Shulchan Aruch: Chapter 626 - Laws Relating to Construction of a Sukkah under a Tree or under a Roof

SECTION 626 Laws Relating to the Construction of a Sukkah under a Tree or under a Roof. (1–21)

1 One can fulfill his obligation [to dwell in a sukkah] only with a sukkah that is made for the purpose of shade alone,1 like the Clouds of Glory.2 If, however, it is also made with the intent of serving as a dwelling, i.e., to enable one to live there in a permanent manner and not only to take shelter in its shade, or if it is also intended for private use, such as for a storehouse, or for another function that requires a secluded place, or if it was also made “as a protective haven from downpours of rain,”3 [it is not halachically acceptable].

Any structure that was not made for shade alone is not deemed a sukkah but a house. A house is designated for all of these purposes, but the Torah specified a sukkah, not a house.

2 A sukkah must be under the open sky, as were the Clouds of Glory. If a sukkah was constructed within a house it is invalid,4 because [its] shade serves no purpose; even without the s’chach,5 there is shade because of the roof of the house.

The same law applies if a sukkah is made under a tree,⁴ or under any other materials that are unacceptable as s’chach, as explained in sec. 631.6 [This restriction applies] whether the sukkah existed before it was covered by the material whose shade is halachically unacceptable, or whether that invalid [covering] was present before the sukkah was constructed. In either case [the sukkah is invalid] because the shade brought about by the sukkah now serves no purpose, for the shade brought about by the other material is above it.

3 Such a sukkah is therefore invalid, even if the shadow that [its s’chach7] casts [on the floor] exceeds the sunlit area,8 without including at all the shade from the higher, [invalid] covering; i.e., even if the shadow cast by the higher covering were removed, the shadow cast by [the sukkah] would exceed its sunlit area.

[Moreover,] even if the shade from the higher, [invalid] covering alone is so limited that if the shade from the lower [covering] — i.e., the s’chach of the sukkah — was removed, the [floor] area remaining open to the sunlight admitted by the higher [covering] would exceed its shaded area, the sukkah is nevertheless invalid. [The rationale is that] the shade from the higher, invalid [covering] nullifies the shade produced by the s’chach directly beneath it; [that s’chach] serves no purpose, since the higher, invalid [covering] produces shade over the same place over which [the s’chach] produces shade. [See fig. 1.] We therefore consider the shade [on the floor] caused by the valid s’chach as if it were reduced to the same extent as the area [of s’chach] that is shaded by the higher, [invalid] covering. Hence this is as if the [latter] area [of s’chach], which is shaded by the higher, [invalid] covering, was [open to the sky, and the corresponding floor area was] sunlit. The sunlit area of the sukkah [may] thus exceed its shaded part [thus invalidating the sukkah].9

4 If, however, the shade produced by [the s’chach of] the sukkah is so extensive that even if an area [of s’chach] equivalent to the part shaded by the higher, [invalid covering] were to be removed and the remaining area were open to sunlight, the shaded part of the sukkah would nevertheless exceed its sunlit area, the sukkah is valid. [See fig. 2.]

5 The above applies when the material that is invalid as s’chach was positioned above the valid s’chach. [Different rules apply] if [the two] were intermingled; for example, if there was a tree that cast a shadow over a sukkah, and one lowered its branches and mixed them together [with the acceptable s’chach. See p. 252, fig. 3.]

