Siman 626

The sukkah must be under the open sky. And if it is under something else—it is invalid. As it was taught (Sukkah 9b): "In sukkot shall you dwell"—and not in a sukkah that is under a sukkah, and not in a sukkah that is under a tree, and not in a sukkah that is inside a house. And the derivation is because it is written "besukkot" lacking the vav, which implies one sukkah, and not two coverings. And this is simple, that the one sukkah must be covered according to its law, specifically with something detached and not susceptible to tumah, as will be explained in siman 629. And that its shade must be greater than its sunlight, specifically that the sechach must be sufficient so that the shade of the sechach is more than the sunlight between it, as will be explained in siman 631. And behold, the law of a sukkah under a sukkah will be explained in siman 628. And the law of a sukkah inside a house—there is no explanation for it, and it is invalid in every case. However, regarding a sukkah under a tree—there are many details and opinions among our teachers, the Rishonim, as will be explained with the help of Heaven.

The opinion of Rashi and Tosafot there is that if the tree's shade is greater than its sunlight, it is invalid in every case: even if the sukkah's shade is also greater than its sunlight, and even if the sukkah preceded the tree. However, if the tree's sunlight is greater than its shade, and the sukkah's shade is greater than its sunlight, it is valid in every case, for this is not called a sukkah under a tree, since the tree does not possess the definition of a sukkah. This is when the sukkah's shade is greater than its sunlight on its own, and not through the combination of the tree. But if the sukkah itself has sunlight greater than its shade, but through the combination with the tree—with both of them together the shade would be greater than its sunlight—then if he lowered the branches of the tree while they are attached to the tree and mixed them with the valid sechach, and the valid is greater than the invalid, the invalid is nullified by the valid in a majority. For according to the Torah, everything is nullified by a majority, and the sukkah is valid. But if he did not lower them down, and they stand on their own such that they are not mixed, it is impossible for them to be nullified by a majority, for anything that stands on its own is not nullified. It follows that there is no valid sukkah here. The Tur brought this view, and this is the first opinion in the Shulchan Aruch section 1, see there.

And there is a question regarding this: Is it then permitted to mix a prohibited item intentionally? Behold: if he did this before Sukkot—it is not relevant then to call it prohibited. And even on Sukkot itself—this is not comparable to prohibited items, for this is not a food item but merely a mitzvah, and mitzvot were not given for benefit, for in such a case the Torah permitted that one fulfills the obligation of sukkah with it, and in such a case one does not fulfill it. It follows that this is not a prohibition at the time of the mixing, for is he then obligated to sit in this sukkah specifically? Behold, he can sit in another. And afterwards, when he mixed it—it is permitted to sit in it. Furthermore: this was stated as a Halakhah LeMoshe MiSinai, that any s'khakh that has a majority of kosher and a minority of invalid—it is permitted to sit in this sukkah, and behold it permitted doing so. And if it is difficult: if so, why do we need a majority of kosher? Behold, we maintain later in siman 631 that even equal parts are permitted, for "breach like the standing" is permitted. However, regarding this, the Ran, of blessed memory, answered that the matter is as follows: certainly "breach like the standing" when they are not mixed—it is permitted, but when they are mixed—the importance of the permitting factor is nullified because it was mixed. And a majority is required so that we may consider it significant. And even though the invalid was also mixed, and its importance is gone—we seek the importance of the kosher. And when it was mixed—its importance is gone.

And one should not ask: On the contrary, we required him to lower it and mix it, and if he did not do so—it is invalid. And how can we say that because of this itself it lost its importance? And furthermore, a great question may be asked: Why indeed do we require him to lower it and mix it, for invalid sakhakh and valid sakhakh, even if this stands on its own and that stands on its own—it is valid, as in siman 631 regarding metal spits, where if there is a space between them equal to them—it is valid. And behold, the spit stands on its own, and the valid sakhakh stands on its own. However, the matter is as follows: Certainly, a mixture is not required, and thus was the halacha stated, except that this is when the invalid is not entirely separated from the valid, but rather they lie together like that of siman 631. But not so the tree that is above the sakhakh, which is a different sakhakh, and it is sakhakh under sakhakh. Therefore, we necessarily require him to lower it and mix it, for if not so—behold, it is still like the tree itself, which has no connection to the valid sakhakh. Therefore, it is necessary to mix it. And according to this, what we questioned is not difficult at all: How can we nullify a prohibition lekhatchila? For on the contrary, here it does not require nullification, and the nullification does not cause the permission. Rather, on the contrary, it diminishes the power of the permission, for we require a majority. And the requirement of nullification is for a different reason, as I have written. And this is not comparable to other prohibitions, where the nullification causes the primary permission (so it appears in my humble opinion clearly). And in siman 22 it will be explained further. (The Chayei Adam rejected what our teacher, the Rema, wrote would be explained in section 6, and according to what I have written, it is settled well.)

