If one were to build a structure for the purpose of being a sukkah, but built it higher than 20 cubits (invalid), but then filled in the ground such that the height from the top to the new ground level were less than 20 cubits, would the sukkah now be valid? It looks like a case of ta'aseh v'lo min he'assui, but is it?
Your wisdom in how to resolve this is greatly appreciated.
Shalom
Robert J. Rice, New York, New York USA
This issue was discussed in our Insights to Maseches Sukah. We have copied the relevant portions below.
Best wishes,
Kollel Iyun Hadaf
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Sukah 11
1) HALACHAH: "TA'ASEH V'LO MIN HE'ASUY"
OPINIONS: The Gemara discusses various situations in which Sechach was placed upon the Sukah in such a way that the Sukah is rendered invalid (for example, the Sechach was attached to the ground (Mechubar), or it was not placed upon the Sukah for the sake of providing shade (l'Shem Tzel; see Rashi 12a, DH Chada). The Gemara teaches that in such cases, in order to make the Sukah valid it does not suffice merely to cut the Sechach from the ground (in a case of Mechubar) or to have intention that, from now on, the Sechach should be for the sake of shade (when it was placed there for a purpose other than for shade). Rather, one must remove all of the pieces of the Sechach and place them back on the Sukah with the proper intent. The requirement for active placement, with proper intent, of valid Sechach is called, "Ta'aseh v'Lo Min he'Asuy," and it is cited as the Halachah by the SHULCHAN ARUCH (OC 626:2).
What is the Halachah in a case of a Sukah that is invalid not because of an inherent factor in the Sechach, but because of external factors? For example, when one corrects a Sukah that was taller than 20 Amos, or that was built underneath a tree or inside of a house (he raises the floor of the tall Sukah such that its Sechach is within 20 Amos from its floor, or he removes the tree or roof which covered the Sukah), does he need to lift up the Sechach and return it in order for the Sukah to be valid?
(a) The HAGAHOS ASHIRI (1:23) cites RABEINU BARUCH of Regensburg who asserts that the rule of "Ta'aseh v'Lo Min he'Asuy" applies in such cases, and one must lift up the Sechach in order to validate the Sukah.
(b) However, RABEINU YITZCHAK HA'LAVAN (cited by the Hagahos Ashiri), the KOL BO (cited by the Darchei Moshe, beginning of OC 626), and RABEINU ELCHANAN (cited by the Beis Yosef, end of OC 626) rule that it is not necessary to do anything to the Sechach in these cases. The Sukah becomes valid as soon as the height is lessened or the tree removed. They reason that the only situation in which Sechach must actively be lifted up and returned is when the Pesul is inherent in the Sechach itself (such as Sechach that was Mechubar, or that was not placed there l'Shem Tzel). If the Pesul is not inherent in the Sechach but is in some other feature of the Sukah, then it suffices to correct that other feature. The Kol Bo adds that since the Pesul is not in the Sechach, the corrective act of "Ta'aseh" (the significant act that is required when one makes a Sukah) needs to be done only in the part of the Sukah that is invalid.
This opinion is cited as the Halachah by the Shulchan Aruch (OC 626:2-3, and Mishnah Berurah there).
The Halachah mentioned above involves a case of a Sukah built inside of a house. The Acharonim discuss a third type of case -- Sechach that is put into place underneath a removable roof (one that can be rolled up or lifted up with a crank or other mechanism). In such a case, after the roof is removed from above the Sechach, must the Sechach be completely re-laid in order for the Sukah to be valid?
The MAHARIL (cited by the BACH, end of OC 626) writes that the Halachah in this case is the same as the Halachah in the case of a Sukah built inside of a house. Once the invalidating factor is corrected, no other action is necessary. Nevertheless, the Maharil quotes a "Ga'on Echad" who says that in this case one must lift up each piece of Sechach and re-lay it. The Bach cites the MAHARSHAL who sides with this ruling.
However, it is not clear why the Ga'on Echad and Maharshal differentiate between this case and the previous case.
The Bach suggests that the Ga'on is stringent in this case because the Sechach cannot be called "inherently valid Sechach" before the roof is removed, because the Sechach is not part of a complete, independent Sukah. Placing branches beneath a roof does not make the room a Sukah. This case cannot be compared to a complete Sukah with its own walls and Sechach, built underneath a tree or inside of a house, because the invalidating factor is, to a certain degree, inherent in the Sechach itself.
The MAGEN AVRAHAM offers a different explanation. He explains that lifting up a removable roof by pulling it up with a rope is not considered a significant action. As mentioned earlier (see (b) above), the Kol Bo maintains that even if the invalidating factor is not in the Sechach itself, one must perform a significant act to make the Sukah valid. The lifting of such a roof does not constitute a significant act.
HALACHAH: In the case of Sechach laid under a lift-up roof, the MISHNAH BERURAH (OC 626:18) requires that the Sechach be lifted up and returned to its place after the roof is moved.
This requirement applies, however, only when the Sechach was put into place while the roof was still in position. If the Sechach was put into place after the roof was removed (and the Sukah, at that moment, was valid), then even if the roof is later lowered back onto the Sechach (for example, to protect the Sukah from the rain), it suffices merely to lift off the roof again in order for the Sukah to be valid (Mishnah Berurah 626:19).