation falls upon him. Thus, it seems to me.

And similarly regarding sukka, when a person suffers distress, he is exempt from the sukka, the reason being that we learn from "'You shall dwell' – like [normal] residence," that even if he is in the sukka, he does not fulfill the positive precept of sukka, because it is not like normal residence, and therefore he is exempt. But if the essence of the mitzva is not to eat outside the sukka, the person should be obligated to refrain from eating altogether, so as not to violate this prohibition unless it involves pikuach nefesh, as in other mitzvot. This proves that when he is wearing [the tzitzit] and while he is eating [in the sukka], then the mitzva of tzitzit and sukka are obligatory mitzvot like other mitzvot: matza, tefilin, and the like. It seems to me that a sukka that involves a mitzva ha-ba'a be-aveira is disqualified for all the days of the festival, and so too tzitzit. In any event, what the Rashba[2][2] writes there that the primary disqualification of a stolen sukka that we learn from the verse is because of mitzva ha-ba'a be-aveira is certainly against the words of the Minchat Chinukh, for it is disqualified for all the days of the festival. (ibid.)

 

            It should be noted, however, that the words of the Minchat Chinukh themselves do not imply the problematic formulation of the Atvan De-Oraita and the Avnei Nezer:

 

If he does not want [to eat], he may abstain from eating and not sit in a sukka, and he is bound by no obligation…. If, however, he eats, there is a positive precept to eat in a sukka and he fulfills His will, but if he does not eat, there is no obligation to do so…. And so too if he eats a regular meal outside the sukka, he violates the mitzva. The rule is that if a person performs a mitzva, he fulfills the mitzva in all cases, and does His will. And there is a case where he fails to perform a mitzva and thus violates His will, e.g., where he wears a four-cornered garment [without tzitzit] or eats a regular meal outside the sukka. And there is a case where he fails to perform a mitzva, but also does not violate [anything], e.g. where he does not wear the garment or does not eat anything.

 

            His words clearly imply that there are three different levels, and that it would not be right to define the mitzva of sukka all seven days as a prohibition to eat outside the sukka. But as stated above, according to this formulation, it is difficult to define the intermediate level – if the prohibition stems exclusively from the fact that he nullifies the positive precept, how can one talk about the situation in which the obligation in the mitzva applies – a regular meal, where one does not fulfill the mitzva, but yet does not nullify it? It seems that while it is clear to the Minchat Chinukh that when a person eats in the sukka he fulfills thereby a mitzva and does not merely avoid transgressing a prohibition, the prohibition of eating outside a sukka is not merely the result of a lack of fulfillment of the mitzva in a situation of obligation, but rather an independent factor – sort of a prohibition stemming from the positive precept not to eat outside of a sukka all seven days of the festival; and thus we can talk about a case where a person eats, and on the one hand does not fulfill a mitzva -– for it is a mitzva ha-ba'a be-aveira, but on the other hand, he does not violate a prohibition, for the conditions for violating the prohibition – eating outside a sukka – are not met. Of course, this assumes that the act of a mitzva is meaningful even when there is no fulfillment of the mitzva. This has important conceptual ramifications which we will not expand upon here.

 

            From the words of the Mishna Berura in his Be'ur Halakha, it might be understood that he rejects the basic understanding of the Minchat Chinukh:

 

If a person was called to the Torah and he takes his own tallit or a tallit belonging to the community to go up to the bima, in which case he is anxious and presumably does not intend in his action to fulfill the positive precept of tzitzit, he violates thereby the positive precept, unless his intention is for the sake of the mitzva, in which case he can also recite a blessing. The world, however, is not careful about this. (Mishna Berura, 60:4.

 

            It is clear to the Mishna Berura that if mitzvot require intention, so that there is no fulfillment of a mitzva without the proper intention to fulfill it, then if a person wears a tallit without the intention of fulfilling the mitzva, he violates the prohibition of wearing a four-cornered garment without tzitzit. This is against the Minchat Chinukh, who argues that the failure to fulfill a "fulfillable" mitzva does not imply the nullification of the mitzva, if the mitzva act in and of itself was performed.