The Rosh brought another opinion in the name of the Ra'avan and the Ra'avyah, and the Ran also wrote according to this opinion, which is: that which we said according to the opinion of Rashi and Tosafot—that when the kosher sechach has more shade than sunlight, and the tree has more sunlight than shade, it is kosher in any case—is not so. That is to say, in this manner it is not kosher unless the sechach of the tree is opposite the air space between the kosher sechach, for then the fitness of the sukkah is by means of the kosher sechach, in that its shade is greater than its sunlight. But if the sechach of the tree is opposite the kosher sechach, since the shade of the tree stands above, it nullifies the shade of the kosher sechach that is below it, for it overspreads it. It turns out that the primary shade of the sukkah is from the disqualified material, and there is no difference whether the tree preceded or the sukkah preceded. And it is not kosher when the branches of the tree are opposite the kosher sechach, unless even if the kosher sechach opposite the tree were removed, there would still remain in the kosher material alone more shade than sunlight. The Tur also brought this opinion, and the Shulchan Aruch as a second opinion; see there.

And even according to this opinion, our teacher, the Rema, wrote, and this is his wording: However, if he lowered the branches down and mixed them with the sechach so that they are not recognizable—they are nullified, and the sukkah is kosher. And so too if he placed invalid sechach upon valid sechach, or vice versa—it is called mixing, and it is kosher. Thus far his words. That is to say: that it does not require actual mixing, as I wrote in section 4. And his primary intention is that regarding the law of lowering—this opinion does not disagree with the previous opinion. And there is one who wrote that this is specifically when the shade of the sukkah is greater than its sunlight without the tree, and the tree does not join with it, for this is not a complete nullification since he can remove it (Magen Avraham, subsection 4). And these are wondering words, for it is explicitly proven in the Rosh, the Tur, and the Shulchan Aruch that in this, this opinion does not disagree with the previous one. And our teacher, the Rema, spoke precisely when he said that he mixed them. And so it is explicitly proven in the Gemara, and in Rashi, Tosafot, the Rosh, and the Ran, that the lowering is like actual mixing. And also that which he wrote, "that they are not recognizable," meaning: they are not recognizable on their own, but rather are placed together—for this is not like the matter of all mixtures of forbidden with permitted, as I wrote in section 4. (Also the Pri Megadim remained in "needs further study" regarding the Magen Avraham, and the Chemed Moshe rejected his words at length, see there. And so too his words in subsection 2 were not clarified to me at all. And also the Machatzit HaShekel found difficulty with it, see there. And examine closely and you will find it easy.)

And there is another opinion that was not brought in the Tur and Shulchan Aruch, which is that what we said—that when the tree's shade is greater than its sunlight it is pasul in any case—is only when the tree preceded the schach. But if the kosher schach preceded the tree, and its shade is greater than its sunlight, the tree that comes afterward no longer renders it pasul, even if the tree also has shade greater than its sunlight. And this is the opinion of the Geonim, and the opinion of our teacher Tam regarding the Mishnah of "one who spread a sheet over it because of the sun" (10a), as the Tosafot and the Rosh wrote in their names that the sheet that comes after the kosher schach does not render it pasul, unless the kosher schach does not have shade greater than its sunlight. But when it has shade greater than its sunlight, the sheet no longer renders it pasul, even though the sheet also has shade greater than its sunlight. And such is the law regarding a tree, that whenever the kosher precedes, the pasul does not render it pasul. And it appears to me that even according to this opinion, nevertheless, in a sukkah that is inside a house, even if the sukkah preceded, it is pasul, for there is another disqualification there: for the Merciful One said "sukkah" and not his year-round house (Rashi, Sukkah 14, starting with the words "A dispute"). And likewise from the derivation of "in sukkot"—and not that which is under a house.

