A number of years ago I merited to have my brother-in-law come and stay by me for Succos. Unfortunately, we didn’t have enough space for him to stay inside our apartment, so we decided that we would put the succah up a few days before Succos and he would be able to sleep in the succah. The question arose at the time, if perhaps this was a problem of ba’al tosif (the prohibition of adding on to mitzvos and doing more than what halachah dictates). If one sits in the succah on Simchas Torah there is a problem of ba’al tosif. The question is if the same thing applies before Succos. At the time I asked R’ Naftoli Kopshitz shlita and he said that as long as he doesn’t have any kavonah [intention] to fulfil the mitzvah of succah it’s ok, and this is what we did.
Below I would like to discuss this shailah [question] in more depth and go through the various proofs that the poskim bring, and various different opinions, and iy’H we will see that it’s not as simple as it seems.
If One Sits in the Succah On Shemini Atzeres in Eretz Yisroel One Must Do Something to Make It Recognisable that He Isn’t Fulfilling the Mitzvah of Succah
The above question entered my mind due to a halachah the Shulchan Aruch brings in Orach Chaim 666. The Shulchan Aruch writes: “If one wants to eat in the succah on Shemini Atzeres (in Eretz Yisroel) he must open up an area of 4 x 4 of sechach to make a heker [distinction] that one isn’t sitting there to fulfil the mitzvah of succah, to ensure that it doesn’t look like one is adding onto the mitzvah (שלא יהא נראה כמוסיף ).” The Mishnah Berurah (s.k. 5) explains that one doesn’t violate ba’al tosif as he doesn’t intend to fulfil the mitzvah of succah, and when it is not the time of the mitzvah everyone agrees that kavonah is needed to violate ba’al tosif. However, it’s still forbidden on a rabbinic level as it looks like one is adding to the mitzvah.
The Rema adds: “If one wants to eat in the succah after Succos, there is no need to make a heker, as it only looks like adding on to the mitzvah on the eighth day” (the Mishnah Berurah explains, as it is close to the Yom Tov).
Is It Possible to Violate Ba’al Tosif Before Succos, or Is It Only Possible Afterwards?
According to the Rema that the prohibition to eat in the succah after Succos is because Shemini Atzeres is close to Yom Tov, there is room to question what the halachah is regarding erev Succos. On the one hand it’s close to Yom Tov, on the other hand, perhaps ba’al tosif is only applicable if it’s a continuation of the main mitzvah and not if it is before the time of the mitzvah.
The yesod [foundation] of the shailah is: Is the prohibition of ba’al tosif to add onto a mitzvah that one has already fulfilled, and consequently, before one fulfils a mitzvah it’s not possible to transgress. Or, is ba’al tosif related to the chiyuv [obligation], and if one lengthens the time of the chiyuv, even before fulfilling the mitzvah, it’s still possible to violate ba’al tosif.
The Opinion of the Noda B’Yehudah that One Can Violate Ba’al Tosif After the Time of the Mitzvah, Even If One Never Performed the Mitzvah Itself at the Correct Time
The Shu”t Noda B’Yehudah (Mahadura Kamma, Orach Chaim 40) discusses sleeping in the succah on the night of Shemini Atzeres in Chutz La’aretz and he concludes that even if one wasn’t in the succah the entire seven days of Succos, he violates ba’al tosif, unless he makes a heker – for example not making a berachah on the mitzvah of succah. (However, in Shu”t Noda B’Yehudah, Mechon Yerusholayim edition, Likutei He’oras s.k. 5 they bring that the Halachah L’Moshe asks on the above, and says that it’s only possible to violate ba’al tosif if one fulfils the main mitzvah and adds on to it, if one never fulfilled the main mitzvah, and on day eight he sits in the succah for the first time, it’s not considered ba’al tosif at all.)
The Opinion of the Tzofnas Pana’ech, that Ba’al Tosif Before the Time of the Mitzvah is Not Possible
In Shu”t Salmas Yosef (12) the Tzofnas Pana’ech asks, why the poskim don’t mention that one should be careful not to eat in the succah on erev Succos due to ba’al tosif. He answers based on the Ran (end of Pesochim) that a succah before Succos isn’t called a succah, however, after Succos it has the name of succah, and only once the succah is considered a succah can one violate ba’al tosif. (However, not everyone agrees with the Ran.)
Is It Ba’al Tosif to Eat Matzah on Erev Pesach?
The Achronim discuss if one eats matzah on erev Pesach with intention to fulfil the mitzvah, if there is a problem of ba’al tosif. R’ Moshe (Igros Moshe, Vol. 1, end of siman 155) discusses eating matzah on Shabbos when erev Pesach falls on Shabbos, and R’ Moshe brings that a big rov wanted to suggest that doing so is ba’al tosif. R’ Moshe disproves this by showing that if one has intention to fulfil a different mitzvah (the mitzvah of seudas Shabbos) then there is no problem of ba’al tosif. However, R’ Moshe doesn’t simply say that there is no problem of ba’al tosif because it is not yet time for the mitzvah.
