637 - תרלז דין סוכה שאולה וגזולה ובו י"ב סעיפים

The Laws of a Borrowed and Stolen Sukkah

1. If a person did not make a sukkah before the festival, whether unintentionally or deliberately, he should make a sukkah during Chol Hamoed and sit in it.

And even though it is written, "The festival of Sukkos you shall make for yourself for seven days"—does this not mean that one must make a sukkah fit for seven days, excluding Chol Hamoed, since it is not fit for seven days?

Rather, the intent of the verse is: throughout all seven days, you shall make a sukkah. If you did not make it on the first day, make it on the second day—even at the end of the seventh day.

2. Similarly, it is permitted to leave one sukkah and sit in another sukkah. One does not need to sit all seven days in the same sukkah.

3. Although the Torah says, "The festival of Sukkos you shall make for yourself"—for yourself, meaning it should be your own sukkah and not your friend's—nevertheless, a person fulfills his obligation with a borrowed sukkah.

Since he entered it with permission, it is considered as his own.

The phrase "for yourself" was stated only to exclude a stolen sukkah, as will be explained.

Similarly, a person fulfills his obligation with a sukkah in which he is a partner with his friend, even if he entered it without his friend's permission. This is not called theft, since their partnership was made with the understanding that each could use it as he wishes.

4. Even a stolen sukkah is sometimes valid.

How so?

If a Jew prepared his sukkah, and his friend came, forced him out of his sukkah, stole it, and sat in it—he fulfills his obligation.

This is because land cannot be stolen. That is, it does not have the status of theft like movable objects, which remain in the possession of the thief for all purposes. For example, if the thief improved the object, the improvement belongs to him, as with movable objects. But land always remains in the possession of its owner, and in the hands of the thief it is considered as borrowed.

Anything attached to the ground is like the ground itself; it is not acquired by the thief, but is considered as borrowed in his hands.

Therefore, this sukkah, which is built on the ground, is considered as borrowed in the hands of the thief, and he fulfills his obligation with it, just as one fulfills his obligation with a borrowed sukkah.

5. If one stole wood and used it for the s'chach of his sukkah—even if he did not attach it to the sukkah, but merely placed it on top, and did not make any change to it, so that during the rest of the year he would be required to return the actual wood to the owner (since he did not acquire it at all, having made no change to it)—nevertheless, for the sake of the mitzvah of sukkah, the Sages decreed that the owner is entitled only to the value of the wood, and the thief does not need to dismantle his sukkah to return the actual wood.

It is permitted to sit in such a sukkah, even initially.

However, if the thief does not wish to pay the owner the value of the wood, he does not fulfill his obligation with this sukkah, since it is stolen in his hands.

6. Similarly, if one stole a sukkah that is not attached to the ground, such as one made on top of a wagon or a ship, it is considered like movable property and has the status of theft, remaining in the possession of the thief for all purposes, and is not considered as borrowed in his hands, but rather as stolen.

Therefore, if he sits in it during the festival, he does not fulfill his obligation.

Even if he wishes to pay the owner the value of the sukkah, it does not help him at all, for the Sages only made their decree in a case where one exerted effort to build it for the sake of the mitzvah, such as when he stole wood and used it for s'chach. But one who stole a valid sukkah and did not exert effort or spend to make it fit for use must return it intact to its owner.

7. Similarly, if Reuven built a sukkah on Shimon's land without his knowledge, and Shimon forced Reuven out and sat in the sukkah built on his own land, he does not fulfill his obligation, since it is stolen in his hands and not considered as borrowed, since it does not stand on Reuven's land.

And even though anything attached to the ground is like the ground, and land does not have the status of theft but rather of borrowing, nevertheless, since the sukkah does not stand on the land of the one who was dispossessed, but rather on the land of the one who took it, it is in the possession of the latter for all purposes, like other movable property. Since he entered the sukkah on his own land, it is in his possession for all purposes and is not considered as borrowed in his hands, but rather as stolen.

8. But if Reuven built his sukkah on Shimon's land with his knowledge, having borrowed the land for the seven days of the festival, and afterwards Shimon stole the sukkah from him and sat in it, he fulfills his obligation. For all seven days of the festival, the land belongs to Reuven, and his sukkah stands in his possession, even after Shimon took it from him. Anything attached to the ground is like the ground, which does not have the status of theft but rather of borrowing, as explained above.

9. All this applies after the fact: if one already sat in such a sukkah, he has fulfilled his obligation. But initially, one should not sit in his friend's sukkah without his knowledge, even if he does not intend to steal it, for perhaps the owner is particular about this, not wanting his friend to see his eating and activities without his knowledge.

However, it is permitted to enter and sit in his friend's sukkah when the owner is not there, for certainly he will not mind, since a person is pleased that a mitzvah be performed with his property when it causes him no loss, as explained in section 14.

10. Similarly, one should not initially make a sukkah on his friend's land without his knowledge, for perhaps the owner is particular about someone establishing his dwelling on his property without his knowledge. We do not say that a person is pleased that a mitzvah be performed with his property except when it is done only occasionally, but not when his property is used regularly, as explained in section 14.

11. Similarly, one should not initially make a sukkah on public property, such as in the city street or similar places where the public passes through. Even if the entire city belongs to Jews, and a Jew would certainly forgive him for this, nevertheless, one should not make a sukkah in the public domain, since the whole world has the right to walk there, as stated in Choshen Mishpat, siman 162, and non-Jews do not forgive this. Therefore, it is considered a stolen sukkah.

Even though, after the fact, one fulfills his obligation with a stolen sukkah that stands on the ground of the person from whom it was stolen, as explained above, nevertheless, at the outset, one should not sit in a sukkah that stands on another person's land, because it is not truly considered his own. And the Torah says, "You shall make for yourself"—from your own property.

And it is not comparable to a sukkah that is truly borrowed, which was lent to him with the owner's consent, and is therefore considered as his own in every respect.

Therefore, one should object to those who make a sukkah in the public domain.

And in every case where we have explained that one should not make a sukkah there at the outset, if he transgressed and did so, even though it is valid, as explained above, nevertheless, one should not recite a blessing over it, since this sukkah came into his possession through a transgression. Such a person does not bless, but rather blasphemes.

12. A Jew should not cut the s'chach himself from a non-Jew's forest, even with the non-Jew's consent. Rather, the non-Jew should cut it and give it to the Jew, or another Jew who will not be sitting in the sukkah made from this s'chach should cut it and give it to the Jew who owns the sukkah. The reason for this will be explained in ^[14]; see there. All the details of this law will be explained there as well.