One must wonder about the Tur, for here he did not bring this view. On the contrary, he wrote explicitly that there is no difference whether the tree preceded or the sukkah preceded. And later at the end of siman 629, regarding that law of one who spread a sheet over it, he wrote according to this opinion; see there. Our teacher, the Beit Yosef, already raised this difficulty there in his great book, and wrote that of necessity the Tur distinguishes between a sheet and a tree, but did not write the distinction; see there. However, the distinction is simple for two reasons: For certainly even if with a tree it is pasul in all manners, nevertheless with a sheet, when the kosher s'chach preceded—the sheet is like a sukkah decoration, since it is made to protect from the sun (Bach and Maharalch). And there is further to distinguish: that even if there is a difference regarding which one is prior, nevertheless this is only when the kosher and the pasul are close to one another, like the sheet and the s'chach. But here we are dealing with a case where the tree is higher than the s'chach, and it is a scriptural decree "you shall dwell in sukkot"—and not in a sukkah that is under a tree (Maharsha ibid., and see Pnei Yehoshua ibid., that we do not require a height of ten tefachim).

The Rambam, of blessed memory, has an entirely different approach to this, and this is also the opinion of the Rif, of blessed memory. Namely: according to all the opinions that have been explained, if he lowered the branches and mixed them with the valid s'chach, and the valid is greater than it—it is valid, as has been explained. And this is the explanation of what the Gemara said there, "when he beat them down," meaning: he lowered them. And even if they are attached to the tree. But the Rambam in the Commentary on the Mishnah explains "when he beat them down"—that he cut them from the tree, and then they are nullified by the majority. But if he did not cut them—it is invalid in any case. And behold, Rashi, of blessed memory, brought this explanation and rejected it entirely, for whichever way you look at it: if he cut them—behold they themselves are valid. Furthermore: for we explicitly learned in another Mishnah there (11a) that if he cut them—it is valid, meaning: that it itself is valid s'chach. And the Rambam explains that to make them valid themselves—one must shake them because of "you shall make, and not from that which is already made," as will be explained, and this is the cutting in the Mishnah. But "when he beat them down"—deals with where he did not shake them, and they were not made valid themselves. Rather, the benefit is that it shall be nullified by the valid s'chach by a majority (Beit Yosef). And this is also his words in his great work, chapter five, law 12, and this is also the approach of the Rif, of blessed memory. But otherwise, it is invalid in any case. And the Baal HaMaor explains "when he beat them down"—the language of beating the aravah, meaning: when he beat the branches of their leaves, and revealed his intent that he does not desire that they join the validity of the sukkah, for then they do not invalidate. But otherwise—it is invalid in any case. And these two opinions were also not brought in the Tur and Shulchan Aruch. Nevertheless, for the law, everyone must be concerned for the words of these, our teachers. (And the Maggid Mishneh explained that according to the Rif and the Rambam the explanation of "when he beat them down"—is that he separated them from one another, and when mixed it is invalid, see there. But from the Commentary on the Mishnah it is explicitly proven like the words of the Beit Yosef, and more will be explained on this. And the Rashba in his novellae wrote like the Maor, see there.)

If he cut the tree to make it fit for use, so that it itself should be part of the sechach – it is kosher. And specifically if he shakes it, which is to say: he lifts each branch, each one individually, and places it for the sake of shade, and then goes back and lifts another and places it so, and so with all of them. And if he did not do so – it is invalid, because of "you shall make, and not from that which is already made," meaning: any matter that was done in a state of invalidity, even though he subsequently repaired the invalidating factor, such as here where the invalidity was because it was attached, and he repaired this by cutting it from the tree, nevertheless if he did not perform an action upon the body of the sechach afterward – it remains made in a state of invalidity. And so it is regarding several mitzvot. And specifically when the invalidity was in the body of the sechach is a new action required, such as being attached and the like. But if the invalidity was in a matter external to the sechach, such as if he made a sukkah inside a house, or under a tree, and afterward he demolished the house or cut the tree – he does not need to perform a further action upon the body of the sechach. For there is no issue of "you shall make, and not from that which is already made" in this, since the sukkah itself was made in a fit manner – he removes the external invalidity and it becomes kosher. And according to this, in our built sukkot where we open the roof on Sukkot, if he laid the sechach while the roof was covered over it – the sechach is not invalidated, and he opens the roof and it becomes kosher. Nevertheless, initially we are scrupulous to open the roof at the time we lay the sechach. And there is one who is stringent even after the fact (Bach), and see in section 25.

