Chazakah on a Sukkah

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By: Reb Avi Lebowitz

The Gemora says that generally, if a person builds a hut which infringes on his friend’s property, there is a grace period of thirty days in which the owner graciously permits the hut owner to use the area and doesn’t have to protest. But, after that grace period has passed, if the owner doesn’t protest, the hut owner will have an established right to be able to claim that he purchased the rights of use. But, if the hut is built for a sukkah on Sukkos, then immediately after the seven days of s Sukkos passes, the lack of the owners protest enables the builder to claim that he purchased the right to leave it there permanently. [This is according to Rashi, but the Hagahos Ashri cites other opinions that it is seven days in addition to the thirty days.]

Tosfos points out that in truth, the builder doesn’t have a chazakah after seven days; he only has a chazakah after eight days since on the eighth day, which is Shemini Atzeres, it wasn’t possible to remove the sukkah.

The Ya’avetz asks: What compelled Tosfos to say that he will not have a chazakah until the eighth day is over. Perhaps we assume that the owner would have allowed him to use the space for the mitzvah, but as soon as the mitzvah ends, the owner is expected to protest. The fact that the owner fails to protest would not enable the builder to claim that he has acquired permanent rights to this area!?

It would seem that Tosfos holds that although the owner can protest the sukkah immediately after the seven days pass, even before the eighth day ends, he is not expected to do so. Why? It is because he is well aware that his protest is futile. The owner can claim that for the duration of Sukkos, he allowed the hut owner to fulfill his mitzvah. On the eighth day he also did not protest because he knew that his protest would be in vain, since the hut owner could not remove the sukkah until after Sukkos. Therefore, Tosfos holds that the owner has the right to protest through eight days.

From this we can learn that even after one has been machzik for enough time to create a chazakah, it is only effective if by the owner protesting he could have forced the hut owner to leave. But in a situation, where the owner could not have forced the hut owner to leave, such as when the chazakah concludes on a Shabbos or Yom Tov, the owner is not expected to protest and is given an extra day to voice his protest.

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Stealing for Pain

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Runya had a field which was enclosed on all four sides by fields of Ravina. Ravina fenced them and said to Runya, “Pay me (your share) what I have spent for the fencing.” Runya refused to pay. Then Ravina said, “Pay me at least the cost of a cheap fence of reeds.” He again refused. Ravina said, “Then pay me the hire of a watchman.” He still refused. One day Ravina saw Runya harvesting dates from his palm trees, and he said to his sharecropper, “Go and (in Runya’s presence) take a cluster of dates from him.” He went to take them, but Runya shouted at him, whereupon Ravina said, “You have demonstrated through this that you are satisfied with the fence (and happy that it offers protection for your trees). Even if it is only goats that you are afraid of, does your field not need guarding?” He replied, “A goat can be driven off with a shout (so there is no purpose for a fence).” Ravina asked him, “But don’t you require a man to shout at it?”

They went before Rava, who said to him: Go and appease Ravina with what he accepted (the payment for half a watchman), and if not, I will issue judgment against you according to Rav Huna’s interpretation of the ruling of Rabbi Yosi (and you would be required to pay for half the actual cost of the fence).

The Ritva asks from a Gemora in Bava Metzia (61b), which states that one should not steal in order to pain someone. If so, how was Ravina allowed to send his agent to steal?

He answers that the dates in this case were ready to be sold and their price was set. Accordingly, one is permitted to take them with the intent of paying for it. Ravina did it in this manner in order to demonstrate that Runya was pleased with the protection afforded by the fence. It was therefore not regarded as stealing at all; it only appeared that way.

He also answers that it is only forbidden if the person’s intent is to pain his fellow. Here, it was done to bring about a correct judgment.

This answer, however, is somewhat problematic, for the Gemora there states that it is forbidden to steal even if the intent is to provide him with the keifel (double the value; if someone wishes to give charity to a poor person, but he refuses, he could steal from him and the keifel will serve as his charity).

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Counseling an Idolater to Avoid Divine Retribution

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The Gemora asks: How could Bava ben Buta give advice to Hurdus, seeing that Rav Yehudah has said in the name of Rav, or alternatively, Rabbi Yehoshua ben Levi, that Daniel was punished only because he gave advice to Nevuchadnezzar, as it is written: Nevertheless, O king, let my counsel be acceptable to you; redeem your sins through charity and your iniquities by showing mercy to the poor; if there may be a lengthening of your tranquility etc. And later on it is written: All this came upon the King Nevuchadnezzar, and afterwards it is written: At the end of twelve months etc.?

