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Sukah 10

1) ONE SUKAH BENEATH ANOTHER SUKAH

QUESTION: The Gemara discusses the various possibilities of one Sukah underneath another Sukah. The Gemara says that if the bottom Sukah has more shade than sunlight while the upper Sukah has more sunlight than shade, and both are within 20 Amos of the ground, the upper Sukah is Pasul (i.e. one cannot eat in the upper Sukah) because there is more sunlight than shade in that Sukah, and the bottom Sukah is valid because there is nothing above it to make it Pasul. (Rashi explains that the Sechach of the upper Sukah that is above it is not considered Sechach at all, since there is more sunlight than shade.)

The Gemara says that it is not obvious that the bottom Sukah is valid. We might have thought that the bottom Sukah should be Pasul because of a Gezeirah, lest one might think it is permissible to use Pasul Sechach together with valid Sechach for his Sukah. The Gemara teaches that there is no such Gezeirah and we are not afraid that someone will make that mistake.

Rashi explains that the Havah Amina is that we are afraid that one might sit in the lower Sukah even when the upper Sukah is taller than 20 Amos (in which case the Sechach of the Sukah is Pasul, and joins with the Sechach of the lower Sukah to invalidate the lower Sukah).

Why are we concerned that a person may sit in the lower Sukah even when the Sechach of the upper Sukah is higher than 20 Amos? If we have such a concern, then *every* Sukah should be invalid, for fear that the person will sit in it even if its roof is higher than 20 Amos!

ANSWERS:

(a) RASHI (DH Tachtonah Kesherah) explains that the Gezeirah would apply only here because the bottom Sukah has all that it needs to make it valid, as it has more shade than sunlight. Therefore, one might forget that it is possible to invalidate it with the upper Sukah that has more sunlight than shade coming in. (That is, we are afraid that one will ignore that upper Sukah since it is not a full Sukah while the bottom one is.)

(b) RABEINU TAM, cited by Tosfos (9b, DH Ha), asserts that Rashi's explanation is forced. Rabeinu Tam explains the Gemara based on a different Girsa. According to his Girsa, the Gemara does not say that *both* the lower and upper Sukos are within 20 Amos, but that the *bottom* Sukah is within 20 Amos (implying that the upper Sukah is higher than 20 Amos). (The RITVA here and the BA'AL HA'ME'OR (2a) cite a similar Girsa in which the Gemara states explicitly that the upper Sukah is higher than 20 Amos, which is the same thing as saying that the bottom one is below 20 Amos.)

According to Rabeinu Tam, the Sechach of the upper Sukah -- which has more sunlight than shade -- is above 20 Amos, and nevertheless the bottom Sukah is valid because the Sechach of the upper Sukah does not invalidate it. He explains that Sechach which is above 20 Amos is not considered to be invalid Sechach; it is the *Sukah* which is Pasul, because it is a "Diras Keva," but the Sechach itself is not Pasul. Therefore it does not invalidate the Sechach which is below it.

According to Rabeinu Tam, it is certainly a Chidush that there is no Gezeirah invalidating the lower Sukah in such a case. Even though one might confuse this case (of a Sukah beneath another Sukah which is 20 Amos high) with a case of a Sukah beneath a tree and think that such a Sukah is valid, we are not concerned for such an error and there is no such Gezeirah.

(c) The RA'AVAD (commenting on the Ba'al ha'Me'or, 2a) has the Girsa of the Ritva (mentioned above, (b)) that the upper Sukah has Sechach which is above 20 Amos). He argues with Rabeinu Tam and says that Sechach above 20 Amos *is* Pasul. He explains, though, that the reason the bottom Sukah is valid in this case is because the pieces of invalid Sechach that are above 20 Amos are positioned *between the pieces* of the valid Sechach below, and therefore the lower Sukah still has a majority of shade even after taking away the shade created by the upper (Pasul) Sechach.

This is the meaning of "b'she'Chavtan" according to the Ra'avad -- one makes each piece of Sechach the only layer. This is also the Rambam's understanding (Hilchos Sukah 5:13, according to the Magid Mishnah). The Chidush of the Gemara is that we might have thought that the lower Sukah should be Pasul because one might think it is valid even when the Sechach of the upper Sukah is directly above the Sechach of the lower Sukah. The Gemara teaches that we are not concerned for such an error.

QUESTION: Rav Huna says that in order for the lower Sukah to be Pasul because it is a Sukah underneath a Sukah, the distance between the Sechach of the upper Sukah and the Sechach of the lower Sukah must be at least one Tefach. He derives this figure from the laws of Tum'as Ohel, in which a covering is only considered to be an Ohel if the space below it is at least one cubic Tefach.