If there is much more10 of the valid s’chach than of the material that is invalid for s’chach, the invalid material becomes batel — insignificant and [therefore] nullified — vis-à-vis the majority [of the valid s’chach]. Moreover, even if the valid s’chach is placed upon the material that is invalid as s’chach, it is considered as intermingled and is nullified vis-à-vis the majority [of the valid s’chach].11

[In this instance,] the material that is invalid as s’chach is distinct from the valid [s’chach]; it is not completely intermingled, and could be removed. Nevertheless, it is nullified. [This represents an exception to the accepted pattern.] With regard to all the prohibitions of the Torah, [we follow the principle that] if the forbidden substance is recognizable and can be removed from the mixture, it does not become nullified, even if there is 1000 times more of the permitted substance.12 [In the case of food, for example,] such a mixture may not be eaten, lest one encounter the actual forbidden substance whose existence was not nullified, because it could have been removed. In this instance, however, [that principle is not followed]. For no benefit is gained from the forbidden material; even if the substance that is invalid as s’chach were to be removed from the sukkah, there would be enough valid s’chach for the shade of the sukkah to exceed its sunlit area. We must nullify the invalid material vis-à-vis the large amount [of the valid s’chach] only so that [the invalid material] will not disqualify the valid s’chach with which it is combined.

6 However, if so little shade is produced by valid [s’chach] that when the shade produced by the [intermingled] invalid material is removed from the sukkah, the shade [on the floor] will not exceed the sunlit area, [the sukkah] is invalid. [See fig. 4.] For the shade produced by the invalid material cannot be combined with the shade produced by valid [s’chach] to complete its minimum measure. The rationale [for this stringency] is that [the invalid material] has not yet been entirely nullified, for it could be removed.

7 All of the above applies when the invalid material that is intermingled with the valid s’chach is so flimsy and insubstantial that the sunlit area [in the sukkah] exceeds the shaded area.13 If, however, [the invalid material] causes the shade to exceed the sunlit area, its nullification vis-à-vis the greater quantity [of valid s’chach] is not effective in preventing its shade from disqualifying the sukkah. For the valid s’chach serves no function in the place where the invalid material would provide shade [even] if [the valid s’chach] were not mixed with it, for the shade [produced by the invalid material] exceeds the sunlit area [of the sukkah. See fig. 5.]

Such a sukkah is therefore acceptable only if it has so much valid s’chach that if we would remove [from it] an amount that is equivalent to the invalid material that is intermingled with it, the shaded area within the sukkah would still exceed its sunlit area.14 [See fig. 6.]

8 When does the above apply? When the valid s’chach and the invalid material are intermingled, or when the invalid material is positioned below the valid s’chach. [In such an instance,] the valid s’chach must exceed the invalid material so that [the latter] will be [outweighed and hence] nullified and [thus] will not disqualify the sukkah by its shade.

If, however, both [the valid s’chach and the invalid material] were placed on the sukkah separately, one next to the other, without being mixed together at all, there is no need that the valid s’chach exceed the invalid material. Even if they are equal in amount the sukkah is valid, for, as explained in sec. 631[:10], this is a halachah transmitted to Moshe at Sinai.15

9 (16Some authorities differ with this entire approach. They maintain that if the invalid material is intermingled with valid s’chach and they are both of the same type, and thus the invalid material is not at all distinct, [there is room for leniency]. For example: one built a sukkah under a tree, bent down [its] branches, and lowered them [so that he could] mix them together with the detached s’chach on top of the sukkah. Although it is possible for him to remove the prohibited material by raising the branches up to the trunk of the tree, as long as they are mixed together [with the valid s’chach] and are not distinct, they are nullified vis-à-vis the majority [of valid s’chach. Moreover,] they may be combined together with it to fill the [required] measure, [so that] the shade [within the sukkah] will exceed the sunlit area.17 (This differs from the first opinion.)18

[In this situation,] the invalid material that is mixed [with the valid s’chach] must be so flimsy and insubstantial that the sunlit area [within the sukkah] exceeds its shade. If, however, the shade [from the invalid material] exceeds the sunlit area [within the sukkah], it cannot be combined [as part of the valid s’chach] and be counted towards the measure that is required to make the shade [within the sukkah] exceed its sunlit area.19

Nevertheless, if the shade [within] the sukkah exceeds its sunlit area without counting the shade cast by the invalid material, [the sukkah] is never disqualified by the invalid material, even though [its quantity alone would suffice to make] the shade exceed the sunlit area.20

10 [These authorities also differ] when the invalid material is not intermingled with the valid s’chach, but is positioned overhead and casts its shadow over [it]. If the shade [within] the sukkah does not exceed its sunlit area without counting the shade [from] the invalid material — even when the sunlit area [within the sukkah] exceeds its shade if the invalid material alone is [considered] — the sukkah is invalid.21 [The rationale is that it is] the invalid material that completes the [required] measure [of shade].