Therefore, it would seem that R’ Moshe holds that it’s possible to violate ba’al tosif before the time of the mitzvah has arrived.
Another R’ Moshe
However, in a different Teshuvah (Orach Chaim, Vol. 1, siman 13, d.h. vehanochoin) R’ Moshe proves that it’s not possible to violate ba’al tosif before the time of the mitzvah. He quotes a Rashi in Eruvin (96a) which discusses ba’al tosif by Succos and Rashi writes: דמוסיף שמיני על השביעי – “One adds an eighth day onto the seventh”. R’ Moshe is medayek [makes an implication] that one can only violate ba’al tosif if he is being mosif [adding] onto the mitzvah.
If, however, one sits in the succah on a different day of the year, not immediately following Succos, then it’s not considered adding on to the mitzvah, and one doesn’t violate ba’al tosif. R' Moshe cites R’ Shlomah Kluger (Chochmas Shlomah end of 668) who writes: “If one sleeps in the succah during the year even with intention to fulfil the mitzvah, one doesn’t violate ba’al tosif, as it is not possible to consider it an addition to the mitzvah of succah in the Torah. Only if one sleeps in the succah the day after Succos (Shemini Atzeres) which is connected to Succos like Rashi says: דמוסיף שמיני על השביעי – “One adds an eighth day onto the seventh” is it possible to violate ba’al tosif. We see very clearly that it’s not possible to violate the prohibition of ba’al tosif before the time of the mitzvah.
The Klei Chemdah’s Proof That It’s Not Possible to Violate Ba’al Tosif Before the Time of the Mitzvah
The Klei Chemdah (Vo’eschanon 2, ois 3) discusses the shailah of whether it’s possible to violate ba’al tosif before the time of the mitzvah and he cites proof from a Sifri. The Sifri (Re’ah 13:1) writes:מניין שאם פתח לברך ברכת כהנים, שלא יאמר הואיל ופתחתי לברך, אומר ה' אלוקי אבותיכם וכו', ת"ל דבר, אפילו דיבור לא תוסיף עליו - “How do we know that if a kohen started birchas kohanim he shouldn’t say, since I started to bless I will add, ‘Hashem the G-d of your forefather etc.’, therefore, it says “דבר ”, to teach that one shouldn’t even add words.”
The Klei Chemdah is medayek that the problem is because, הואיל ופתחתי לברך – “the kohen started to bless”, if however, one hasn’t started then it wouldn’t be possible to violate ba’al tosif. And the reason for this is, because ba’al tosif is only applicable if one does the main mitzvah and then adds.
Refutable
However, he writes that we can differentiate between birchas kohanim and other mitzvos. By birchas kohanim there is a halachah that there must be ten people (Megillah 23b), therefore, אין למצוה חלות קודם שיתחיל לברך ברכת כהנים – the mitzvah has no existence before the kohanim recite birchas kohanim, and if the congregation would leave before the kohanim start there would be no mitzvah. Therefore, unless there is a valid birchas kohanim to start with there can’t be ba’al tosif, therefore, the Sifri specifically mentioned that the mitzvah was started. However, by other mitzvos which aren’t dependant on other people, and all they need is the person himself, perhaps it’s possible to violate ba’al tosif even before the time of the fulfilment of the mitzvah.
The Opinion of the Machneh Chaim that If One Fasts on Erev Yom Kippur, There Is No Ba’al Tosif
The Shu”t Machneh Chaim (Orach Chaim 3:44) discusses if one who fasts on erev Yom Kippur to cause himself inuy [affliction] violates ba’al tosif (in addition to missing out on the mitzvah
of eating on erev Yom Kippur), or if perhaps it’s not possible to violate ba’al tosif on inuy as inuy is fulfilled passively (שב ואל תעשה) and not actively.
He writes: It’s only possible to violate ba’al tosif when the addition is carried out together with what is obligatory, such as five parshiyos in the tefillin, five species for the mitzvah of lulav, or if the addition comes after the fulfilment of a mitzvah such as sleeping in the succah on Shemini Atzeres, or doing four matonos [placements of blood on the alter] instead of one. If, however, the addition comes before the fulfilment of the mitzvah, then ba’al tosif isn’t possible. Consequently, if one fasts on the ninth of Tishrei, since the time for the obligation to fast on Yom HaKippurim has not yet arrived, it’s not possible to violate ba’al tosif.