The Gemora answers: Either you can say that this does not apply to a slave, who is under obligation to keep the Torah’s commandments, or you can say that an exception had to be made in the case of the Temple which could not have been built without the assistance of Royalty.

The Gemora asks: How do we know that Daniel was punished? Shall I say that it is from the verse: And Esther called to Hasach, who, as Rav has told us, was the same as Daniel? This is a sufficient answer if we accept the view of those who say that he was called Hasach because he was “cut down” (chatach) from his greatness. But according to the view of those who say that he was called Hasach because all affairs of state were “decided” according to his counsel, what answer can we give?

The Gemora answers that he was thrown into the den of lions.

The Meiri writes that one who constantly sins, his iniquities are so great that the ability to repent is removed from him. This is why one should not divulge to them the appropriate ways of penance, for these people are not supposed to escape the Divine punishment. This is why Daniel was punished, for without solicitation, he proffered advice to Nevuchadnezzar, as to how to escape Hashem’s anger.

The Yad Ramah adds that this prohibition applies only to an idolater who is oppressing a Jew – one is forbidden from counseling him to perform mitzvos or dispense charity to the poor in order to evade retribution for their sins. It emerges that it would be permitted to offer such advice to an ordinary idolater.

However, it is evident from the Rambam that he maintains that it is forbidden to give any positive counsel to an idolater, as long as he remains steadfast in his evil ways.

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Destroying a Shul

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By: Reb Avi Lebowitz

The Gemora says that one cannot destroy a synagogue until the replacement is rebuilt. The Gemora quotes two reasons for this prohibition:
1. Negligence - maybe an accident will occur (Rashi) that prevents the building of the new synagogue.
2. No place to pray - in the meantime there won't be anywhere to pray.

The Shulchan Aruch (152) rules like the first reason, therefore it would be prohibited even if there was another place to pray.

The Mishnah Berurah (5) says that when there is another synagogue in town that can fit the entire congregation, the Taz permits its destruction, but the Magen Avraham is stringent.

The Biur Halachah explains that one can rely on the Taz since we are only dealing with a Rabbinical prohibition, and many Rishonim allow the synagogue to be destroyed, even according to the first reason, when there is an established synagogue to pray in; not just a place to pray (Tosfos). Based on this, a synagogue may be destroyed in order to rebuild, so long as there are other synagogues in the community that can hold all the members of the one that is rebuilding.

The Gemora says that the entire prohibition only applies when the synagogue is in good condition, but if it starting to decay and therefore not functional in its present state, one can destroy it to build another.

The Gemora also says that the only Bava ben Buta gave Hurdus advice to destroy the Beis Hamikash in order to rebuild it because they began to see cracks there.

The Mishnah Berurah (2) proves from here that even if the intent is to make a much nicer synagogue, it is forbidden, so long as the first one is still functional.

However, the Taz (quoted in M.B. 9) is liberal about the definition of “rotting.” The Taz holds that when the first synagogue is too far from where the community lives, such as outside the wall of the city, “there is no greater crack than this,” and it can be rebuilt in a more appropriate location. Similarly, Tosfos explains that a summer synagogue in winter or vice versa, can qualify as a “crack,” and it may be destroyed.

It is important to note that the entire issue of destroying a synagogue is only considered a Rabbinic prohibition because it is being done for constructive purposes, i.e. to rebuild another in its place or elsewhere. However, when the synagogue is being destroyed for a destructive purpose, it is a Biblical prohibition, at the Mishnah Berurah (11) points out that it is derived from the verse: One should not do this to Hashem, your G-d.

The Biur Halachah explains that this not only applies to items that are attached to the ground, but even destroying movable items, such as the bimah and amud are Biblical prohibitions.

The Maharam Padawa allows the removal of the tangible items from the synagogue, and it is not a violation of this prohibition, since it is not destroying the actual structure (unlike the removal of bricks).

Ariach and Levainah

By: Reb Binyomin Adler

The Gemora cites a Mishna, which states that the beam has to be wide enough to support an ariach, a half-brick. We find that the term ariach is used in other instances, i.e. by the Shiras Hayam, the Song sung by the Jewish People at the Red Sea. There the Gemara mentions that the Shirah is written ariach al gabei levainah, a half-brick on top of a full brick, which means that one line of the Song is written like a half-brick, and the line beneath it is a full brick. We can interpret the terms ariach and levainah homiletically. A half-brick symbolizes that a person’s heart should be contrite and broken, and by demonstrating sincere remorse for one’s transgressions, Hashem will grant him atonement, as the word levainah connotes atonement. The word lavan, which is closely associated to the word levainah, means white, and white reflects atonement.

