The War Regarding the Porch Sukkah in Yerushalayim: A Halachic Analysis

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By Rabbi Yair Hoffman for 5tjt.com

There is a major controversy brewing in the Beis Yisroel section of Yerushalayim regarding a Porch Sukkah.  The porch Sukkah belongs to HaGaon HaRav Moshe Brandsdorfer shlita, son of the Knei Bosem – the Av Beis Din of the Eida HaChareidis.  The controversy involves the media, the police, and protests.

 

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Our Gedolim and Rabbeim have always taught us to view the world through Torah eyes.   As a consequence, we should always look at tumults and controversies as opportunities to look at the underlying halachah involved in the issues. Ki Haim Chayeinu – for Torah is our life is not just a meaningless expression – it is real – Torah study is our life.

THE YEREIM

The Yereim in Mitzvah 421 explains the Gemorah in Sukkah 26a that one does not fulfill the Mitzvah if a Sukkah is in a dangerous location, as the idea of teshvu k’ain taduru, reside in the Sukkah like you live –  is not fulfilled.  This is certainly true if even at the outset – it was dangerous, and not something that changed later on. This is the halacha as codified in the Mordechai Sukkah chapter II Remez 740. HaGaos Maimonius (Sukkah 6:1)  and the Ramah in Orach Chaim 640:4.

A DANGEROUS SUKKAH

In Yadin Moshe (11:84) Rav Chaim Kanievsky was asked whether it is permitted to erect a Sukkah in a dangerous area or do we invoke the principle of Shomer Mitzvah lo yaidah rah – one who performs a Mitzvah does not experience a bad event?  Rav Chaim answered that it is forbidden.  The reasoning is that when it is shchiach hezeikah – not a far-off danger, we are concerned.

THREE QUESTIONS

There are a number of questions that arise.

  • Is the idea of danger an objective matter or a subjective matter?
  • Also, how do we define danger – are there objective criterion that must be met or is it the public perception of whether something is dangerous or not?
  • Finally, is the specific Sukkah under discussion considered dangerous, or is

OBJECTIVE OR SUBJECTIVE?

As far as the first question goes, this author presented the question to Rav Herschel Ausch shlita, who explained that it is clearly objective – either what most people would consider to be a danger or what a qualified engineer would consider to be dangerous.  In other words, if, in fact, most people would consider it dangerous and he himself does not consider it dangerous, then he would still not be fulfilling the Mitzvah.

IS IT PUBLIC PERCEPTION OR OBJECTIVE CRITERION?

As far as the second question goes, there is a fascinating Gemorah in Yevamos 72a.  There, Rav Papa is quoted as saying that even though there is a Torah obligation of venishmartem, being careful in matters of health and safety, but there is also a concept called “Shomer pesaim Hashem – Hashem looks after fools (Tehillim 116:6).”  Both the Ritva (ibid “Shomer”)and Rav Moshe Feinstein zt”l (Igros Moshe CM Vol. II #76) seem to learn this statement as ascribing a socially acceptable risk as being permitted.  If the risk is not socially acceptable – then it would be forbidden.  [It is interesting to note that years after his father had passed away, Reb Dovid Feinstein zt”l stated that, in regard to smoking, nowadays – even his father would have ruled that it is absolutely forbidden.]

RAV CHAIM OZER’S VIEW

Rav Chaim Ozer Grodzinsky zt”l, in his Achiezer (Vol. I 23:2) rules that the pasuk of Shomer pesaim Hashem only applies when the danger is relatively small.  His understanding of Rav Papa is different than that of Rav Moshe in his Teshuvah.  How do we understand Reb Dovid’s more nuanced view of Rav Moshe’s view?  I would like to suggest that Reb Dovid understood his father as discussing a case where there is no clear, present and provable link from the action to the danger – it is just a statistical one.  Now, however, that the exact etiology of the issue has been demonstrated – even Rav Moshe would have agreed to forbid smoking nowadays.

THIS SPECIFIC SUKKAH

As far as the third question is concerned, that would seem to be a question for qualified engineers.  Porch collapses and sukkahs that are on top of them can collapse for a number of reasons:

  • Overloading due to excessive weight of too many people and or too much furniture
  • Rotting wood due to weather
  • Loosening that occurs due to sway
  • The soil under the foundation could have moved naturally or due to rust and or misplaced fasteners
  • They were not built for this purpose or to code and there was no cross-bracing or adequate connections to the structure.

CONCLUSIONS

There are times when engineers go about their business in a manner that does not reflect the best practices of the profession.  We have seen this, unfortunately, in a number of recent tragedies from Florida to Eretz Yisroel.  According to a report in B’Chadrei Chareidim, Rav Brandsdorfer ended the conflict by summoning the Chief Rabbi of the Police, Rabbi Rami Berachyahu who came to the home of Rabbi Brandsdorfer together with the Chief Police Officer of the Jerusalem district and the three men settled the matter calmly.

According to B’Chadrei Chareidim’s report, the agreement, the police would leave the area, and the Sukkah would be dismantled tomorrow afternoon, before Yom Kippur by the family. It would then be rebuilt on the sidewalk in a safe manner.

 

*PLEASE HELP A VERY CHASHUV FAMILY*

https://thechesedfund.com/zechornilah/hachnasaskallah

The author can be reached at [email protected]

 

*PLEASE HELP A VERY CHASHUV FAMILY*

https://thechesedfund.com/zechornilah/hachnasaskallah


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