If, however, the shade [from the valid s’chach] exceeds the sunlit area without the addition of the shade from the invalid material, [the sukkah] is valid.22 [This applies] even when the shade from the invalid material exceeds the sunlit area [within the sukkah].

Primacy should be given to the first opinion with regard to all of the above. Nevertheless, in a pressing situation in which one does not have another sukkah and he cannot correct such a sukkah and make it valid, he may rely on the latter opinion23 so that he will not negate [the observance of] the mitzvah of sukkah.24

11 If one desires to cut off [the branches of] a tree [that had been placed on a sukkah] to make them valid for s’chach, as will be explained in sec. 629[:20], he must move all [the branches of] the tree. Note the rationale explained there.25

12 It is permitted to make a sukkah in a house below a roof from which the shingles were removed so that a sukkah be made there, even if the wood or the beams on which the shingles rest remain. [It would appear that] the wood and the beams are not valid as s’chach, since they were affixed in the roof to support the shingles and not for the purpose of shade alone. Nevertheless, one may sit under the wood or the beams themselves. [The rationale is that] since one performed an action and removed the shingles with the intent of making a sukkah for shade, it is considered as if he performed an action with regard to the wood or the beams themselves and prepared them for the sake of the sukkah. And they are acceptable for use as s’chach, for they are products of the earth and are not susceptible to ritual impurity. The fact that they are attached26 is not significant. For an entity that was detached and then attached [to the ground] is acceptable for [the s’chach of] a sukkah, as explained in sec. 629.27

The act [of removing the shingles] makes [the remaining beams or supports of wood] themselves valid as s’chach. [Additional] valid s’chach could therefore be placed upon them and they may be counted together with [it] to make up the quantity required to make the shade [within the sukkah] exceed its sunlit area. Therefore even when — as in the present instance — the s’chach was not placed upon them, but under them, in the house, one may sit directly under them, for they are valid s’chach.

13 [Different rules apply,] however, if one did not remove the shingles for the sake of making a sukkah there, but the structure was initially built [with beams, though] without a roof. Since [in such a case] no action was taken with [the beams of] the roof for the sake of making a sukkah for shade, the wood or the beams are invalid as s’chach, and hence are governed by the laws that apply when invalid material covers valid s’chach, as explained [above].28 (I.e., whenever the valid s’chach is not so ample that if one removed an amount equivalent to the invalid material that casts a shadow over it, the shade [within the sukkah] would [still] exceed its sunlit area, [the sukkah] is invalid.)

14 When does the above apply? When the s’chach was placed below [the exposed frame of] the roof. If, however, the s’chach was placed upon the wood or the beams, then even if there was less than three handbreadths’ space between [the beams], [the sukkah] is valid.

We do not apply the principle of lavud29 and regard all the pieces of wood as joined, and thus they would be considered as one piece of wood that was invalid as s’chach and wider than four handbreadths, and hence would disqualify the sukkah, as will be explained in sec. 632.30 The reason [we do not follow this principle] is that the valid s’chach that is placed between one piece of wood and another disrupts their [halachic] continuity. The principle of lavud can apply only when nothing interposes between the neighboring entities.

