נשים ועבדים וקטנים פטורין מן הסוכה. קטן שאינו צריך לאמו חייב בסוכה. מעשה וילדה כלתו של שמאי הזקן ופיחת את המעזיבה וסכך על המיטה בשביל קטן.
Women, slaves and minors are exempt from the obligation of sukkah, but a minor who is not dependent on his mother is bound by the obligation of sukkah. It once happened that the daughter-in-law of Shammai the Elder gave birth, and he broke away the plaster of the roof and put sukkah-covering over the bed for the sake of the minor.
Manuscript evidence
- וקטנים – Missing in the Munich MS.[1][1] On this omission FOX, Mishnayot in Massekhet Sukkot, 67, citing Epstein’s comment that it is unusual to first state “minors” by itself for the exemption and subsequently to write that “a minor who is not dependent upon his mother is obligated [to observe the commandment of] sukkah,” maintains that there is some justification for seeing this as the primary version.
General and feminist observations
The mishnah encompasses two halakhot and one story. The first halakhah exempts women from the commandment of sukkah by putting them in the same category as slaves and minors. The second halakhah excludes “minors” who do not require their mothers from the general exemption. The story presented is used as a halakhic precedent, and appears to contradict the first halakhah. All three parts of this mishnah are intrinsically tied to issues of women and gender. I shall discuss each of these separately and then draw conclusions about their relationship one to the other.
The first ruling refers to the exemption of women, slaves and minors from the sukkah commandment. The Mishnah contains several other rulings exempting women, slaves and minors as a group from various commandments. Thus, they are not required to read the Shema, don tefillin (mBer 3:3), participate in the quorum for saying grace after meals (mBer 7:2) and form an association for eating the Passover sacrifice (mPes 8:7). Moreover, the Mishnah maintains that seizure (for the contribution of the half-shekel) was to be executed against “Levites and Israelites, converts, and freed slaves,” but not against “women, slaves and minors” (mSheq 1:3).[1]
Several halakhot in the Tosefta also group women with slaves and minors in order to exempt them from various commandments. We learn that “women, slaves and minors are exempt and do not fulfill the obligation for others” (אין מוציאין את הרבים ידי חובתן) see tRhSh 2:5; tMeg 2:7) regarding blowing the shofar, reading the megillah and reciting grace after meals. Particularly telling in this respect is the way this issue is related in tRosh ha-Shanah:
[1] These rulings will be discussed in detail in the feminist commentaries on Berakhot (FCTB I/1), Pesahim (FCTB II/3), Sheqalim (FCTB II/4), and Rosh ha-Shanah (FCTB II/7).
The first ruling refers to the exemption of women, slaves and minors from the sukkah commandment. The Mishnah contains several other rulings exempting women, slaves and minors as a group from various commandments. Thus, they are not required to read the Shema, don tefillin (mBer 3:3), participate in the quorum for saying grace after meals (mBer 7:2) and form an association for eating the Passover sacrifice (mPes 8:7). Moreover, the Mishnah maintains that seizure (for the contribution of the half-shekel) was to be executed against “Levites and Israelites, converts, and freed slaves,” but not against “women, slaves and minors” (mSheq 1:3).[1]
Several halakhot in the Tosefta also group women with slaves and minors in order to exempt them from various commandments. We learn that “women, slaves and minors are exempt and do not fulfill the obligation for others” (אין מוציאין את הרבים ידי חובתן) see tRhSh 2:5; tMeg 2:7) regarding blowing the shofar, reading the megillah and reciting grace after meals. Particularly telling in this respect is the way this issue is related in tRosh ha-Shanah:
הכל חייבין בתקיעת שופר: כהנים, לוים, ישר', גרים ועבדים משוחררים, נתינין וממזרים, סריס אדם וסריס חמה, פצוע דכה וכרות שפכה, כולן חייבין ומוציאין את הרבים ידי חובתן. ומטום ואנדרגינס חייבין ואין מוציאין את הרבים ידי חובתן. אנדרגינס מוציא את מינו ואין מוציא את שאינו מינו. טומטום אינו מוציא לא את מינו ולא את שאינו מינו. נשים ועבדים וקטנים פטורין ואין מוציאין את הרבים ידי חובתן.