And know that Rashi, of blessed memory, wrote according to his approach, that when the tree's sun is greater than its shade, and the sukkah's shade is greater than its sun – it is kosher. For we learn from here that one may place s'chach over the roof laths called lattes, even though they are close to one another within less than three handbreadths, since their sun is greater than their shade. Thus far his words. That is to say, that the lattes built into the roof are invalid s'chach, for it is a building. However, this is like a tree whose sun is greater than its shade. And when the s'chach's shade is greater than its sun – it is kosher. And behold, according to this, for the second opinion that it is not kosher with a tree unless it is opposite the space between the s'chach, or that even when the s'chach opposite the tree is removed there would still remain its shade greater than its sun, if so, regarding these lattes, if the s'chach opposite the lattes is removed and there remains its sun greater than its shade – it is invalid. And indeed, the Tur wrote so according to this opinion, as will be explained with the help of Heaven.

This is the wording of the Tur, after the words of the Ra'avyah and Ra'avan who are the proponents of this view: And because of this, there are those who are stringent not to make a sukkah below in a house under the roof, even though they removed the tiles, since there still remain the thin wood slats upon which the tiles are placed, even though there is a large space between the slats greater than the slats themselves. Thus far his words. Because all the schach that is opposite them is invalid, and perhaps when they are removed from the calculation of the schach – its sunlight will remain greater than its shade. But I do not understand this, for since this space is greater than the slats – it follows that even without this, its shade would be greater than its sunlight. And it is possible that although the space is greater than the slats, nevertheless, even in the space there are gaps in the covering of the schach, and perhaps in total its sunlight will be greater than its shade.

And he wrote further that our teacher Yechiel was accustomed, when he would make his sukkah in a house under the roof where the tiles were removed, that he would stand reeds from the s'chach up to the roof to mix the two s'chachs together, so that they would be one s'chach. Thus far his words. That is to say: for even according to this opinion, when he lowered the branches—it is kosher, and since he stands the reeds—it is as if he lowered them. And it is understood of itself that the intention is in a manner where the laths will not be discernible on their own, for it has been explained that we require them to be mixed together (Bach, and the Beit Yosef wondered at this).

The Tur himself disagrees with this entirely, for it does not require any rectification at all. This is his wording: It seems to me that it is permitted, for even according to the one who disqualifies when he did not intermingle them, that is specifically when its shade is greater than its sun, and nevertheless there is airspace between the valid s'chach (and as I have written). Therefore, when we consider the valid s'chach that is opposite the tree as if it were not there—it joins with the airspace within it, and its sun will be greater than its shade. But in a sukkah that is entirely covered, and has no airspace at all, even if we consider the valid as if it were not there—its shade would still remain greater than its sun, and it is permitted. And the author of the Ittur permitted it as well for another reason, for he said: Since he removed the tiles, the remaining wood does not have the status of invalid s'chach. For we learned in a Mishnah (15a): A ceiling that has no plaster, one loosens it or removes one from between. Thus far his words. And his proof is either from "loosens," and here where he removed the tiles it is like loosening the laths themselves (Beit Yosef); or from "removes one from between," and he holds that the rest were also validated by means of that which was removed. And here too, by means of removing the tiles—the laths were also validated (Bach and Maharalach). And the first opinion holds that loosening is required for each thing individually, and in "removes one from between"—only that place alone was validated. And so it is proven in the Gemara ibid. And if so, there is no proof from this. (And the Ittur holds that in the Gemara it is only according to Rabbi Meir, and not according to Rabbi Yehuda, as the Bach wrote, see there. And examine and you will find it simple.)

