In the observance of Jewish law there arise circumstances when the commandment, or the law, cannot be fulfilled or observed. The general category which describes this condition is known as Ones or a state of duress and total lack of personal control of the situation. In Rabbinic parlance, this dictum is stated as Ones Rachmanah Patrah, i.e. the Torah absolves a person from personal obligation when he is in a helpless situation.
There can be various conditions or various degrees which express this principle. One is excessive effort or work (Tirda or Tircha) which stand in the way of observing the commandment. There is also the issue of excessive monetary cost. There is also the issue of cost to health or risk to one’s life. There can also be an issue of unavailable time or time already committed in the performance of another commandment.
In the performance of the mitzvah of dwelling in the sukkah, the Rabbinic tradition added another absolving factor called tzaar, which can be interpreted as either pain or emotional distress. This exoneration from the mitzvah of dwelling in the sukkah seems to be unique among all other absolutions. Analysis of this absolution from the obligation of the mitzvah of sukkah must be attempted.
The underlying source for the rational of exonerating the mitztaer (one who has tzaar) is given to us by the Tosafot. The Tosafot offers a logical analysis or interpretation of a braita that, on its face, has nothing to do with the issue of mitztaer. The braita is based on a verse in Leviticus 23:43 which states: “you are to dwell (taishvu) in sukkot for seven days.” The Braita states:
You are to dwell as you [normally] live (taishvu k’ein taduru). From here they (Mishna) said: all seven days a person makes his sukkah a permanent dwelling and his home a temporary dwelling. How? If he has beautiful utensils, he brings them into the sukkah; beautiful blankets, he brings them into the sukkah; he eats, and drinks and visits in the sukkah. . . (Sukkah 28b)
The Tosafot Yom Tov explained that the basis of the interpretation of the Biblical verse that dwelling should be like normal living is because the more direct way that the Torah could have stated the verse is "you shall be" (tihiyu) in the sukkah. The term Taishvu, is really an indirect way of stating the case. It thus implies the additional interpretation of Taduru. (Comment on Sukkah, 26a)
This braita is not disputed by any Talmudic opinion. It however, in no way discusses the issue of mitztaer. It is the Tosafot that applies mitztaer to the issue of taishvu k’ein taduru.
. . . Mitztaer which was . . . exempt from the sukkah . . .is from . . .taishvu k’ein taduru, you shall dwell as you (normally) live. For a person cannot live in a place where he feels tzaar (distress). (Tosafot “Holchei Drachim” Sukkah 26a).
The Talmudic authority that introduces the concept that a mitztaer is patur (exonerated) from dwelling in the sukkah, is Rava. It is crucial that we analyze the circumstances where Rava uses this principle in order to properly understand its components.
There are two cases in the Talmud which teach us much about mitztaer’s underlying principles. The first case is the following:
. . . Rabbi Abba bar Zavda said in the name of Rav: a mourner is obligated in the (mitzvah of) sukkah. (The Talmud asks) isn’t this obvious? (for a mourner is obligated in all the commandments of the Torah) (The Talmud answers) I would have thought that since Rava says that one in mental anguish is absolved from the sukkah (mitztaer patur min hasukkah) here also (in the case of the mourner) he is also in mental anguish (so he should be patur from the sukkah. Therefore) he (Rav) teaches us that the case of absolution applies when the tzaar comes of its own accord, but here (in the case of the mourner) the source of the anguish lies in the mourner himself . . . (Sukkah 25b.)
Rashi explains that in the case of the sukkah, the anguish which the individual feels occurredbecauseof the sukkah, “it is the sukkah which caused him the discomfort, as for example, heat or cold or smell from the schach (vegetation that he used as covering)” ad locum. The source of the tzaar lies in the nature of the sukkah and apparently not within the individual. If this is true, then we are confronted by a great difficulty. Why do we altogether need the concept of mitztaer? We can simply say that if the fault is in the sukkah, then it should simply become an invalid sukkah (psula) and no one should be allowed to use it?
This becomes more apparent in the following Talmudic passage:
Rava allowed Rabbi Acha bar Ada to sleep in a room outside of the sukkah because of the smell emanating from the ground (of the sukkah) . . .Rava followed his reasoning for Rava said, mitztaer patur min hasukkah. Sukkah 26a.
Rashi explained that the smell from the ground was caused by white earth (sircha degargushta) (lyme? - C.H.) which was pounded into the ground of the sukkah (to make it harder). And Rashi again comments, “for it is the sukkah which causes him the discomfort” ad locum. This again leads us to ask, why then is not the sukkah disqualified for any use by anyone?
The Rabbenu Chananel gives us a hint at a possible answer. When it comes to the case of the mitztaer,
. . .he alone is absolved, and even if he is discomforted only by a mosquito or bad smell and other such things, he is absolved and certainly if he is discomforted by greater things than those. (Sukkah 26a.)
Similar language is used by the Magid Mishna in his analysis of the Rambam. The Rambam states:
. . .The mitztaer is absolved from the sukkah, but not his servants. And what is a mitztaer? It is one who is unable to sleep in the sukkah because of the wind, or flies and insects and things like that, or because of the smell. (Mishneh Torah, Sukkah 6:2.)
The Magid Mishna comments that the Rambam’s comments are based on Rava’s comments,“and there (Sukkah 26a) it is explained that a mitztaer is (absolved) due to something kal (light or unimportant)” adlocum.
The terminology “kal” is not found in the Talmud. How is that determined and why is it necessary to understand the concept of mitztaer?
