The Shulchan Aruch surprisingly refrains from addressing the now-common case of visitors to Israel on the second day of Yom Tov even though it clearly rules that even short term visitors from Israel are not allowed to do prohibited labors outside of Israel on that day.[1. Orach Chaim 496:3.] While this article will not address that question, it should be noted that there are several opinions on this matter. Historically, visitors to Israel have observed two days of Yom Tov based on the ruling of the significant majority of halachic authorities.[2. Avkas Rochel (no. 26); Pe’as HaShulchan (2:15); Sha’arei Teshuvah (496:2); Mishnah Berurah (496:13).] The premise of this article is that the visitor will be following that ruling (and not just observing one day like residents of Israel)[3. The Chacham Tzvi (no. 167) ruled that even the short term visitor to Israel should follow the local practice because this is not a matter of “minhag hamakom” (local custom). Rather, the nature of the obligation relates to where a person presently is, comparable to the observance of Purim on the 15th or 16th day of Adar. Following this opinion there is no question regarding Shemini Atzeres because the visitor should conduct himself like an Israeli for all matters pertaining to Yom Tov.] Following a general introduction to the issues, we will discuss practical direction based on the rulings of two leading authorities in Israel, the late Rav Shlomo Zalman Auerbach and Rav Ovadia Yosef shlit”a.
Rav Yosef Karo recorded in the 16th century that a separate minyan was formed on the second day of Yom Tov by the visitors from outside of Israel
Following this logic, it would seem simple that a visitor to Israel on Shemini Atzeres is prohibited to sit in the sukkah, since doing so would be a public contradiction of the conduct of community. However, for many hundreds of years this has not been the primary practice of visitors to Israel. While not addressing the use of a sukkah, Rav Yosef Karo recorded in the 16th century that a separate minyan was formed on the second day of Yom Tov by the visitors from outside of Israel.[7. Avkas Rochel (ibid), Pe’as HaShulchan (ibid).] Even though attending a minyan is a very public activity, there is no indication that the rabbis of the day found this practice objectionable. Rav Yosef Karo justified this conduct, explaining that assembling such a minyan was not a violation because the prohibition only applies when deviations may cause the local population so much confusion that they may come to violate halacha; holding a minyan on the second day of Yom Tov did not create such concerns. Accordingly, a good case can be made that a visitor in Israel may also sit in a sukkah, even though it is outdoors and a public act, since there is no reason to assume that it will cause an Israeli to violate halacha in any way (this is even more so for a visitor who will be among other visitors such as when staying in a hotel). [8. Perhaps this comparison might be rejected based on the explanation of the Rashba (Sukkah 47a) who explains that the reason no blessing is recited on the sukkah in chutz la’aretz on Shemini Atzeres is to prevent a desecration of Shemini Atzeres. In a similar vein, perhaps an unlearned Israeli who sees his friend eating in a sukkah on the 8th day (even without a blessing) might be confused and think that it is still Chol HaMoed and work is permitted since he is not accustomed to seeing such conduct. However, such a concern would seem to unfounded given that the overwhelming population is clearly observing Yom Tov and this is only being done by a small number of foreign visitors.]
Bal Tosif – The Prohibition to Add to the Mitzvos
Nonetheless, a major concern still remains. The Talmud clearly rules that one is forbidden to sit in a sukkah in Israel on Shemini Atzeres lest one violate Bal Tosif (the prohibition to add to the mitvos). However, that formal violation of adding to mitzvos only exists when one intends to actually fulfill the mitzvah, not if it was done for some other motivation such as uncertainty over the day. Nevertheless, in cases where a person appears to be violating Bal Tosif, the Sages prohibited the act out of concern that it give the wrong impression. Therefore, the Shulchan Aruch writes that even in a case where one has no other place to eat and needs to use a sukkah, it is necessary to first (prior to the onset of Yom Tov) remove a portion of the sechach to invalidate the sukkah so it will no longer appear as if one is observing the mitzvah.[9. OC 666.] That advice was given for the Israeli who may be short on space but it does not help the visitor observing an extra day of Sukkos. If the visitor follows that advice and removes the sechach to invalidate the sukkah, he no longer gains anything by eating his meals there.
The mitzvah of eating in a sukkah on Shemini Atzeres is significantly different than any other observance of the second day of Yom Tov
Rav Ovadia Yosef’s View
Struggling with this dilemma, Rav Ovadia Yosef[11. Responsa Yechaveh Da’as, vol 2, #76.] advises that the visitor from chutz la’aretz join with an Israeli family and eat with them in their home. He should only use the sukkah if he is eating by himself (or with other visitors, as in a hotel). In explaining why he advises eating with an Israeli family, Rav Ovadia puzzlingly writes that the guest should eat with them in the house so as not to unduly burden the hosts. While this certainly meets the highest standards of derech eretz (proper manners), on the surface this non-halachic logic appears out of place. However, on closer examination it seems that Rav Ovadia’s intent is to place our case squarely within the established halachic framework.