However, for the halakhah, our teacher, the Beit Yosef, ruled accordingly in section 3, and this is his wording: One who makes a sukkah below in a house, under the roof where they removed the tiles, even though the thin pieces of wood upon which the tiles rest still remain—it is kosher. Thus far his words. And it appears in my humble opinion clear that our teacher, the Beit Yosef, agreed to this law based on the reasoning of the Tur: that since even if the laths are removed—its shade would still remain greater than its sun. And if so, the permissibility of the laths does not require the removal of the tiles like the words of the Ittur. And there is one who understood his intent, that his reasoning is because of the removal of the tiles. Therefore, if there were previously laths without a roof—they have the status of invalid s'khakh (Magen Avraham, subsection 6). And according to my humble opinion, even with the removal of the tiles it is called invalid s'khakh, for perhaps the halakhah follows the first opinion, as I have written. Rather, the permissibility is that even if it is invalid s'khakh—there will remain even without the place of the laths its shade greater than its sun, according to the opinion of the Tur as I have written. (And as for what he challenged the Bach, who required that there be more than three tefachim between the laths—certainly it is so, for we do not say lavud to be stringent. However, the main intent of the Bach is not to rely on the permissibility of the Ittur, see there. But the permissibility of the Tur is simple and clear, and only in this manner does the Beit Yosef permit. And the Taz, subsection 3, elaborated to reject this, and innovated that the prohibition of the laths is due to the reason of two layers of s'khakh, see there. And his words are astonishing, for what relevance do the thin pieces of wood have to two layers of s'khakh? And the author of Chemed Moshe already rejected his words, see there. Examine it and you will find it simple.)

And know that all the laws that were explained regarding a sukkah under a tree, according to the opinions that were explained – this is all from the source of the Mishnah: One who makes a sukkah under a tree is as if he made it inside a house. And they inferred in the Gemara that this is when the tree's shade is greater than its sunlight, for then in any case it is invalid. But when the tree's sunlight is greater than its shade and he beat them down – it is valid. And the interpretation of "beating them": according to Rashi, Tosafot, the Rosh, and the Tur – the meaning is that he lowered its branches down and mixed them with the sechach. And according to the Rambam, the interpretation is that he cut them. And according to the Maor, the interpretation is when he beat the leaves from the branches. And the Rashba, of blessed memory, in his novellae agreed to this, and wrote that thus the Geonim interpreted, see there. And there is one who wished to say that the intention of the Rambam is also like the Maor (Pnei Moshe on the Yerushalmi there), but it does not appear so. And also our teacher, the Beit Yosef, in his great book and in the Kesef Mishneh did not interpret it so, but rather as I have written. (And the Maggid Mishneh interprets the Rambam like Rashi and Tosafot, and it is not understood at all. And see Lechem Mishneh. And examine closely and you will find it easy.)

And behold, we further learned there in the Mishnah (11a): If one trained a vine or a gourd over it, and placed s'chach on top of it—it is invalid. But if the s'chach was more than them, or if he cut them—it is valid. And the Gemara brought this Mishnah in the matter of "under a tree," and explained it as well: when is it valid if the s'chach was more than them? Specifically when he beat them down. And this is, according to Rashi, the Tosafot, and the Rosh, lowering; and according to the Rambam, cutting; and according to the Me'or and the Rashba, the beating down of the leaves. And one should not raise a difficulty against the Rambam: behold it teaches "or if he cut them"—implying that previously the intention was without cutting. And indeed, they raised this difficulty against him. However, he, of blessed memory, in the Commentary on the Mishnah explained that this is the explanation: for this "or if he cut them," they explained there in the Gemara that this also requires shaking, for if not so, it is invalid because of "make it, and not from that which is already made." And if so, the first clause deals with cutting without shaking. And this "or if he cut them" is with shaking. And the matters can be explained, for behold, without shaking, the cutting is not so recognizable, as is understood. And this is why it says "or if he cut them," meaning: that the cutting is recognizable, and that is by means of shaking.

And there is a great question regarding this: Since the two mishnayot are one matter, why do I need both? And behold, in truth, according to the method of Rabbeinu Tam and the Geonim that we brought in section 7, it works well, as the Rashba and the Ran wrote, that Rabbeinu Tam derived from here his distinction between where the tree preceded the sechach—where we then require the laws that have been explained—and where the sechach preceded the tree, where even if the tree's shade is greater than its sunlight, it is kosher. And this is why the Mishnah was precise to say: If one trained a vine over it... and placed sechach on top of it—that the vine preceded. But if the sechach preceded, it is kosher. And in such a case, that of the tree also deals with where the tree preceded. And if so, it teaches us a great novelty, which we would not have known so clearly from the first Mishnah. And behold, the Rashba and the Ran rejected his words, see there. And as the Tur and the Shulchan Aruch ruled, there is no distinction whether the tree preceded or the sechach preceded, as has been explained. But if so, it is difficult: why do I need both? And in truth, the Tur and the Shulchan Aruch did not bring this Mishnah of "If one trained a vine over it" at all, because there is no novelty in it. And it is difficult: why do I need both?

