Maghen Abraham - Thoughts From Mayer Sasson

If one built a Succah in a public domain, may he sit in it and fulfill thereby his commitment on Succot?  If one built a succah either unintentionally or intentionally, on land belonging to his friend, must he destroy the building and return the land or may he just pay his friend for its worth?

And what is the Halacha when the land belongs to a Gentile?

Answer: In our sefer (III,30) we wrote at length explaining these questions. Here is a brief summary: In Masechta Succah the Sages ruled: If one stole his friend's succah and sat in it, he has fulfilled his obligation to sit in the succah. The Gemara explains: This does not apply to a person who stole his friend's schach, rather the place. He attached his friend, took him out of the succah and sat in it. The reason is that the land is not stolen and still belongs to his friend and it is as if the thief borrowed the succah from his friend – and the Sages maintained that a borrowed succah is permissible. The Poskim wrote that lichatchila- a priori one should not sit in his friend's succah without him knowing about it. The RMA added that a priori one should abstain from building a succah on land belonging to the public but bidieved –a posteriori - if he did and sat in it, he has fulfilled his obligation.

 What happens when a person stole branches from his friend and put it as schach on his succah? Or he stole a beam and used it to build his succah? Has he fulfilled his obligation? Likewise, what is the Halacha when a person stole a beam of wood and used it in a building – does he have to dissemble the building or the succah in order to return the beam or the wood?   Beit Shamai and Beit Hillel disagreed. Beit Shamai maintained: The thief does not have to dismantle the building in order to return the beam but he has to pay its price to the owner. Our Sages ob'm made the Hashavim ruling that if we would make the thieves dismantle the entire building to return the beam they would not return it and therefore determined that it the payment for the beam is sufficient.

This same ruling was also said for a succah whose schach was from stolen property. The thief does not have to dismantle it during the holiday but must pay the price of the branches. Likewise, if one stole a beam or wall and used it a part of the succah.   The Poskim deliberated on the case when a person intentionally built a house on his friend's land – must he dismantle the house and return the land to his friend or can we exempt him as above and may he only pay for the land? The RMA ruled: One who stole land and built large buildings on it must destroy everything and return the land to its owners, for the ruling of Hashavim does not apply to land. We learn that when something is built on stolen land the thief must destroy what he built and return the land to its owners. If the construction was done unintentionally and the landowner himself was not aware that it was his property, the Poskim deliberated on it. Some wrote that in this case the Hashavim rule does apply and the building does not have to be destroyed- the payment should be made to the owners for the land. But most Poskim determined that even if it is unintentional, the building should be dismantled and the land returned to its owners.

The Shoel U'Meshiv answers a question of the Magen Avraham: We have said that a priori one should not build a succah on land belonging to the public. The Magen Avraham questions the custom that took place in his days where they used to build a succah on public property. The public did not necessarily agree to it. Even if say that the Jewish inhabitants of the city agreed, there were Gentiles who did not agree and we are not allowed to steal from Gentiles. The Magen Avraham added a question – How can we make a blessing on such a succah "To sit in the succah"? We do not make a blessing on a stolen succah even if it is kosher. According to the Shoel Umeshiv, if a person builds a succah in a public domain, the Hashavim ruling applies and he does not have to dismantle it because he also has a part in the land, and after the succah was built the public despaired of their right to that land so he is entitled to it to build his succah on it.

The Poskim deliberated at length on the subject.

Conclusion: A. For a person who builds a succah in the public domain there are opinions that he can rely on and he can even make a blessing on it – on condition that he it does not disturb the passersby.  B. A person who builds on his friend's land, unintentionally or intentionally, must destroy what he built and return the land for the Hashavim ruling does not apply to it.

SHABBAT SHALOM!!