By Rabbi Yair Hoffman
If the facts reported are correct, the events that unfolded this past Sukkos at the Rye Town Hilton are a bit shocking. Apparently, a few hours before Sukkos began, the Westchester Department of Buildings came down and forbade use of the Sukkah designated for use by over 200 guests. They then actually confiscated the Schach to ensure that the Sukkah not be used. Although the tour operators offered to post 24 guards and fire personnel to ensure the safety of the guests, the offer was not accepted.
It seems that some people did get hold of two pop-up sukkos and the three days of Yom Tov were spent with the guests switching off making kiddush in these two smaller sukkos.
There is no doubt that hearing and reading of this incident will cause quite a stir, however, in this article we will deal solely with the halachic aspects of the incident.
The issues can be divided into two parts: The first is how best to handle the situation from a halachic perspective. The second issue is how best to try and ameliorate the lack of a Sukkah on Yom Tov.
HANDLING THE SITUATION
Regarding the first issue, it would seem that the hotel kitchen staff should prepare mini portions of meat and challah. Each male guest should wash before entering one of the two pop-up Sukkos, make Kiddush on wine, Hamotzi on bread and eat the mini meat portion. He should then bentch. The entire process should take between five and seven minutes. He may have a second meal in the regular hotel and avoid mezonos foods, bread, and wine.
One is technically permitted to wash for HaMotzi even before Kiddush – even though this is not the prevalent Minhag. This is actually the German Minhag and is mentioned in the Ramah as well. Assuming there are fifty men per pop-up Sukkah and two can fit at one time, the entire procedure could take 2 and ½ hours.
This author would like to suggest that each individual guest could ask a gentile worker to build a smaller Sukkah by going to a local Home Depot and buying the necessary material. The rationale for this is as follows:
As we know, generally speaking, the sages forbade asking a gentile to perform an otherwise- prohibited action on the Sabbath or on a Jewish holiday. The prohibition is called “Amira l’Akum” and is found in Shabbos 121a, where we learn that it is forbidden to ask a gentile to extinguish a (non-life-threatening) fire.
The explanations given for this prohibition are many. Rashi (Avodah Zarah 15a) explains that the Rabbis felt that it would be a violation of v’daber davar (Isaiah 58:13) – speaking about prohibited things. Elsewhere, (Shabbos 151a) Rashi explains that the sages made it as if the Jew was performing the violation himself through the concept known as shlichus. Finally, the Rambam explains that the Rabbis were concerned that a Jew who asks a gentile to do something forbidden may take the Shabbos lightly himself and come to a violation himself.
EXCEPTIONS TO THE PROHIBITION
However, there are times when exceptions were made to this rabbinic prohibition. Some exceptions pertain even to a biblically forbidden restriction, while other exceptions only pertain to a Rabbinic restriction. (For example, during Friday night twilight one may ask a gentile to perform a biblical prohibition for the needs of Shabbos. When there is fear of a significant loss of money, one may ask a gentile to perform a Rabbinic violation – but not a Biblical prohibition).
The rationale is that under these four circumstances – the Rabbis never made the restriction of forbidding one to ask a gentile to perform an action that will remedy the situation.
FOR A MITZVAH ONE MAY ASK A GENTILE TO PERFORM A RABBINIC VIOLATION
The Rambam (Hilchos Shabbos 6:9-10), Mishna Brurah (307:23) and Aruch HaShulchan (OC 276:16) clearly state that for the needs of a Mitzvah, one may ask a gentile to violate a rabbinic stricture. Other modern Poskim (Dayan Weiss Minchas Yitzchak Vol. VIII #57) rule this way too, and a minority of Poskim even permit asking the gentile even to perform a full-fledged biblical prohibition when it is a Tzorech Mitzvah (See Mogain Avrohom 276:2). Indeed, this latter option is the position of the Baal haIttur (Siman 276), a famous Rishon. His view is occasionally invoked under pressing circumstances, see for example the Eliyahu Rabbah (586:29) who uses it in combination with a situation where some Poskim hold that an issue is in fact onlt Rabbinically proscribed.
BUILDING ON YOM TOV MAY BE ONLY RABBINIC
Tosfos in tractate Shabbos (95a “HaRodeh”) is of the opinion that Boneh, building, is actually only a Rabbinic violation on Yom Tov and not a biblical one. On Shabbos, of course, boneh is certainly a biblically forbidden malacha, according to all opinions. This is also the view of the Tosfos HaRosh. The Piskei Rid 31b is of the opinion that when one does not use a cementing bond – then the prohibition is also Rabbinic in nature. While it is clearly understood that these are not the majority views in halacha, it is a significant enough view to be used in something that the Poskim call “a snif l’hatir.” A “snif l’hatir” means that it can be utilized as a component in an overall lenient ruling.
It is this author’s view that the two factors mentioned above, the Baal HaIttur’s view and the view of Tosfos in Shabbos 95a, can be combined to permit asking a gentile to go to Lowes or Home Depot and build a small Sukkah that the Department of Buildings would not declare invalid.
A simple Sukkah recipe would be to purchase 5 or 6 plywood boards and screw an upper and lower hinge on each. A two by four plank can be fastened on top and one on the bottom. Branches can be placed on it as schach.
Finally, one last thought. It seems that a similar situation happened in Brooklyn a number of years ago and the matter was brought before a judge. The judge ruled that the offender had ten days to take down that Sukkah.
The author can be reached at firstname.lastname@example.org.