And behold, in the Gemara (9b) regarding the Mishnah of "under the tree" where it is established as a case where he beat them down, it asks: This was also taught regarding "one who trained [the vine]," etc.? And it answers: What might you have said? That these words apply only post facto, but ab initio, no? It comes to teach us. That is to say: from the Mishnah of "one who trained" we only heard post facto. But from the Mishnah of "under the tree" we knew even ab initio, see there in Rashi. And according to this, it could seemingly be said that for this reason the two Mishnayot are necessary. But it is impossible to say so. For since it previously informed us that it is permitted even ab initio—all the more so post facto. And it is difficult to say that from the redundancy of the Mishnah we heard this, for such is not the way of the Mishnayot. Furthermore: if so, from where does Rabbeinu Tam derive his ruling? Perhaps it comes only for ab initio and post facto? Rather, certainly there is some other new ruling in this.

Therefore, it appears in my humble opinion that, on the contrary, according to most of our teachers, this Mishnah teaches us that there is no difference whether the tree preceded the sechach or the sechach preceded the tree, unlike the words of our teacher Tam, of blessed memory. For behold, the Rashba and the Ran explained that which we learned in the Mishnah: "If one trained a vine or a gourd over it and placed sechach on top of it" — it is as if it said "or placed sechach on top of it." That is to say: he trained it over the sechach, where the sechach preceded, or he placed sechach on top of it, where the tree preceded, for it is all one; see there. And this is what this Mishnah innovated. For the first Mishnah, "One who makes his sukkah under a tree," implies explicitly that the tree preceded. And so that you should not say that if the sukkah preceded it is valid in all cases, it teaches us that this is not so, and they both have the same law.

And behold, the Rambam there wrote the two mishnayot, and this is his wording: One who makes his sukkah under a tree, it is as if he made it inside a house. If one trained the leaves of trees and their branches over it, and placed schach over them, and afterwards cut them, if the schach was more than them – it is kosher. And if the schach that was kosher from its beginning was not more than them – he must shake them after their cutting, so that it shall be made for the sake of a sukkah. If one mixed a material with which one may provide schach with a material with which one may not provide schach, and provided schach with both of them, even though the kosher is more than the invalid – it is invalid. If he provided schach with this by itself and with that by itself, this one alongside that one… and there is not in one place a width of three tefachim of schach – it is invalid… Thus far his words.

And according to the Rambam, the two mishnayot are both necessary. For in the first mishna, it teaches us that under a tree it is invalid in all cases, even if the sukkah's shade is greater than its sunlight, and the tree's sunlight is greater than its shade, since he did not cut them. And that which the Gemara establishes as being when he beat them down—which according to the Rambam is "cutting them"—does not refer to the mishna, but rather to the statement of Rava there (and that which it asks, "we have learned this in a mishna: if one trained [a vine]..."—this also refers to Rava, as Rashi wrote). And the second [mishna] teaches us that when he cut them and the s'chach is more than them, it is kosher; however, they themselves are still invalid because of "make it, and not from that which is already made." And if the s'chach was not more, he must shake them so that they themselves become kosher. And afterward it says: if one mixed a material with which one may cover, etc. And this law is not mentioned anywhere in the Gemara; rather, the Rambam on his own comes to resolve: how could we say that even if the tree's sunlight is greater and the sukkah's shade is greater, it is invalid when he did not cut them? For we maintain the rule that "a breach that is equal to the standing part is permitted," and at most it is like "entering and exiting," as will be explained. If so, why is it invalid here? And for this, the Rambam resolves that this is when the valid part is by itself and the invalid part is by itself, and not when they are mixed together, meaning that both are one under the other. And the reason for the matter seems to me to be: for this halacha was told to Moses at Sinai also regarding partitions. And just as with partitions, the standing part is by itself and the breach is by itself, so too with s'chach. And only when they were cut but not shaken, where the invalidity is only because of "make it, and not from that which is already made," in this they were lenient to follow the majority (and with this, all the words of the Rambam are explained and straightened).