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Unrecognizable Damage

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By: Reb Avi Lebowitz

The Gemora quotes from a braisa that if one fails to fence his vineyard, thereby causing the adjacent produce owned by someone else to become forbidden as kilayim, the owner of the vineyard is responsible to pay for the damage.

Tosfos asks: Why is the owner of the vineyard liable to pay? It should qualify as a hezek sh’eino nikar - an unrecognizable damage, which is not considered a damage?

Tosfos answers that even if the damage isn’t recognizable in the object, so long as the context of the situation looks like a damage, i.e. the vines growing near the produce without a fence separating, it is considered a damage that is recognizable and the owner is liable.

Tosfos asks: If this is considered “recognizable,” why do we considered it to be an unrecognizable damage when one takes a sheretz (creepy insect) and places it on his friends taharos? There too, the context of the situation should qualify as a damage recognizable?

Tosfos answers that since tumah requires not only contact between the sheretz and the taharos, but also requires hechsher (the food must become moist willingly to be susceptible to tumah), that aspect is still not recognizable and therefore qualifies as a damage which is not recognizable.

The question is, however, that Tosfos just got finished saying that kilayim is not merely a situational prohibition of mixing produce and grape vines. Kilayim is only created if the owner “wants it.” Based on this, Tosfos explains that so long as the owner is doing whatever possible to build a fence, even though the kilayim grew .5% prior to the fence being erected, it is not considered a kilayim violation. Since kilayim also has its own set of prerequisites to become forbidden - only if the owner fails to put in the effort of building the fence, which is not necessarily recognizable, we should consider kilayim a damage which is not recognizable, just as we consider tumah a damage which is not recognizable (due to the lack of recognition that it became huchshar l’kabel tumah)?

Tosfos apparently holds that by kilayim the prohibition is a metzius of growth. We don’t require the consent of the owner to create the prohibition; just that if the owner makes an effort to build a fence and demonstrates that he doesn’t want the kilayim, the prohibition can be avoided. Tumah requires a positive act of hecsher to create the status of tumah, therefore it is considered “not recognizable,” but kilayim doesn’t require a positive act to become forbidden (rather, a positive act to repair the fence will prevent the prohibition).

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Evil Eye

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Rabbi Abba said in the name of Rav Huna who said in the name of Rav: A person is forbidden from standing near his friend’s field when its stalks are grown.

Shulchan Aruch cites this halachah; however, the Rambam omits it.

The Maggid Mishnah explains that the Rambam maintains that this is not actually a prohibition; rather, it is a midas chassidus - one who wishes to act piously should avoid standing near his fellow’s field when there is standing grain. This is why we do not force neighbors, whose roofs are adjacent to each other, to build a fence so one should be prevented from looking into the other’s area.

The Raavad disagrees, and holds that a wall of four amos is required by a garden.

The Steipler Gaon quotes from a wise man that one who damages by casting an evil eye on another will not be liable to pay. It is for this reason that the Gemora utilizes the term “it is forbidden,” and not that “one is liable.” The Steipler disagrees, and explains that the reason the term “liable” is not used is because we have no way of determining without a doubt that the damage occurred on account of this person’s evil eye. However, if we would know for certain that it was due to him, he would be liable (except according to the Rambam).



Evil Eye

The Gemora (Bava Metzia 30a) states that one is forbidden to spread out a lost article that he is watching when he has guests because when the guests see the article being displayed, they may be envious and they will cast an evil eye on the article.

One must wonder why one should be concerned of someone else’s jealousy, especially if it is said: and the rotting of the bones is jealousy. Why should one be concerned that someone else’s envy will harm his belongings and property?

We find that the gentile prophet Balaam, when blessing the Jewish people, declared, how good are your tents, Yaakov, your dwelling places, O Israel. The Gemora states that Balaam saw that every Jewish tent was aligned in a way that no one could see inside his neighbors’ tent. Besides for the issue of privacy, there was another dimension to this blessing. Balaam had an evil eye, and Balaam wished to curse the Jewish People with his influence. By casting an evil eye on a neighbor, one is essentially influencing his Jewish friend with the character of Balaam, and this is detrimental to one’s well being. For this reason one should avoid casting an evil eye on someone else, and one must also be careful to avoid allowing others to cast an evil eye on himself or on his possessions.

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