He adds:אטו אם לילה לאו זמן תפילין וציצית וזריקת הדם, ויעשה אדם הלילה לזמן ציצית ותפילין וזריקה האם יעבור על בל תוסיף, דא״ א לעשות דבר שאיני לישנו - “If night time is not a time for wearing tefillin, tzitzis, or sprinkling blood, and one turns the night into a time when he wears tzitzis, tefillin, and sprinkles blood, does he violate ba’al tosif? One can’t turn something non-existent to existent.” He then brings the aforementioned Sifri.
The Proof of the L’Horas Nossan That There Is No Ba’al Tosif Before the Time for the Fulfilment of the Mitzvah
The L’Horas Nossan (Mo’adim Vol. 1, pg. 166) brings a: זכר לדבר שאין בל תוסיף לפני זמן המצוה – “A hint that there is no ba’al tosif before the time of the mitzvah”, from the Gemara in Shavuos (35b) which says: כל הטפל לשם מלפניו נמחק, לאחריו אינו נמחק, שכבר קדשו השם – “Any letters that are secondary to name of Hashem before the name of Hashem may be erased, however, any letters that are after can’t, as they have already been sanctified with holiness of the name of Hashem” (i.e. if one writes, ליי', the ל may be erased. However, if one writes אלקיהם, the הם can’t be erased).
Similarly, the Shu”t Chasam Sofer (Orach Chaim 172) writes that if a boy turns bar mitzvah on motzei Yom Kippur, he doesn’t need to fast during tosefes Yom Kippur [the time added on after Yom Kippur]. דכיון שלא נצטוה בעיקר יוהכ"פ, ממילא אין תוספת בלא העיקר – “Since he wasn’t obligated in the main part of Yom Kippur, he doesn’t need to keep the extra either, as there is no extra without the main part”.
Based on the above, it’s not possible to violate ba’al tosif before Succos, as if one hasn’t yet kept the main mitzvah of succah it’s not possible to add.
Is Saying Haggadah During Mincha on Shabbos HaGadol Considered Ba’al Tosif?
The Rema (430) writes: “The custom is to recite the Haggadah by Mincha on Shabbos HaGadol”. The Biur HaGra argues based on the pasuk, יכול מבעוד יום, from which we learn that the mitzvah of Sippur Yetziyas Mitzrayim only applies on the night of Pesach. From the Gaon there is no proof that there is ba’al tosif before the time of the mitzvah, as the Gaon doesn’t forbid one to say Haggadah, he just argues that there is no room to make an obligation.
However, R’ Yaakov Emden in Mor U’Ketziah and in more length in his Siddur Ya’avatz (in his commentary on the words יכול מראש חודש ) writes that saying Haggadah before Pesach is a problem of ba’al tosif. It seems, that R’ Yaakov Emden holds it’s possible to violate ba’al tosif before the time of the mitzvah.
Is It Ba’al Tosif to Daven Early Ma’ariv and Read Krias Shema?
It’s very common during the summer in places where nightfall is very late that people daven Ma’ariv after plag hamincha and read krias shema, and later on in the evening after nightfall they read krias shema again. Is doing so a problem of ba’al tosif, or do we say that since it is before the time of the obligation it’s ok?
R' Moshe Sternbuch in Shu”t Teshuvos V’Hanagos (2:48) discusses the above and he writes: If one reads shema before nightfall and he reads it again afterwards he violates ba’al tosif. Therefore, he advises that when reading it the first time, one should have explicit intention that he doesn’t want to fulfill the mitzah.
The Talmiday Rabbeinu Yonah (Beginning of Berachos) already writes: שבבית הכנסת יקרא ק"ש עם ברכותיה, ויתפלל ולא יכוון לצאת ידי חובת ק"ש באותה הקריאה, אלא לעמוד בתפילה מתוך דברי תורה – “(When reading early shema in Shul) one should read it with the berachos, and then daven shemonah esrei and he shouldn’t have intention to fulfill the mitzvah of krias shema with this reading, rather, his intention should be to go into shemonah esrei after learning some Torah.”
The Talmiday Rabbeinu Yonah doesn’t mention that it’s a problem of ba’al tosif, however, it seems that that is the underlying problem, as why else should one not have any intention for the mitzvah of shema.
Based on the above, it seems that it is possible to violate ba’al tosif before the time of the mitzvah.
Conclusion
There seems to be a dispute if it’s possible to violate the prohibition of ba’al tosif when sitting in the succah on erev Succos. On the one hand the time of the mitzvah hasn’t arrived, so we can’t say one is adding on to the mitzvah. On the other hand, it’s very close to Succos, and some hold ba’al tosif is possible in such a case as well (and even without intention to fulfil the mitzvah, to the onlookers it looks like one is adding and this may also be a problem). Therefore, the best thing to do would be to have positive intention not to fulfil the mitzvah and to do something to disqualify the succah. If the succah has a roof, the easiest thing to do would be to close the roof (although in Eretz Yisroel where this shailah came up it’s not so common to have a roof).
