May One Take Down a Sukkah on Chol HaMoed in Anticipation of Hurricane Joaquin?

Question:

לגרסה העברית לחצו כאן /Read this teshuva in Hebrew 

Hurricane Joaquin is expected to hit the East Coast on Monday (Shmini Atzeret), and I am concerned that the sukkah will be destroyed and ruined. I am also worried that the schach will fly off and hit someone or become debris on the road or sidewalk. I have a couple of questions: (a) Can I take it down on Hoshana Rabbah? (b) Can I take it down already on Friday if I am invited out for our Shabbat meals and will be able to eat those meals in a sukkah? (c) I also normally eat in a sukkah on Shmini Atzeret. If I do take it down, and the hurricane does not hit and the weather would allow for eating in a sukkah, can I eat indoors if there are no sukkot available for us to eat in? (d) Also, are there any special guidelines for dealing with the schach and walls after we have taken them down?

Answer:

First and foremost it should be clear that if we are talking about a Category 4 or 5 hurricane, and possibly even a Category 3, there is a definite concern that by not taking down the sukkah people may get hurt, and there may well be a concern of pikuach nefesh as well. A direct hit by such a hurricane would blow the sukkah to pieces and could likely send the wood into people and through people’s windows, shattering glass and causing injury or worse. When such a hurricane is expected, there is no question that one is obligated to take down the sukkah beforehand. If one did not, then even on Shabbat or Yom Tov, once there is a real threat, or if there is concern that there won’t be time to dismantle it when the threat is more clear and imminent, the sukkah should be taken down immediately. For those that would hesitate to do such, it should be noted that at most we are dealing with a rabbinic prohibition since this is dismantling without the intent to rebuild in the same place – סתירה שלא על מנת לבנות ובמקומ (see Shabbat 31b, Rambam Shabbat 10:15, and Arukh HaShulkhan OH 313:6 and 314:5). When it comes to any risk to public safety, even one significantly more minor than this, such as a sharp object or ember left in the middle of the street, the halakha is that rabbinic prohibitions (such as muktzeh, carrying in a carmilit, and even מלאכה שאין צריך לגופה) may and must be overridden (Shabbat 42a and Shulkhan Arukh Orah Hayyim 308:18 and 334:27). One should, however, do everything possible to make sure that it is taken down before Shabbat or Yom Tov.

For the purposes of this teshuva, we will assume that a direct hit from such a hurricane is not a concern, but that nevertheless, there is a concern of damage to the sukkah or possible injury. Could the sukkah be taken down ahead of time in such a case?

The question of taking down a sukkah on Chol HaMoed has already been dealt with by a number of poskim. It seems to first have been raised by Rav Tourney in Ikrei HaDaat (OC 2:68), who gives arguments both to forbid and permit taking down a sukkah on Chol HaMoed. There are even poskim who go so far to forbid removing schach from one sukkah to be used in another sukkah (Shoel u’Mayshiv, fourth ma’hadurah, 3:28 forbids, while Tzitz Eliezer (13:68) permits).

An excellent and clearly written teshuva on this topic can be found in Li’horot Natan, 7:47-49, written by Rabbi Natan Geshtenter (1932-2010, Bnei Brak), who concludes that it is permissible, even without a strong justifying reason. His arguments are persuasive and compelling, and I believe that his position is the correct one to be followed (Tzitz Eliezer has many of the same arguments and seems inclined to allow dismantling a sukkah, and not just using its schach for another sukkah, but he does not give a final ruling in this regard).

My analysis and conclusions are as follows:

Negating the Function of a Mitzvah Object (Huktza LiMitzvato)

1. Some have argued that the principle of huktza li’mitzvato, that an object set aside for its mitzvah use is forbidden, would prohibit the taking down of the sukkah. This principle is based on two sugyot. The first sugya is in Gemara Sukkah (9a) and states that the schach (and possibly the walls) are מנין לעצי סוכה שאסורין כל שבעה… – כשם שחל שם שמים על החגיגה כך חל :considered sanctified during Sukkot  הסוכה על שם שמים. The second sugya appears in a number of Gemarot (Sukkah 10a, Shabbat 22a and 45a, and Beitzah 30b) and states that the סוכה נוי are forbidden based on the principle of הוקצה למצותו– סיככה .כהלכתה ועיטרה בקרמים ובסדינין המצויירין… אסור להסתפק מהן עד מוצאי יום טוב האחרון  (See Tosafot, Sukkah 9a ד”ה מנין , Beitzah 30b ד”ה אבל and Shabbat 22a ד”ה סוכה and the other Rishonim regarding the regarding the differences between the two concepts of sanctity and הוקצה למצותו).