Regarding the question of working on Erev Pesach, the Shulchan Aruch[12. OC 468.] rules that one should conform to local practice to avoid causing discord. In contrast, the Shulchan Aruch‘s stated reason for prohibiting use of a sukkah on Shemini Atzeres in Israel[13. OC 666.] is that it would appear to add to the mitzvos, which implies that without this concern one should use a sukkah. To best integrate these two sources, Rav Ovadia advises creating a situation which increases the likelihood that the use of the sukkah would be contentious–the difficulty presented to hosts serving one meal to their family in the house and another to their guests in the Sukkah would be stressful and likely lead to discord. That real possibility of discord removes any question whether one must/may or may not use the sukkah because it is clearly inappropriate in that case. Only when the visitors are eating by themselves, such as in a rented house or with other visitors in a hotel, does he require the use of the sukkah.
Rav Shlomo Zalman Auerbach’s View
Taking a significantly different approach, Rav Shlomo Zalman Auerbach[14. Minchas Shlomo, vol 1 #19, section 1.] wrote that the mitzvah of eating in a sukkah on Shemini Atzeres is significantly different than any other observance of the second day of Yom Tov. He points out that the Sages never explicitly ruled that a visitor to Israel must eat in the sukkah on Shemini Atzeres. Such an obligation could only exist if they had decreed a fullblown day of Yom Tov like the second and eighth days of Pesach (on which one recites kiddush and refrains from donning tefillin). This is not the case with Shemini Atzeres, which is already a Yom Tov. Rather, the Sages merely imposed the Mitzvah of sukkah on the pre-existing holiday. Rav Shlomo Zalman argued that just as no blessing was imposed on this mitzvah to avoid diminishing the honor of the day, so too no obligation was ever created for visitors to Israel to observe this practice.[15. This idea is supported by the fact that many rishonim were concerned with the possibility that using a sukkah on Shemini Atzeres might still take on the appearance of Bal Tosif, a concern not generally seen in regard to the second day of Yom Tov.]
On further examination, this line of reasoning is far from simple or obvious because there is no other example with which to compare it. Additionally, the very comparison of this mitzvah to the second day of Yom Tov seems almost unfair, as Rav Auerbach has set the criteria of the recital of kiddush and the non-donning of tefillin as indicators of the serious and complete nature of the rabbinic enactment to observe the day. However, each of these already are features of Shemini Atzeres as part of a Yom Tov from the Torah. The fact that the Sages did not legislate these practices for this day should not be viewed as significant.
A more likely explanation is that even though Rav Auerbach wrote in technical halachic language, his primary intent was that the use of the sukkah on Shemini Atzeres is indeed most unique and unlike any other aspect of the second day of Yom Tov. Aside from the omission of the blessing, rishonim[16. Rashi (Sukkah 47a according to the interpretation of the Rosh), Tosfos, ad loc., sv. meisav.] debated whether its use must be recognizably not for the sake of the mitzvah, if one must or may not sleep in the sukkah on that night,[17. Ra’avya, Sukkah 47a.] if one should even eat in the sukkah at all that night,[18. Tur 668.] not to mention the general confusion that exists today so that many do not even know whether it is a mitzvah or merely a minhag. Given the weak nature of this mitzvah even outside of Israel where it clearly applies, he found it implausible that the Sages ever would have imposed this obligation on visitors to Israel, especially when combined with the issues of not adding on to the mitzvah and the creation of discord.
Following the ruling of Rav Shlomo Zalman Auerbach, there simply is no reason for visitors to Israel to use the sukkah on Shemini Atzeres, regardless of where or with whom one is eating and even if it is convenient and private.
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This essay is primarily adapted and translated from Responsa Sho’el B’Shlomo, #37.
It’s interesting that the essay focuses on two eretz-yisroel poskim in trying to determine the proper practice for a ben chutz la’aretz. Also, how does the author propose to be machria between Rav Ovadia, who says that in private one should eat in a sukkah, and Rav Auerbach, who says that one shouldn’t?
Reb Yid: For what it’s worth, R. Shlomo Wahrman quotes R. Eliezer Silver (an American posek) as ruling similarly. It’s in Oros Chag HaSukkos, no. 53 available online here: http://www.hebrewbooks.org/pdfpager.aspx?req=51881&st=&pgnum=240
I think the view of the Chacham Tzvi is important to this discussion. we can wonder whether R’ Ovadia and R’ SZ Auerbach would still reach the same conclusion without taking onto account the position of the Chacham Tzvi that a ben chutz laaretz follows the minhag of Eretz Yisrael on Yom Tov Sheni in all regards. (From careful readings of their teshuvot) RSZ Auerbach – probably not, RO Yosef – probably so.
In any event, incorporating the Chacham Tzvi into the discussion is an important part of both of their calculus.
There can be no question that both Rav Ovadia Yosef and Rav Shlomo Zalman Auerbach were familiar with the Chacham Tzvi’s position. While some may accept it regarding Yom Tov Sheini, they both did not. Rav Shlomo Zalman even quoted the Chacham Tzvi and wrote that this opinion is contrary to the practice dating back to the Geonim. There is no reason to believe they would have changed their mind today, especially since it is less than a generation since Rav Shlomo Zalman passed away and Rav Ovadia is still alive today.
“Alternatively, he could simply pray at home, thereby avoiding any question of observing differently than those around him”
It would be interesting to consider how the “chiyuv” (or close to it) of tfila btzibbur is outweighed by the possibility that someone might notice that he is reciting Yom Tov prayers.