All are obligated regarding the sounding of the shofar: priests, Levites, Israelites, converts, freed slaves, disqualified priests, netinim, mamzerim, a eunuch made by man, a eunuch made by nature, one who has crushed testicles, and one whose penis has
been cut off – all of them are obligated and [therefore] carry out the commandment on behalf of the community. A tumtum (טומטום – one of undefined sexual traits) and an androgynus (אנדרוגינוס – one who bears the traits of both sexes) are obligated to carry out the commandment on behalf of the community. A tumtum carries out the obligation on behalf of one of his own kind, but does not carry out the obligation on behalf of one who is not of his own kind. An androgynus carries out the obligation neither on behalf of his own kind nor on behalf of one who is not of his own kind. Women, slaves and minors are exempt and they also do not have the power to carry out the obligation on behalf of others.
According to this source, we may conclude that women, slaves and minors indubitably possess the most inferior status in the Jewish social ladder, lower than persons of a doubtful sexual identity, since only they are totally excluded from observing these commandments. Conversely however, the Tosefta also cites a dispute concerning the reciting of grace after meals and fulfilling this requirement on behalf of others which also concerns these three categories:
נשים ועבדים וקטנים פטורין ואין מוציאין את הרבים ידי חובתן. באמת אמרו: אשה מברכת לבעלה, בן מברך לאביו, עבד מברך לרבו.
Women, slaves and minors are exempt and do not fulfill the commandment on behalf of others. In truth, they said: A woman recites the blessing for her husband, a son recites the blessing for his father, a slave recites the blessing for his master.
This text suggests that the question of who can and who cannot fulfill an obligation on behalf of whom was not a cut and dry case.
The second halakhah in our mishnah excludes “minors” who do not require their mothers from the general exemption of residing in a sukkah. The definition of a minor who does not require his mother is rather vague since the Mishnah does not cite any quantitative age, size, or developmental criteria (such as the physical ability to walk, talk, be toilet trained or the attainment of a particular intellectual level). This definition was apparently formulated in order to indicate the connection between the exemption of minors and that of women, which was mentioned in the previous halakhah. In other words, minors are exempted from the commandment as long as they require their mothers – women – who are themselves exempt.
The story which is then presented in the mishnah, appears to contradict the first halakhah: “women, slaves and minors are exempt [from the commandment of] sukkah.” The gemara explains this apparent contradiction by claiming that the mishnah is missing the words “and Shammai is stricter,” which indicate that Shammai disagrees with this halakhah. These words would have apparently been added after the second halakhah in order to dispute the ruling that only minors who do not require their mothers are obligated to observe the commandment of sukkah. Shammai believed that even a newborn infant is required to dwell in a sukkah. Therefore he added the roof-covering for his grandson. Yet Tal Ilan, citing I. Sonne,[1] believes that the words “for the sake of the minor” were added to the mishnah at a later period in order to adapt it to the Babylonian tradition (Shammai believed that children were also obligated and he therefore disagreed with this tradition). She claims that “originally Shammai’s actions were reported to refute the first ruling, namely that women are exempt from residing in the sukkah, by allowing the parturient mother to participate in the commandment.”[2]
Having presented the components of the mishnah, I will now explore its contents in depth. The comparison of women with others exempted from fulfilling the commandment on behalf of their fellows leads to the conclusion that women were an exceptional case in the halakhic discussion. A slave is not a legal entity since s/he is not sovereign for his or her actions. Likewise, a minor is not a legal entity since s/he does not comprehend his or her actions. Since women resemble neither slaves nor minors in their judicial status, we may well ask why were they grouped together with those having the lowest rank and exempted from the abovementioned commandments (sukkah, megillah and shofar) as well as from fulfilling these commandments on behalf of others. Feminist scholars, who have explored the issue of women’s exemption from rituals or positive timebound commandments, usually proposed gender-based-discrimination explanations for these exemptions, such as the categorization of women as property, the desire to distance them from religious rituals, and the desire to bar women from participation in public life or leadership roles.[3] Yet such explanations are only relevant to the exemption from commandments connected to the public realm, as for example, blowing the shofar or reading the megillah. In these cases, associating women with slaves and minors and removing them from other classes in Jewish society can testify to a desire to remove them from the public sphere. However, the commandments of consuming the Pesah sacrifice, of reciting grace after meals and of dwelling in a sukkah are observed in the private domain, at home with one’s family. Regarding the matter of the Pesah sacrifice association, the Tosefta itself provides a reason for the exemption of women, slaves
and minors (“so as not to increase frivolity [תפלה] “[tPes 8:7]); and, as we have seen, in the matter of grace after meals, there is a dispute as to whether someone who is exempt can fulfill the commandment on behalf of others. I will therefore here endeavor to determine the reasons for the exemption of women from sukkah, the time period when this halakhah was formulated and the reason for the Mishnah’s lumping of women together with slaves and minors.[4]
Another source can help explain women’s exemption from the Sukkah. I present here our mishnah, as it compares with its parallel in the Tosefta:[5]
The second halakhah in our mishnah excludes “minors” who do not require their mothers from the general exemption of residing in a sukkah. The definition of a minor who does not require his mother is rather vague since the Mishnah does not cite any quantitative age, size, or developmental criteria (such as the physical ability to walk, talk, be toilet trained or the attainment of a particular intellectual level). This definition was apparently formulated in order to indicate the connection between the exemption of minors and that of women, which was mentioned in the previous halakhah. In other words, minors are exempted from the commandment as long as they require their mothers – women – who are themselves exempt.