Starting from the Gemara, and through the Rishonim and poskim, all the sources make it clear that this restriction means that someone cannot take the schach, etc., away from the mitzah for the purpose of using / benefitting from it. This is based on the comparison to the קרבן חגיגה, which is אסור בהנאה (Sukkah 9a, and Rashi ד”ה אסור להריח). Thus, Rambam (Sukkah 6:15) states only:

 אין ניאותין מהן לדבר אחר כל שמונת הימים

and similarly Shulkhan Arukh, OH (638:1):

עצי סוכה אסורים כל שמונת ימי החג… ואין ניאותין מהן לדבר אחר כל שמונת הימים.

The second source that is relevant to this discussion is the Mishna (Sukkah 48a) which states that one should not take down the sukkah on Hoshana Rabbah. Rashi explains that this is because he may need it later in the day. It is clear according to him that there is no fundamental problem in taking it down, and if one has a place to eat if necessary, there should be no problem in dismantling a sukkah. It also is possible according to Rashi that the statement in the mishna is more of a concern than an actual restriction. This is actually stated explicitly by Rav Perla in his commentary on the Sefer HaMitzvot li’Rav Sadya Gaon’s Sefer:

(ד”ה ואמנם נראה דמקור דין) ד”ה ואמנם נראה דמקור דיןולכאורה לפי זה מתניתין רק עצה טובה קמ”ל שלא יסתור סוכתו משום שמא יצטרך עוד לאכול או לישן או לשנות. דכל זה אסור חוץ לסוכה. אבל אם ברור אצלו שלא יצטרך .לשום אחת מאלה עוד היום. ודאי רשאי לסתור סוכתו

Rashi’s explanation is quoted in Orah Hayim 666 by Tur, Beit Yosef, Levush, Arukh HaShulkhan and Mishne Brurah as the basis for the ruling (or advice) that a person should not take down the sukkah on Hoshana Rabbah.

However, it should be noted that the Ran on Rif explains that the reason for this restriction is a more fundamental concern – that it would define the sukkah to not be made for 7 days. In addition, Rabbenu Yehonatan on Rif gives as one possible explanation for the restriction that to take down the sukkah would be ביזוי מצוה. According to these reasons, it should not be allowed to dismantle a sukkah any earlier than absolutely necessary. Nevertheless, their positions are not quoted in the Achronim, and certainly not in the teshuvot. A quick search of Bar Ilan reveals that the Ran’s position is only quoted by Chesek Chemed in his commentary on Sukkah (48a), Rav Perla in his commentary on Rav Sadya Gaon (ibid., where he actually goes so far to say that to take down the sukkah early according to Ran would be a violation of בל תגרע!), and the Tzitz Eliezer who rejects it.

Moreover, one could argue that even according to Ran, if a hurricane is expected to tear down the sukkah, it already is not a structure that will stand for all seven days (what degree of likelihood for the hurricane to hit would be needed for this is not clear). Similarly, Cheshek Chemed (ibid.) argues that according to Ran it may be permitted to take down a sukkah when it is raining, since at that stage it is no longer a sukkah. Regarding Rabbenu Yehonatan, it seems obvious that if one is taking down the sukkah to protect it from being destroyed (among other reasons), this would be כבוד המצוה  and not ביזוי מצוה.

Regardless, li’halakha we follow Rashi’s explanation, from which it clearly follows that there is no fundamental problem to take down a sukkah on Chol HaMoed.

The only other relevant source to argue that it should be forbidden is the ruling (OH 15) that you cannot remove tzitzit from a garment unless it is to put them on another garment, because you are leaving a garment that requires tzitzit without its necessary tzitzit. One is not prohibited to discard the garment, or cut it up. Thus, Mishne Brurah OH 15. no. 3 (based on Magen Avraham, no. 2), states regarding the prohibition to remove the tzitzit:

כי יש איסור שמבזה טלית של מצוה בחנם אם לא שנתבלה הטלית אז מותר להתיר ציציותיו בכל גווני או שרוצה למכרו לנכרי או לעשות מהטלית בגד שלא יהיה ד’ כנפות מותר ליטלן

Add to all this that if the problem of removing the tzitzit is ביזוי  מצוה (See Shabbat 22a, where it also seems that this might be the basis for הוקצה למצוותו and Mishne Brurah, above), here you are doing it to protect the sukkah so, as argued above, it would be כבוד המצוה and not ביזוי  מצוה .