RASHI (DH Tefach Al Tefach) explains that only when there is a cubic Tefach of open space under a covering is that covering considered an Ohel, with two practical ramifications. First, since it is not an Ohel if it is less than one cubic Tefach, it does not spread the Tum'ah from one point under the covering to another point under the covering. Second, if there is an object on top of the covering, the Tum'ah will go right through the covering, since there is no Ohel to block the Tum'ah. Rashi adds that when there is less than a Tefach between the object of Tum'ah and the covering above it, it is called "Tum'ah Retzutzah" and it breaks through the covering and rises.

Why does Rashi introduce the principle of "Tum'ah Retzutzah?" It should suffice to say that when there is not a Tefach of space, there is simply nothing to stop the Tum'ah from rising upwards, since there is no Ohel above it. Why does Rashi have to add the new principle of "Tum'ah Retzutzah," which is a force which enables the Tum'ah to actively penetrate the covering above it? No active force to push the Tum'ah through the covering is needed here, because the Tum'ah continues by itself through the covering since it is not considered an Ohel or a Hefsek (and it needs no active force to push it)!

ANSWER: In the question, we assumed that the only thing that can stop Tum'ah from spreading upward is an Ohel. Rav Moshe Shapiro, Shlit'a, pointed out that from the Gemara in Chulin (125b) we learn that a covering which is not an Ohel is also able to stop Tum'ah from spreading upward. The Gemara there says that Rebbi Yosi holds that if one puts a rope within one Tefach above a corpse, then something that passes above the rope thereby being Ma'ahil (creating an Ohel) on the Mes will not become Tamei. Rebbi Yosi is of the opinion that Tum'ah cannot break through any intervening substance and rise ("Boka'as v'Olah"). In such a case there is no Ohel stopping the Tum'ah from spreading, and yet we still see that Tum'ah does not reach above the covering. The logic behind this is that the object that is above the covering is not being Ma'ahil (creating an Ohel) over the corpse, but rather it is being Ma'ahil over the covering which is over the corpse (and whatever is beneath the covering is inconsequential). This is why Rashi had to mention the additional principle of "Tum'ah Retzutzah;" even though there is no Ohel here, nevertheless the Tum'ah would not spread above the covering unless there is another force pushing it through -- and that is the force of "Tum'ah Retzutzah."

(One could ask that we find in Ohalos 6:1 that if a Kli which is Mekabel Tum'ah is even a few Tefachim above a corpse, it does not stop Tum'ah from spreading upwards. It is understandable that it is not considered an Ohel to stop the Tum'ah, since it itself is a Kli which is able to be Mekabel Tum'ah. Why, though, should it not block the Tum'ah from rising? If a covering stops Tum'ah from rising without being an Ohel, then a Kli should also stop Tum'ah from rising! It must be that the type of covering that can stop Tum'ah from spreading is only a type of covering that Tum'ah cannot enter. If the covering itself can become Tamei (like a Kli), then whatever is Ma'ahil over that covering is considered to be Ma'ahil over the corpse.)

The Acharonim point out that there are additional consequences of the rule of "Tum'ah Retzutzah," i.e. that there exists a positive force which pushes Tum'ah upwards and downwards when it is "squashed" into less than a Tefach. First, we know that a tightly sealed earthenware vessel ("Tzamid Pesil") blocks Tum'as Mes b'Ohel from being Metamei an object inside of it. However, a "Tzamid Pesil" which is above a Tum'ah Retzutzah does become Tamei (RASH, end of Ohalos 9, from Tosefta); it is the force of Retzutzah which pushes the Tum'ah through. Second, if a person is standing above a Tum'ah Retzutzah, it is as if he is touching the Tum'ah and not just being Ma'ahil (creating an Ohel) over it, since the presence of the Tum'ah is considered to be filling the whole space above the intervening object (as the Gemara says in Chulin 125b). The VILNA GA'ON (Parshas Chukas) says that even though non-Jews are Metamei only through Maga and not through Ohel, they can still be Metamei with Tum'ah Retzutzah (i.e. if a Jew touches a stone or object that is less than a Tefach above the non-Jew), because Retzutzah is like Maga.

10b

QUESTION: The Gemara says that Rav Ashi told his servant Minyamin to take down a wet cloak which Minyamin had spread out on top of the Sechach to dry. He told him to take it down after it became dry so that people would not think that the Sechach is valid while the cloak was on top of it. He did not insist that it be removed while it was wet, because while it was still wet everyone would know that it was put there to dry and not to serve as Sechach.

We see that if the cloak is wet, there is no reason to take it down. Why not? The cloak on top of the Sechach should be like a tree above a Sukah, where the branches (which are invalid Sechach) are Mevatel the valid Sechach beneath them! The Mishnah itself says that if one places a sheet on top of the Sukah to protect from the sun, the Sukah becomes Pasul for this reason. What is the difference between a sheet protecting from the sun and a cloak spread out to dry?

