Sukkah 10-11b
The equivalent of the OU kashrut certification in England is the certification of the London Beit Din. There is also a competing kashrut certification called “Kedassia.” Those who eat Kedassia do not eat Beit Din. My father, being one of the principal dayanim on the bench of the London Beit Din, who had invested much of his working life on matters of kashrut, ate Beit Din. His good friend ate only Kedassia. My father didn’t like that. One Erev Sukkot, shortly before Yom Tov, the friend invited my father to admire the sukkah he had built with much care and enthusiasm. “Beautiful,” remarked my father, “but unusable.” “Look up,” he said, “you have built your sukkah under the branches of an oak tree. But, never mind,” said my father, “come and eat in our sukkah. We do, of course, only eat Beit Din.”
The sukkah, which means “shade,” must be originally built for the purpose of providing shade and must be outside under the open sky. There can be nothing interceding between the sukkah and the sky. Accordingly, the sukkah cannot be built in a house or under a tree that already provides shade and which, therefore, render the sukkah redundant.
But why couldn’t my father’s friend’s sukkah be fixed by cutting away the overhanging branches? The answer is that the sukkah must be valid when originally constructed. It cannot originally be built invalid and then corrected and made valid. Thus, for example, a sukkah fashioned by hollowing out an existing haystack is invalid. This disqualification is known as “ta’aseh velo min haasui,” which means you must create a valid sukkah and not fix an invalid one.
This principle is derived from the verse “Chag haSukkot ta’aseh lecha,” “the festival of Sukkot you shall make for yourself.” The principle of ta’aseh velo min haasui is derived from the fact that the word “sukkot” precedes the word “make.”
The only way to save my father’s friend’s sukkah would have been to cut away the overhanging oak tree branches and then pick up each piece of the existing s’chach and lay it down again on the roof of the sukkah. That way, by laying the s’chach again, the sukkah would be kosher at inception—because it is the laying of the s’chach that is the essence of the sukkah. But being shortly before Yom Tov, there was no time. Another remedy would be to bend the branches of the tree over so that they merge with the existing kosher s’chach already on the roof of the sukkah. Based on the halachic rule of bitul b’rov, the majority nullifies the minority, as long as the kosher s’chach outnumbers the invalid tree branches the sukkah is kosher.
In the same way as one may save the sukkah by cutting down the branches and laying the s’chach again, one could also remove roof tiles from a roof and sit under the wooden beams. The very act of removing the roof tiles is considered a sufficient act of “ta’aseh” and renders the remaining construction a valid sukkah. Because of the principle of ta’aseh velo min haasui, a rain roof on a sukkah should be open when the s’chach is laid down and the s’chach should not be inserted from the inside with the roof closed.
Other examples of ta’aseh velo min haasui are tzitzit and mezuzah. From the order of the words “gedilim ta’aseh lecha—make yourself fringes on the four corners of your garments,” the rabbis derive that four separate fringes must be inserted into the garment and then doubled over into eight, which must then be tied and knotted in the prescribed way. One cannot, however, insert one long string, double it over twice, tie and knot it and then snip the ends to make eight. Similarly, one may not fix a mezuzah onto a detached door post and then build the door post with the mezuzah on it into the house.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, zt’’l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” available for purchase by emailing Raphael at [email protected].