Conclusion:

One can take down a sukkah on Chol HaMoed, and need not worry about הוקצה למצוותו. This can be done, in principle, even with no, or very little, justifying reason, assuming someone has a sukkah available in which to eat the remainder of the meals. Thus, the sukkah can be taken down even before Shabbat, even while the forecast regarding the hurricane is still not clear, if one has a sukkah to eat in for Shabbat.

[Even for those who would want – under normal circumstances – to take into account the strict rulings of Shoel uMayshiv and others, in this case there is no reason to be strict. In addition to the concern of monetary loss, we are dealing here with an issue of public safety. Given this concern, not only would those who might normally be strict be allowed to be lenient here, but they would be obligated to do so. We cannot allow chumrot regarding הוקצה למצוותו to come at the expense of the safety of others.]

2. It is less clear if one can remove the decorations to protect them from the rain while leaving the sukkah up, and without intending to use them for another purpose. Given that the sukkah is still standing, this would more be like removing the tzitzit from a garment that still needs tzitzit. Rema (OH 638:2) deals with this case, and while he is inclined to be lenient, he writes that it is good to be strict unless one has made an explicit stipulation before Yom Tov. Mishne Brurah (no. 24) goes further and states that according to many Achronim it is strictly forbidden to remove the decorations, in the absence of a stipulation, even if done to protect them from damage. Thus, one should not take down the decorations unless one is already taking down the whole sukkah. In cases of serious loss, one can rely either on Rema or on the assumption that there is an implicit stipulation that one will take down the decorations if they need to be protected (see Mishne Brurah, above).

3. Once you take down the schach and the walls, you should not use them for other purposes, this would be the הוקצה למצוותו problem. This is based on Rema who rules (OH 638:1), based on Tosafot (Beitzah 30b, ד”ה אבל), that even if the sukkah fell down one may not use the schach for any other purpose until the end of the chag.

4. If the weather changes and it is possible to eat in a sukkah on Shmini Atzeret, you should try to find someone who still has a standing sukkah and eat in it. If it is very uncomfortable to ask people you don’t know, then there is room to rely on the practice to not eat in a sukkah on Shmini Atzeret, even though this is not your normal practice. This is not an issue of minhag which would require some form of התרת נדרים , but rather a matter of psak. You as a rule follow the poskim who require eating in a sukkah on Shmini Atzeret. In a שעת הדחק you may rely on the other poskim.

Taking Down a Structure on Chol HaMoed (and Yom Tov)

In addition to the issues discussed above, some have raised the concern of sitrah, taking down a structure, which should be forbidden on Chol HaMoed because it is a melakha. Before any analysis, it should be clear from all the foregoing that this is not a concern. In none of the sources quoted above that discuss taking down a sukkah on Chol HaMoed is the issue of stirah raised. Those who permit taking down the sukkah did not need to justify why stirah would be permitted, and those who forbade did not mention stirah as one of the concerns.

The reason is obvious as to why it is taken for granted that this is not a problem. When it comes to taking down the schach, we are just talking about stirat ohel, not stirat binyan, and stirat ohel is not forbidden on Chol HaMoed. The sugyot of הוקצה למצוותו and the discussion of the Rishonim there make it clear that taking down the schach of the sukkah is only forbidden on the basis of stirat ohel on Yom Tov, and not on Chol HaMoed. This is stated explicitly by Arukh HaShulkhan (OH 638:8-9), Mishne Brurah in Beiur Halakha (638 ד”ה דהזמנה), and it is implicitly assumed by all poskim.

The same would be true when it comes to taking down the walls in most of our contemporary sukkot which are not attached to the ground. In such cases there is no stirat binyan, and thus it is totally permissible on Chol HaMoed. Even in the case of a sukkah attached to the ground, if there was a concern of financial loss or potential damage to others, it would be permitted to be dismantled. See SA OH 540:1, where binyan and stirah are permitted in such cases, especially when it is a not done by מעשה אומן, craftsman labor. [The Magen Avraham in no. 3, seems to state that stirah is not permitted unless there is true danger, but a close reading shows that what is not permitted absent a case of danger is to dismantle a wall and then rebuild it. This is stated clearly in Mishne Brurah no. 5.]

As we discussed above, if for some reason the sukkah was not dismantled on Chol HaMoed, and there is a real sakanah leaving it up on Yom Tov, then it can be dismantled in such a case as well, but ideally this should be done by a non-Jew. Even when done by a Jew, the prohibition would only be rabbinic, since this is not סתירה על מנת לבנות במקומו.

We pray that Hashem protect us, and everyone who might be in the path of this hurricane, that we be safe and spared any harm. ופרוש עלינו סוכת שלומך והגן בעדנו ותקננו בעצה טובה מלפניך. ושמור צאתנו ובואנו מעתה ועד עולם