ANSWERS:

(a) RASHI (DH Lo Shna) seems to address this question. He says that when one spreads a sheet on top of the Sechach to protect from the sun, it is meant to shield what is under the sheet. Since its purpose is to shield or to protect, it is serving the same purpose as the Sechach, and therefore it can be Mevatel, disqualify, the valid Sechach (it does not become Batel, or secondary, to the Sechach, but rather it is Mevatel the Sechach). In this case, when the object was placed there just to dry, it will not disqualify the Sechach since its purpose is not the same as the purpose of Sechach -- it is not protecting anything beneath it. Therefore it will become Batel to the Sechach, just like a sheet which serves as decoration for the Sukah becomes Batel to the Sukah.

The RITVA says similarly that the cloak that is drying cannot be compared to the sheet that is shielding from the sun or from what falls from the Sechach, because the sheet that is shielding from the sun or the falling objects is something that is needed for the Sukah, and therefore it is not considered a temporary addition. Something that is put out to dry is not serving the Sukah and is considered a temporary addition and thus does not invalidate the Sechach. It becomes Batel to the Sechach even if it serves no decorative purpose.

(b) Other Rishonim do not differentiate between a protective covering that is under the Sechach and something that is spread out to dry on top of the Sechach. The only time something is Batel to the Sechach is when it is decorative, in which case it is serving the Sechach by beautifying it and thus it is Batel to the Sechach. Anything which does not serve the Sechach will not be Batel to the Sechach. (See, for example, Hagahos Oshri.) Why, then, did the wet cloak not invalidate the Sechach?

TOSFOS (10a, DH Pires) explains that if the Sukah has more shade than sunlight, then whatever one spread out on top of it will not make it Pasul, even though the object that was spread out on the Sechach itself makes more shade. In the Mishnah, the reason why the Sukah is Pasul when the sheet is placed on top of it is because the Sechach of the Sukah was letting in more sunlight than shade (TESHUVAS HA'GE'ONIM), or because the sheet itself served to make sure that the Sechach gave more shade than sunlight (by holding up the leaves that fell, or by protecting the Sechach from the sun so that it would not dry out -- RABEINU TAM). The Sechach of Rav Ashi's Sukah had more shade than sunlight, and thus there was no problem with a wet cloak on top of it. (See Insights to 9:1:b.)

(c) The BA'AL HA'ME'OR explains that when a Sukah had more shade *before* something else (invalid Sechach which let in more sunlight than shade) was placed on top of it, then it remains valid even if one adds invalid Sechach afterwards. Since he put the cloak up after the valid Sechach was up, it does not invalidate it, since it covered only a small part of the Sukah. In the Mishnah, the sheet that was placed atop the Sechach made more shade than sunlight, and Pasul Sechach which makes more shade always invalidates what is below it. (See Insights to 9:1:c.)

(d) The RITVA and RAN explain that Rav Ashi was not eating in the Sukah at the time, and therefore he did not care if something was on top of the Sukah invalidating it. The cloak certainly made the Sukah Pasul, but as long as he was not eating there, he did not need the Sukah to be valid. If so, what difference does it make if the cloak was wet or dry, if he did not need a valid Sukah? The answer is that if the cloak was wet, then everyone would know that no one will be eating in that Sukah, because the water from the cloak would drip on anyone below; since no one would be eating there, the people would not mistakenly think that it is a valid Sukah. If the cloak was dry, they would think that Rav Ashi was intending to eat in the Sukah, and they would assume that a cloak must be a valid form of Sechach. Therefore, Rav Ashi required the cloak to be removed once it dried.

HALACHAH: We have seen that there is a Machlokes Rishonim whether something put up to dry on top of a Sukah disqualifies the Sechach under it or not. Rashi says that it is like putting something up as a decoration, and it does not disqualify the Sechach. Other Rishonim say that it is like putting something up to protect the Sukah from the sun or to catch falling leaves, and it does disqualify the Sechach.

The RITVA writes that one should be Machmir and not sit underneath an object placed on top of the Sechach, even it was put up to dry or for another purpose unrelated to the Sukah. The TUR (end of OC 627 and 629),though, seems to cite contradictory opinions whether something put out to dry is like a decoration or is like something put up to protect from the sun or from falling leaves (see BI'UR HALACHAH, end of 627). The BI'UR HALACHAH (end of 629) writes that l'Halachah one should be Machmir and not place anything on the Sechach to dry out while eating in the Sukah.

We have also seen that the Rishonim argue over whether a Sukah (with more shade than sunlight) becomes invalidated if it is later covered with invalid Sechach or a sheet.

The SHULCHAN ARUCH (OC 626:1, 629:19) cites the opinion of Rabeinu Tam that a Sukah does not become Pasul if it has more shade than sunlight even if there is a tree, or other invalid Sechach, above it. He also cites the other opinion (Rashi etc., see Insights to 9:1:a) that such a Sukah does become Pasul. The Poskim are Machmir that one should not sit in such a Sukah when it is not a She'as ha'Dechak (see Mishnah Berurah 626:7, 629:58).