15 [The question of] whether [or not] it is permissible to sit under the wood is explained in sec. 631.31

16 [One halachic principle applies in both of the following situations. A person first] placed material that is invalid as s’chach on a sukkah that had no s’chach. He then placed valid s’chach above the invalid material. Finally, he removed the invalid material, leaving only the upper, valid s’chach casting shade on the [floor of the] sukkah. Similarly, a person built the walls of the sukkah below the roof of his house, placed valid s’chach above the roof, and then removed the roof that was under the s’chach. [In both instances, the sukkah] is invalid, because at the time he made the sukkah — i.e., at the time he put the valid s’chach in place, which is the essence of [making] the sukkah — the sukkah was invalid because of the invalid material that covered it [directly]. Afterwards, when he removed this invalid material, he did not perform an act involving the sukkah itself32 to make it acceptable; it was validated [so to speak] as a matter of course, by the removal of the invalid material.

The Torah, however, states,33 “Make the Sukkos festival for yourself.” [Implied is that the sukkah must be made.] We may not [use] something which is already made, [but which later became suitable] as a matter of course34 — for the initial act of making, which was invalid, is not considered “making” at all.35

17 When does the above apply? When the disqualifying factor was inherent in the sukkah; for example, in the instance above when valid s’chach was placed over invalid material. In this instance, the sukkah itself — i.e., [what should have been] the valid s’chach — was made in an inherently invalid manner. It could not be called s’chach at all, because some other entity interposed between it and the walls, and [thus] the shade it produces is of no consequence whatever.36

If, however, [the s’chach] is disqualified by an external factor — e.g., one constructed his sukkah under the roof of a house and, after placing s’chach upon it as required by law, removed the roof [of the house] that was above the sukkah — it is valid, even though no action was taken with [the s’chach] itself to make it valid. [The rationale is that] it was disqualified only by an external factor, namely, the roof of the house that cast shade over it; it is not inherently invalid. [On the contrary, the sukkah] was covered as required by law, with valid s’chach placed over its walls. Hence, [the sukkah] becomes valid when this was brought about by a validating action taken with the disqualifying factor; i.e., one removed the wooden pieces of the roof that had been affixed there to create a dwelling and not to generate shade, and hence had been deemed invalid as s’chach. When, however, they have been entirely removed from there, [the s’chach of the sukkah]37 — so, too, even the remaining beams — is now also considered as valid s’chach, as explained [in subsection 12] above. The action is effective in rendering the sukkah valid, because it had been disqualified only by the roof, and something was [since] done to [the roof] to rectify that factor.

18 [Different rules apply] if one did not perform an action to validate the sukkah [by changing] the disqualifying factor itself; e.g., he did not remove the roof entirely from the place where it was fixed, but [placed it on hinges, so that] it served as a door, to be opened and closed during the rain.

In such a situation, since the roof was not removed entirely, the above action is not sufficient to validate the remaining [supporting] beams and the [s’chach] which was disqualified because of it ([and which was already in place] when the hinged roof38 was not yet opened, but overhung the sukkah).

19 When is [the sukkah disqualified] because of this? When the s’chach was placed on the sukkah before he made an opening for the hinged cover³⁸ in the roof — or even after [that opening] was made, except that when the s’chach was put in place, the hinged cover³⁸ was closed and overhung the sukkah. Since the sukkah was constructed [i.e., since the s’chach was put in place] invalidly, the fact that the hinged cover was later opened is not sufficient to render it valid, for no action was taken [to change] the sukkah itself.

If, however, at the time one covered the sukkah with s’chach, the hinged roof was open as required by law and did not overhang it, [the sukkah is valid]. Even if it is later closed, and thus the sukkah was disqualified while the hinged roof was closed, the sukkah becomes valid again when the hinged roof is opened. For the sukkah was initially made [i.e., the s’chach was put in place] validly, since the door was then open.39

20 If this [retractable roof]³⁸ has hinges that enable it to be opened and closed, it completely fits the halachic definition of an entrance and may be closed and opened on Shabbos and the festivals. [Doing so] does not involve the forbidden [labors] of demolishing or building.40

21 When [the hinged roof] is closed, one must be careful not to sit under it with the intent of fulfilling the mitzvah of the sukkah, for at that time the sukkah is not valid and one does not fulfill his obligation by dwelling in it.