Treehouse Sukkah

Sukkah (2:3) | Yisrael Bankier | a year ago

The Mishnah (2:3) teaches that if one constructed a sukkah on top of a camel or in a tree, the sukkah is valid. One however, is not allowed to go into the sukkah on yom tov. The Bartenura explains that on yom tov the Chachamim forbad climbing or using a tree out of concern that they might break off a branch. The Tosfot Yom Tov notes that a similar gezeira applies to riding animals on Yom Tov, out of concern one might break of a branch to control the animal when riding it (Beitzah 5:2). One would however be able to use the sukkah during chol hamoed, when the gezeira does not apply.

The Gemara explains that whether the sukkah is also valid during chol hamoed is the subject of debate. Our Mishnah is according to the opinion of R' Meir. R' Yehuda however argues that since the Torah writes "you shall dwell in your sukkot for seven days", the sukkah must be fit for dwelling in for all seven days of sukkot. Since the sukkah cannot be used on yom tov, the sukkah is not valid on chol hamoed either.

The Gemara explains that R' Meir reasons that on a biblical level, the sukkah is indeed fit for dwelling in for all seven days of sukkot. It is a rabbinic gezeira that prohibits one from using it. Consequently, the sukkah fits the Torah's definition of a sukkah. While the Gemara's discussion is focused on the case of the sukkah on a camel's back, the Tosfot explain that it applies equally to the case of the sukkah in a tree.

One might still ask, even though the prohibition is rabbinic, it still prevents the person from using the sukkah for the full seven days. Why then, according to R' Meir, is the sukkah still valid during chol hamoed?

The Shaarei Yitzchak (cited by Yalkut Biurim 23a) explains that the while there is a rabbinic gezeira preventing the person from utilizing the sukkah, the prohibition applies to the person and not the sukkah. Put simply, the prohibition is on the gavra (the person) and not the cheftza (sukkah). Consequently, the sukkah itself is a valid sukkah for use. There is no pesul that applies to it on any of the days of sukkah. Instead, there is simply a side technical reason why one may not enter it on sukkot. Consequently, R' Meir maintains that the sukkah can be used during chol ha'moed.

How would R' Yehuda respond?

The Avnei Nezer (472:4) explains that according to R' Yehuda even though that which is preventing him from going into the sukkah is rabbinic it would still invalidate the sukkah on a biblical level. He explains that we have a principle of teshvu ke'ein tadur. In other words, since the Torah instructs us to dwell (teshvu) in the sukkah, one must be able to live in the sukkah as they would in their home. That is the basis for the exemption of a mitzta'er -- one who is pained with being in the sukkah. If one's house was on a camel, they would not enter it on yom tov given the issur. Therefore, the sukkah would not qualify for teshvu ke'ein tadur. There is no difference whether the anguish is a physical discomfort are caused by a rabbinic prohibition. Unless we are dealing with someone who disregards rabbinic law, this individual is a mitztaer and the sukkah, according to R' Yehuda, is not fit for use for the duration of sukkot.

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