The story which is then presented in the mishnah, appears to contradict the first halakhah: “women, slaves and minors are exempt [from the commandment of] sukkah.” The gemara explains this apparent contradiction by claiming that the mishnah is missing the words “and Shammai is stricter,” which indicate that Shammai disagrees with this halakhah. These words would have apparently been added after the second halakhah in order to dispute the ruling that only minors who do not require their mothers are obligated to observe the commandment of sukkah. Shammai believed that even a newborn infant is required to dwell in a sukkah. Therefore he added the roof-covering for his grandson. Yet Tal Ilan, citing I. Sonne,[1] believes that the words “for the sake of the minor” were added to the mishnah at a later period in order to adapt it to the Babylonian tradition (Shammai believed that children were also obligated and he therefore disagreed with this tradition). She claims that “originally Shammai’s actions were reported to refute the first ruling, namely that women are exempt from residing in the sukkah, by allowing the parturient mother to participate in the commandment.”[2]
Having presented the components of the mishnah, I will now explore its contents in depth. The comparison of women with others exempted from fulfilling the commandment on behalf of their fellows leads to the conclusion that women were an exceptional case in the halakhic discussion. A slave is not a legal entity since s/he is not sovereign for his or her actions. Likewise, a minor is not a legal entity since s/he does not comprehend his or her actions. Since women resemble neither slaves nor minors in their judicial status, we may well ask why were they grouped together with those having the lowest rank and exempted from the abovementioned commandments (sukkah, megillah and shofar) as well as from fulfilling these commandments on behalf of others. Feminist scholars, who have explored the issue of women’s exemption from rituals or positive timebound commandments, usually proposed gender-based-discrimination explanations for these exemptions, such as the categorization of women as property, the desire to distance them from religious rituals, and the desire to bar women from participation in public life or leadership roles.[3] Yet such explanations are only relevant to the exemption from commandments connected to the public realm, as for example, blowing the shofar or reading the megillah. In these cases, associating women with slaves and minors and removing them from other classes in Jewish society can testify to a desire to remove them from the public sphere. However, the commandments of consuming the Pesah sacrifice, of reciting grace after meals and of dwelling in a sukkah are observed in the private domain, at home with one’s family. Regarding the matter of the Pesah sacrifice association, the Tosefta itself provides a reason for the exemption of women, slaves
and minors (“so as not to increase frivolity [תפלה] “[tPes 8:7]); and, as we have seen, in the matter of grace after meals, there is a dispute as to whether someone who is exempt can fulfill the commandment on behalf of others. I will therefore here endeavor to determine the reasons for the exemption of women from sukkah, the time period when this halakhah was formulated and the reason for the Mishnah’s lumping of women together with slaves and minors.[4]
Another source can help explain women’s exemption from the Sukkah. I present here our mishnah, as it compares with its parallel in the Tosefta:[5]
[1] SONNE, “The School of Shammai and Hillel,” 280-281, n. 13.
[2] ILAN, Integrating Women, 68.
[3] See e.g. WEGNER, Chattel or Person, 154; ILAN, Jewish Women, 177; BASKIN, Midrashic Women, 76-77, and recently, ILAN, “Woman as ‘Other’,” [ed.].
[4] See also Chapter 2, Bavli 1/1.
[5] And see further on this in Bavli 2/2 (bSuk 23a-24b).
