by R. Gidon Rothstein
3 Elul: R. Uzziel on Sukkah Constructions and Obstructions
Building a sukkah requires open space, which can sometimes be at a premium. Shu”t Mishpetei Uzziel 3; Orach Chayyim 78, dated 3 Elul 5702 (1942) has R. Uzziel responding to a rabbi who was checking whether he had ruled correctly about a sukkah with certain problems.
One wall of this sukkah was nine tefachim [there are various views about how long a tefach is, but it’s about three to four inches] high and two wide, and a balcony jut out two tefachim over the opposite wall. That leaves only six tefachim between these walls [the minimum size of a sukkah is seven by seven, about two feet by two feet]. The length is twice that width [so that it’s more than forty-nine square tefachim, but it’s not seven by seven].
R. Abohav’s Permission
The man who brought this issue to R. Uzziel wondered whether a wall inside this sukkah would take away from the space (since it’s solid, so that space isn’t usable); whether the balcony constitutes invalid sechach that makes the entire structure unworkable as a sukkah; and, finally, if the total area can make up for the width’s being less than seven tefachim.
He cited [as we’ve seen other times, questioners often bring their own reasoning, rather than just asking the question] R. Shmuel Abohav [1610-1694, a rabbi in Venice, one of the leading rabbis of Italy at the time], who reported that custom allowed counting the top of a wall of a sukkah towards its internal space if that top of the sukkah (or even an outcropping outside the window of a sukkah that was used as a table or a buffet) was strong enough to use in some way. R. Abohav himself was not sure this should be allowed, but did not prohibit it.
R. Uzziel isn’t sure how R. Abohav’s opinion translates to this case. When R. Abohav said he was unsure, he pointed to a Gemara that says that a hole or pit can only effectively increase the height of a sukkah to the minimum ten tefachim if that hole is within three tefachim of the walls (so it can combine with those walls to create a height of ten; the concept of lavud tells us that we can ignore a space of less than three tefachim for many issues in halachah, so it’s as if the hole is right under the wall, creating a height of ten).
However, Ran held that that dug-out area must itself be seven by seven, a valid minimal size of a sukkah with a height of ten. R. Abohav extrapolated that that means a wall in the sukkah counts against its space, since the inhabitant cannot move that space around or make use of it (he can use the top of the wall, but not all the space of the wall). He also worried this might lead people to think they could cut into walls (such as if the wall was two tefachim thick, but only one tefach was needed for the minimal sukkah) to make up a seven by seven space.
Usable Space Within the Sukkah
Ran mentioned a dirah seruchah, a space so tight that it does not qualify as a reasonable living space (that’s the Gemara’s reason for why ten is the minimum height). Once we see Ran and Rosh accept that (which originated with Beit Shammai, but they apparently assume Beit Hillel agreed), a space less than seven by seven is similarly problematic.
A wall within the sukkah is also a dirah seruchah issue, since it impinges on the living space of the inhabitant [unless, of course, there’s plenty of space other than that wall]. The questioner seemed to think a permanent wall would be better (since it’s just part of the landscape, I think), but R. Uzziel said it would be worse, because it more fully blocks the interior space from being used. Nor had R. Abohav permitted it, he had noted such a custom, and registered his hesitations.
Sukkah 10b has R. Ashi say that decorations on the side walls (those hanging down from the top are a different issue) count against the internal space, presumably because they make it unusable. Rambam and Shulchan Aruch codify that (Orach Chayyim 634;13), which would seem to mean that we hold that space made unusable cannot count as part of the minimal seven by seven.
It’s a sugya R. Abohav ignored, which leads R. Uzziel to suggest that that’s because it’s not actually relevant to our case, since in that case the wall was taller than the bare ten, leaving usable space above or below those decorations. Besides, not every object inside asukkah counts against its usable space—one may have a table in a minimal sukkah, for example, so perhaps we could count this wall as a sort of table, since it’s steady enough to use as a countertop. Once we say that, and there’s space seven by seven above it (so that the structure of the sukkah in fact has seven by seven), R. Uzziel agrees it does not count against the minimal shiur.
The other issue was the balcony, which looks like that part of the sukkah is invalid, since it’s built under a house or other obstruction. When there’s invalid sechach on the side of a sukkah, we apply the idea of dofen akumah, which allows us to halachically visualize the wall of the sukkah as bending from the ground to the valid sechach, bypassing the problematic areas. We cannot do that here, the rabbi had pointed out, because then the sukkah will no longer have the requisite minimal internal space, and Sukkah 7b says we only use the concept of dofen akumah where there’s enough space afterwards for a valid sukkah.
R. Uzziel agrees that that cannot be the solution, but points out a simpler one. Invalid sechach is only a problem when there’s more than three tefachim of it (another example of our halachic right to ignore spaces of less than three). In fact, Orach Chayyim 632;1 says that if the invalid sechach is less than three, a Jew could even sleep under it, and it can count as part of the minimal space of a sukkah. Anything less than three is not only not a problem, it becomes nullified, batel to the larger area, and counts as part of that larger area.
The Balcony as a Whole
The final substantive issue R. Uzziel takes up (he says he’s found sufficient reason to permit this sukkah that he doesn’t need to deal with other issues, such as whether forty-nine square tefachim is good enough even where some of the sides are less than seven) is the part of the balcony that’s not over the sukkah. Halachah says that when a piece of invalid sechach covers a sukkah, the entirety of that sechach is a problem, even that part of it that doesn’t cover the sukkah. If so, the part of the balcony that’s not over the sukkah should also create a problem.
An example is on Sukkah 14b, where a plank of wood four tefachim wide [which is Rabbinically invalid as sechach, because it looks too much like an ordinary roof] is placed on a sukkah, but less than three tefachim of it covers the sukkah itself. The Gemara says that we have to count what’s outside the sukkah as well.
R. Uzziel differentiates that from this case in two ways. First, the plank in that case was placed on the fourth, open, side of the sukkah; it was because there was no clear barrier between what is covering the sukkah and what isn’t (since that side has no wall), that it counted.
More significantly, in that case the invalid material was meant as sechach. Here, the sukkah itself had sechach, just that the balcony was covering it. But the balcony was never intended to be part of the sukkah.
Sum total, R. Uzziel found room to accept this sukkah and commended the rabbi for finding his way to a correct ruling. It is an example of rabbis working to help Jews in need, and a reminder of what need can look like, where people are so stuck for a sukkah this is their only option.
Listen to Rabbi Rothstein discuss this on OU Torah.