From all that has been explained, we have learned that a mixture of pasul schach with kosher schach is not similar to any mixture of a forbidden substance with a permitted one. For there, the more it is mixed and is not recognizable, the better it is for bitul, but regarding schach it is exactly the opposite. And according to the Rambam, it is completely pasul when they are in a mixture together, as I have written. And even according to the other commentators, who interpret "chavatah" as lowering and bitul, it is also worse than without a mixture, for "the breached is like the standing," and in mixtures we require a majority, as I wrote in section 3 in the name of the Ran, of blessed memory, unlike the words of the one who says the matter of bitul applies here. It has also been explained that there is no difference whether the pasul is placed upon the kosher, or the kosher upon the pasul, for in the Mishnah regarding a sukkah under a tree the pasul is upon the kosher, and the Mishnah regarding one who trained a vine the kosher is upon the pasul, and they have the same law. This is in accordance with the words of our teacher, the Rema, which we cited in section 6, and unlike the words of the one who rejected his words (and perhaps because of this there is a second Mishnah).

Our teacher, the Rema, wrote at the end of this siman: And so too it is permitted to make the sukkah beneath roofs that are made to open and close. And it is permitted to close them because of the rains, and to return and open them. And even on Yom Tov it is permitted to close them and open them if they have hinges that one closes and opens with them, and there is in this neither the issue of demolishing and building a tent on Yom Tov, nor the issue of "you shall make it" and not from that which is already made. Only that he should be careful not to sit beneath them while they are closed, for then the sukkah is pasul. Thus far his words. And the reason for the matter is that any roof that opens by means of hinges is like a mere opening. And it appears to me that even according to the system of Rabbeinu Tam and the Geonim that we brought in section 4, that whenever the kosher schach preceded the pasul—the pasul does not disqualify it even when its shade is greater than its sun. And here, if they placed the schach while the roof was open according to the custom—behold the kosher schach preceded. And nevertheless, when he closes the roof it is pasul, for this is like a sukkah that is inside the house, whose disqualification is due to the scriptural decree "you shall dwell in sukkot"—and not in a house of all the days of the year, and not solely from the perspective of pasul schach over kosher schach.

And behold, we have already written in section 10 that regarding anything that is not in the sechach itself—the principle of "make it, and not from that which is already made" does not apply. Therefore, one may place the sechach even when the roof is not open; see there. And there is one who says that here too, one must specifically place the sechach at the time the roof is open, for only when one actually removes the roof afterward is that itself called an act, and not when one opens it, as this is not called an act. And he does not distinguish between when the disqualification is in the sechach itself and when it is not in the sechach, like the opinion of our teacher, the Rema. Rather, in all manners, "make it, and not from that which is already made" applies. However, in the actual removal of the roof, it is considered a complete act at this time to make it valid. And one cannot say regarding this "and not from that which is already made" in a state of disqualification, for this is not a past act, but rather now it is a complete act. And it is not so regarding the opening of the roof. Therefore, one should be careful not to place the sechach except at the time the roof is open, and such is the custom and one should not change it. And if one placed the sechach at the time the roof was closed—he should go back and open it, and shake all the sechach, which means to go back and lift it and place it down.

And there is one of the great authorities who said that regarding the opening of the roof above the sukkah, as is our custom – one should not position the open roof in the middle of the sechach, but rather from the side. And his reasoning is that we say (14b): If one turned them on their sides, it is invalid; that is to say, a board of four tefachim, even if one turned them – it is forbidden to cover with it because of the decree of a ceiling, as I will write at the end of siman 629. And if so, here, the entire width of the open roof standing on its side, we consider it as if it were placed upon the roof (Panim Me'irot, cited in Sha'arei Teshuva). But the custom is not so, and the reasoning is not correct, for the entire prohibition is because of the decree of a ceiling, as will be explained there. And since he is occupied with nullifying the ceiling, for which reason he opens it – the decree of a ceiling does not apply to it. This is not the case there, where one covers with them – the decree of a ceiling applies. (And there is a proof for this from that which we say 15a: They disagree regarding the nullification of a ceiling. And according to Rabbi Yehuda following Beit Hillel, since it was nullified – there is no longer cause to decree, as Rashi wrote. And all the more so in a case such as this, where he raises it and stands it on the side so that only the valid sechach remains, that there is no cause to decree even according to those who disagree. And all the more so since the halacha is like Rabbi Yehuda following Beit Hillel. And examine and you will find it simple.)