שלוחי מצוה פטורים מן הסוכה, אף על פי שאמרו: אין שבחו של אדם להניח ביתו ברגל. מעשה בר' אלעאי שהלך אצל ר'
ליעזר ללוד. אמ' לו: מה זה אלעאי, אי אתה משובתי הרגל? לא אמרו: אין שבחו של אדם להניח את ביתו ברגל, משם שנ' "ושמחת בחגך" (דברים טז יד)?
חולים ומשמשיהם פטורין מן הסוכה, ולא חולה מסוכן אלא אף שחושש בעיניו וחושש בראשו. אמ' ר' שמעון בן גמליאל: פעם אחת חשתי בעיניי בקיסרי והתיר לי ר' יוסי בר' שאישן חוץ לסוכה.
Those who are engaged in a religious errand are free from [the commandment of] sukkah. However they said: One is not commended for leaving one’s home during the festival (in this case Sukkot). There was the case of Rabbi Ila‘i, who went to visit Rabbi Eli‘ezer in Lod. (The sage) said to him: What is it with you?
Are you one of those who do not participate in the festival? Is it not said that one is not commended for leaving one’s home during the festival, because it is written: “You shall rejoice in your festival” (Deut 16:14)?
The sick and their care-takers are exempt from [the commandment of] sukkah. Not only those who are in mortal danger but even those who suffer from an eye ache or a headache. Said Rabban
Shime‘on ben Gamali’el: Once, when I was in Caesarea, I became ill with an affliction of the eyes and Rabbi Yosi bar Rabbi allowed me to sleep with my servant outside the sukkah.
From the mishnah, we deduce that those that are sent forth on a religious duty and the sick and those who attend them are exempt from the commandment of sukkah. The Tosefta, which is much more detailed, may reveal the period in which this mishnah was established. Two conclusions may be reached with regard to the first halakhah in the Tosefta, and the story that accompanies it:
1. It indicates that the practice stated clearly in the mishnah, that a religious errand exempts a person from dwelling in the sukkah, was not always firmly established.
2. Rabbi Ila‘i was reprimanded for leaving his home during Sukkot (“home” in this context probably meaning “his wife”[1]). Since Rabbi Ila‘i was a disciple of Rabbi Eli‘ezer, who lived during the Yavneh period (circa 75-100 CE), we can deduce that the halakhic exemption from dwelling in the sukkah due to a religious errand dates back only to a later time, when people were apparently compelled to leave their homes and families even during the holiday because of various economic and social constraints.
From this we may deduce that the mishnah here is a reworking of the Tosefta. In the case of the second toseftan halakhah (2:2), which exempts the sick from residing in sukkot, the mishnah again appears to be a reworked version, summarizing and generalizing it. As in the previous one, the halakhah in the Tosefta is also very detailed, although no reservations are added. It is accompanied by a contradictory story dated, according to the sages mentioned in it, to the post-Bar-Kokhba era (circa 140-150 CE).
The abovementioned sources from the Tosefta reveal that in the period following the destruction of the Temple there was a tendency to exempt those who, due to circumstances or duty, had difficulties in fulfilling the commandment of dwelling in the sukkah. Against this background, one can also explain the exemption of women from this commandment. After all, women were considered on a religious errand when breastfeeding their offspring, and were considered sick while menstruating or recovering from child labor. I thus assume that their exemption from the commandment of sukkah does not derive from an intention to exclude them from the festival but rather offers them the same alleviation offered to the men on duty.
It seems to me that this trend is the basis of the general exemption of women from positive timebound commandments. mQid 1:7 establishes the following general principle:
1. It indicates that the practice stated clearly in the mishnah, that a religious errand exempts a person from dwelling in the sukkah, was not always firmly established.
2. Rabbi Ila‘i was reprimanded for leaving his home during Sukkot (“home” in this context probably meaning “his wife”[1]). Since Rabbi Ila‘i was a disciple of Rabbi Eli‘ezer, who lived during the Yavneh period (circa 75-100 CE), we can deduce that the halakhic exemption from dwelling in the sukkah due to a religious errand dates back only to a later time, when people were apparently compelled to leave their homes and families even during the holiday because of various economic and social constraints.
From this we may deduce that the mishnah here is a reworking of the Tosefta. In the case of the second toseftan halakhah (2:2), which exempts the sick from residing in sukkot, the mishnah again appears to be a reworked version, summarizing and generalizing it. As in the previous one, the halakhah in the Tosefta is also very detailed, although no reservations are added. It is accompanied by a contradictory story dated, according to the sages mentioned in it, to the post-Bar-Kokhba era (circa 140-150 CE).