 

            It is interesting to note, that Rabbi Shelomo Zalman Auerbach, ztz"l, (Responsa Minchat Shelomo, no. 1), who rejects the position of the Minchat Chinukh in a manner very similar to that of the Sha'arei Yosher, chose not to accept the position of the aforementioned Be'ur Halakha:

 

It is possible that in the case of tzitzit and sukka, in a situation where it is a mitzva ha-ba'a be-aveira, we say that since he did not perform the mitzva, he is regarded as having violated the positive precept. Since they are not fit for the mitzva because of mitzva ha-ba'a be-aveira, we say that there is also a nullification of the positive precept. This is not the case here where the tzitzit and the sukka are fit for the mitzva, with no defect, and if he would merely have intention for the mitzva, he would fulfill the positive precept. In such a case we say that despite the fact that if he wears the garment without intending to fulfill the mitzva, he does not fulfill the mitzva, nevertheless there is also no nullification of the positive precept, because he is not obligated at all to put tzitzit on a garment that already has proper tzitzit. This is against the aforementioned Mishna Berura, who writes that he violates the positive precept. Thus, after he has put tzitzit on his garment, despite the fact that if he wears it again with the mitzva in mind, he fulfills the mitzva every time he wears it, and must recite the blessing, nevertheless if he does not have the mitzva in mind, so that he does not fulfill the mitzva, since he is not obligated to put tzitzit on [the garment], we see it as a three-cornered garment that is exempt from tzitzit… And more than this, it seems to me that it is possible that if he wears a tallit or eats in a sukka and states explicitly that he does not have the mitzva in mind, in which case all agree that he has not performed the mitzva, nevertheless we do not see him now as violating the positive precept, for regarding such a person I do not impose the verse, "You shall dwell in booths," for he is already dwelling in one, and similarly the verse, "You shall make fringes," for they are already made.

 

            Later, however, he suggests that regarding sukka the law might be different:

 

With respect to the matter about which we are in doubt, it seems to me that a distinction may be made between sukka and tzitzit. With respect to tzitzit we can say that one who is wearing tzitzit without [the proper] intention does not fulfill a mitzva, but still does not commit a transgression. This is because there is no obligation whatsoever on his person to wear a garment that has tzitzit, and therefore, as regards the allowance to wear the garment, it is similar to the mitzva of covering the blood [after ritual slaughter], that if he covered the blood without intention, or if the wind covered it, even though he has not fulfilled the positive precept, nevertheless he is not obligated to uncover the blood, since the blood is in any event covered. So too here he is not forbidden to wear the garment, because it has tzitzit. This is not the case regarding sukka, where there is also an obligation falling on the person of dwelling seven days in a sukka in the same manner that he resides in his house, and a person is obligated to conduct himself all seven days in his sukka as in his house. Therefore, as soon as he wishes to do something that a person ordinarily does only in his house, e.g., eating a regular meal or going to sleep, he is immediately obligated in the mitzva of dwelling in a sukka. This being the case, it is possible that since a person who does not have [the proper] intention [for a mitzva] is regarded as if he did not do the mitzva, he is, therefore, like one who dons tefilin without intention, where it is considered as a head on which there is no tefilin. This is because the main thing is not the act of donning the tefilin, but rather the fulfillment of the mitzva, and the same may be true regarding sukka. The matter requires [further] examination.

 

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            Next week's shiur will deal with various topics related to the obligation of women and children in sukka. See the Mishna on p. 28a, "nashim ve-avadim…," and the Gemara until the Mishna on p. 28b. See also the following:

 

1)         Regarding the words of Abaye regarding the sukka of a person and his wife, see also Arakhin 3b, "ha-kol chayavin be-sukkave-chayavim ba-laila." And Rashi, ad loc., and the variant reading in the Mesoret ha-Shas.

2)         Regarding the dispute between Bet Shammai and the Sages concerning a minor, see Ritva 28b, s.v. ve-shi'ur, s.v. ha de-amrinan ve-Shamai.

 

(Translated by David Strauss)

 



[1][1] Chiddushei ha-Ritva 31a, s.v. tanu rabbanan (end). The Ritva's novella to Sukka were wrongly attributed to the Rashba. See editor's introduction in the Mossad HaRav Kook edition.

[2][2] Ritva, 31a, s.v. aval (end).