This is directly dealt with by the Ran on his commentary on the Rif. The Ran states:
Sircha degargushtais white dirt which they used to pound into the ground of the sukkah, but not to the point that the smell is repulsive to everyone. For if that is so, it would delegitimize the sukkah . . .but in the case of mitztaer, we are dealing with him alone. (Ran on Rif p. 12.)
When we combine this interpretation of mitztaer established by the Ran with the one stated in the Talmud by Rashi (Sukkah 25b and 26a) that it is the sukkah which discomforts the mitztaer, we are forced to conclude that the principle of mitztaer creates a sukkahthat is only invalid for him.
In all other cases either the sukkah is totally invalid for everyone, or the person, i.e. the one who is sick, is totally absolved from the mitzvah itself. In this case, the sukkah is still valid for use, and the mitztaer apparently is still liable to perform the mitzvah.
In light of the Ran’s analysis, it is difficult to understand the ruling of the Shulchan Aruch. The Rama states in the name of the Tur:
. . .a person cannot state that “I am a mitztaer” except in a case that is the norm for people in general to be mitztaer from that particular thing. . . Shulchan Aruch, Laws of Sukkah, 640:4.
If this is so, then again we must ask: why is not the sukkah invalid for everyone?
The opinion of the Rama is reinforced by the Chayei Adam in almost identical language. Klal 147:18. The Mishna Brura adds the following caveat: The halakha of mitztaer only applies when the person is, “an especially delicate person” (called an Anin) and that all delicate people in his class are subject to the same tzaar. (Shulchan Aruch 640:4 note 29.)
In addition, the Mishna Brura indicates a second difficultly if the mitztaer is not part of a totally separate class. If he were in a normal class of people, we would have to say, “even if he was a mitztaer, his feelings should become null and subordinated to the mind of the majority.” (Shulchan Aruch 640:4 note 28.)
It is the Biur Halacha that points out specifically the contradiction between the Shulchan Aruch and the Ran. The Biur Halacha states:
According to my poor understanding, the understanding of the Ran is not so. For this is his language, “in the case of the smell of the pounded earth; that it is not repulsive to all, for if it were so, the sukkah itself would be invalid . . .but here we are dealing with him alone,” and in truth, I do not understand the words of the Ran, for there (in the case of the pounded dirt) after the fact (the sukkah) is not invalid as the Rambam and the Rosh noted. . .later on I discovered that the Darchei Moshe pointed this out on the words of the Ran. . .perhaps he (Ran) is referring to one who is of a delicate nature (an Anin). (Adlocum on Shulchan Aruch 340:4)
Both the Rama and the Chayei Adam, however, appear to insist the concept of mitztaer include the proposition that all normal people be susceptible to the same tzaar. Neither utilize the concept of Anin or indicate that the individual nullify or subordinate his feeling to that of the majority. This ironically presents us with a possibility of reconciling the position of the Ran with the Shulchan Aruch without utilizing the remote solution suggested by the Mishna Brura and the Darchei Moshe.
This reconciliation would maintain the normal usage of the term mitztaer, which is not restricted to a specialized group, i.e. Aninin. This is important because Rava, who actually states the concept of miztaer, makes no reference to an Anin and is not concerned about subordinating the individual will to the opinion of the group. Neither are there references to Aninin in the cases of the Talmud or in the interpretation of Rashi or the Rabbenu Chananel. It is the understanding of both commentators that the tzaar was brought about by the sukkah and was not in the nature of the person. Finally, the fact that the sukkah remains valid according to the Rambam and the Rosh does not negate the Ran, but rather gives his opinion greater support.
What the Ran is actually stating is that all the afflictions or tzaar that discomfort the mitztaer in fact afflict everyone else as well. If the discomforts were of greater severity, the sukkah would become invalid for everyone. Conversely, if the individual had serious illness (choleh) he would be absolved from any sukkah.
Here, however, the discomfort is not sufficient from keeping most people from using the sukkah, and thus, the sukkah remains valid. Similarly, the tzaar is not sufficient to render the person truly ill. Thus, he is not absolved from dwelling in a sukkah.
This is what the Rabenu Chananel and the Magid Mishna meant to indicate when they called the factors in the sukkah which caused the tzaar or discomfort “light” (kal) or insignificant. The faults in the sukkah even if more severe, still did not reach the level of importance to invalidate the sukkah itself for all people.
The fact that the sukkah is still valid and the mitztaer is still liable to observe the mitzvah removes the issues of Anin and subordination to the majority. As far as the mitztaer is concerned, this particular sukkah interferes with the principle of taishvu k’ain taduru, and this is what exonerates him. But he can still fulfill his obligation by using another sukkah.
In effect, the principle of taishvu k’ain taduru simply expands its latitude. Just as many people do not necessarily like the homes they live in for various reasons, many may also not like the sukkah which they have. Most, however, make do with what they have, while others find their homes or sukkot so distasteful that they must have another one. When it comes to the sukkah, they are patur or absolved from the one they have, but are still obligated to find or build another one which is more suited to their liking.
The concept of subordination to the majority will cannot mean that everyone must have an identical sukkah, just as not everyone has an identical house. The principle of taishvu k’ain taduru means that everyone should have a sukkah that he wishes to make his permanent dwelling during the festival of Sukkot.
This indeed is a revolutionary concept that the individual has the final say of what sukkah he wishes to use to fulfill the mitzvah and can reject a sukkah which the Torah considers permissible. This is based originally in his right to accept or reject his year round permanent home. The rights which the Torah grant him to select a home are the same rights which he has in selecting a sukkah as long as the sukkah fulfills the Torah requirements. This is the true import of the concept of taishvu k’ain taduru.