The abovementioned sources from the Tosefta reveal that in the period following the destruction of the Temple there was a tendency to exempt those who, due to circumstances or duty, had difficulties in fulfilling the commandment of dwelling in the sukkah. Against this background, one can also explain the exemption of women from this commandment. After all, women were considered on a religious errand when breastfeeding their offspring, and were considered sick while menstruating or recovering from child labor. I thus assume that their exemption from the commandment of sukkah does not derive from an intention to exclude them from the festival but rather offers them the same alleviation offered to the men on duty.
It seems to me that this trend is the basis of the general exemption of women from positive timebound commandments. mQid 1:7 establishes the following general principle:
[1] See ILAN, Ta‘anit (FCBT II/9) 26-28.
כל מצות עשה שהזמן גרמה, אנשים חייבין ונשים פטורות, וכל מצות עשה שלא הזמן גרמה, אחד אנשים ואחד נשים חייבין.
Every positive timebound commandment, men are obligated [to perform] and women are exempted, and every positive commandment, which is not timebound, both men and women are obligated [to perform].[1]
[1] And further on this issue see ALEXANDER, “How Tefillin Became a Non-Timebound, Positive Commandment” [ed].
A parallel source to this mishnah, from the Tosefta, lists positive timebound commandments in order to demonstrate what the concept implies:
איזו היא מצות עשה שהזמן גרמא? כגון סוכה, לולב ותפלין. אי זו היא מצות עשה שלא הזמן גרמא? כגון אבידה ושלוח הקן, מעקה וציצית. ר' שמעון פוטר את הנשים מן הציצית מפני שהיא מצות עשה שהזמן גרמא.
Which is a positive timebound commandment? Such as sukkah, lulav and teffilin. Which is a positive commandment, which is not timebound? Such as returning a lost item, dispatching a mother bird from a seized nest, installing a banister on one’s roof and fringes (tsitsit). Rabbi Shime‘on exempts women from tsitsit, as it is time-bound.[1]
[1] A Babylonian baraita (bQid 36b) adds to the group of positive time-bound commandments from which women are exempt, shofar and tsitsit.
The Tosefta attributes women’s exemption from the commandment of sukkah to its being a positive timebound commandment and mentions Rabbi Shime‘on as the one responsible for exempting them from tsitsit as well. The reference to Rabbi Shime‘on indicates that the discussion regarding the exemption of women from positive timebound commandments occurred following the Bar-Kokhba revolt. However, it is equally possible that sayings from various periods were tied together in the Tosefta by the editor, and that the debate itself predated Rabbi Shime‘on. Either way, the issue of women’s exemption from the sukkah
commandment was probably first raised in the Yavneh period, as I suggested above, and it seems that at this time, or closely thereafter, the exemption of women from all positive timebound commandments was also decided. This assumption coincides with Ilan’s opinion cited above, that Shammai disagreed with the other sages of his day regarding the exemption of women from the sukkah. Ilan also believes that Bet Shammai may have followed Shammai in this matter, and this indicates that in their day, i.e. during the Second Temple period (10-60 CE), the issue was subject to debate, and had not yet been resolved.[1] The assumption that the discussion reflected in mSuk 2:8 and mSuk 2:4 took place during the difficult times following the destruction of the Temple and the Bar-Kokhba revolt strengthens the notion that the exemption was derived from the sages’ desire to treat women leniently, rather than from a desire to exclude them from male domains.
commandment was probably first raised in the Yavneh period, as I suggested above, and it seems that at this time, or closely thereafter, the exemption of women from all positive timebound commandments was also decided. This assumption coincides with Ilan’s opinion cited above, that Shammai disagreed with the other sages of his day regarding the exemption of women from the sukkah. Ilan also believes that Bet Shammai may have followed Shammai in this matter, and this indicates that in their day, i.e. during the Second Temple period (10-60 CE), the issue was subject to debate, and had not yet been resolved.[1] The assumption that the discussion reflected in mSuk 2:8 and mSuk 2:4 took place during the difficult times following the destruction of the Temple and the Bar-Kokhba revolt strengthens the notion that the exemption was derived from the sages’ desire to treat women leniently, rather than from a desire to exclude them from male domains.
[1] ILAN, Integrating Women, 68.