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What’s the confusion with eating in the sukkah and Shemini Atzeret? If you took a poll of who does what in the sukkah on Shemini Atzeret, it would go something like this: “Yes, we eat all meals in the sukkah on Shemini Atzeret.” “We do too, but without reciting ‘Leishev Basukkah.’ ” “We only eat lunch in the sukkah but not dinner.” “We make Kiddush in the sukkah and then eat in the house.” “We don’t eat any meals in the sukkah on Shemini Atzeret.” “We sleep in the sukkah on Shemini Atzeret.” “We don’t.”

There’s nothing wrong with being uncertain, but what exactly are we uncertain about?

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Here’s the problem. The Torah tells us that Sukkot is on the 15th of Tishrei and that Shemini Atzeret is 7 days later, on the 22nd of Tishrei. Now, the Jewish calendar, instituted in 358 CE by Hillel, tells us that Elul is a chodesh chaser, which means it has 29 days and that the 30th day following the first of Elul is the first of Tishrei. So we know that Shemini Atzeret is celebrated 22 days following the 29th day of Elul.

Before the institution of the Jewish calendar, during the time of the Second Temple, a chodesh chaser was determined by the empirical evidence of two witnesses, who testified in the Jerusalem court of law that they had seen the new moon on the 30th day of Elul. Once their testimony was accepted, the 30th day, counted from the first of Elul, was declared Rosh Chodesh Tishrei. If no witnesses came on the 30th day of Elul, Rosh Chodesh Tishrei was declared by default on the 31st day, rendering Elul a chodesh maleh of 30 days.

Those Jews in the Diaspora who lived too far away from Jerusalem for the emissaries to arrive and advise them – before Sukkot – as to whether the month of Elul was a chodesh maleh or a chodesh chaser, had a problem. Should they celebrate Shemini Atzeret 22 days following the 29th of Elul on the assumption that Elul was a chodesh chaser of 29 days, or should they celebrate Shemini Atzeret 23 days following the 29th of Elul on the assumption that Elul was a chodesh maleh of 30 days?

If, based on the assumption that Elul was a chodesh chaser, they chose to celebrate Shemini Atzeret on the 22nd day following the 29th of Elul, when in fact, it turned out to be a chodesh maleh, they would have been celebrating the Yom Tov of Shemini Atzeret on the day that in fact was Hoshanah Rabbah. Today, even though we have Hillel’s calendar and therefore know the month of Elul is chaser and Shemini Atzeret is the 22nd day following the 29th of Elul, we, the Diaspora Jews, are required by the rabbis to perpetuate the doubt as if we do not know for sure. So on one and the same day we have to conduct ourselves as if it were both the Yom Tov day of Shemini Atzeret and the Chol HaMoed day of Hoshanah Rabbah. This may lead to inconsistencies. Therein lies the problem.

The main potential inconsistency is the question of sitting in the sukkah. The Torah commands us to sit in the sukkah for seven days. Should we sit in the sukkah on a day that may be the eighth day when we are not commanded to sit in the sukkah at all? If we should, would we not be violating the prohibition of ba’al tosif, which forbids human additions to mitzvot? If we do sit in the sukkah, should we recite the usual blessing of Leshev Basukkah? Should we sleep in the sukkah, too, on the day we celebrate as Shemini Atzeret?

These questions are debated in the Talmud and the conclusion is “meitev yatvenan, beruchei lo mevarachenan,” which means one should eat one’s meals in the sukkah on Shemini Atzeret without reciting Leishev Basukkah. The Rif explains that reciting Leishev Basukkah, while at the same mentioning the day of Shemini Atzeret in the Kiddush, would be a contradiction in terms. Furthermore, it would be an insult to the Yom Tov of Shemini Atzeret to recite Leishev Basukkah because this might send a message that the day is Hoshanah Rabbah /Chol HaMoed.

Why, then, asks the Ran, are we allowed to recite the blessing for counting the Omer on the 16th day of Nissan, which is the second day of Pesach? Should we not also be concerned that reciting the Omer blessing on the second day of Pesach sends a message that the second day of Pesach is really a weekday? After all, the Torah tells us that the first day of the Omer must be counted on the day that is “mimocharat hashabat,” the day after the festival.

The Ran gives two answers to this question.

First, the Sefirat HaOmer blessing and the Kiddush blessing are done at different times and different places and they celebrate different things. The blessings of Kiddush and Leshev Basukkah on Shemini Atzeret, on the other hand, would be recited one immediately following the other, before eating in the sukkah and they are therefore incompatible.

Second, the mitzvah of Sefirat HaOmer is, according to the Rif, a Torah requirement whereas the requirement to honor both days out of doubt is a rabbinical requirement.

As far as ba’al tosif goes, the authorities explain that there should be no concern, as long as there is some outward manifestation – heker – that one is sitting in the sukkah “out of doubt” and not for the purpose of fulfilling the mitzvah of sukkah. Such a heker is achieved by omitting the blessing of Leshev Basukkah, because any bystander observing this conduct would understand that one is sitting in the sukkah merely to enjoy the breeze on a hot day and not in order to fulfill the mitzvah of sukkah. Sleeping in the sukkah on Shemini Atzeret is prohibited according to some halachic authorities because one does not recite a berachah for this and so omitting the blessing would not constitute a heker.

Other halachic authorities suggest other ways to broadcast the fact that one is sitting in the sukkah out of doubt and not in order to fulfill the mitzvah of sukkah. For example, the Tur suggests not eating dinner in the sukkah on the evening of Shemini Atzeret. Others maintain that as long as one is not sitting in the sukkah with the intention of fulfilling the mitzvah of sukkah but only “out of doubt,” there is no issue of ba’al tosif. However, all agree that in order to avoid ma’arit ayin – the outward appearance of ba’al tosif – there should be some heker.

Why, asks Tosafot, do we not fulfill the mitzvah of arba minim on Shemini Atzeret out of doubt? Tosafot answers that arba minim are muktzah on Yom Tov and that unlike sitting in the sukkah, which may be done for non-mitzvah purposes, there would be no other reason to use arba minim except for the mitzvah. It would therefore cause a perception of ba’al tosif.

So what should we do? “Eat both meals in the sukkah on Shemini Atzeret without a berachah,” rules the Shulchan Aruch, who lived in Israel. In colder western climates, the omission of the Leshev Basukkah blessing may not be as clear a heker. Therefore some Ashkenazi Jews have the custom of making Kiddush in the sukkah on the day of Shemini Atzeret and then leaving the sukkah and eating lunch inside the home. In these matters one should follow the custom of one’s tradition.

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Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Maran Hagaon Harav Dovid Feinstein, Shlitah. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, where he specializes in cross-border mergers and acquisitions, Raphael is the author of “Ner Eyal, a Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” (2016) and “Ner Eyal, a Guide to the Laws of Shabbat and Festivals in Seder Moed” (2001), both of which are available for purchase at https://www.amazon.com/dp/057816731X Questions for the author can be sent to rafegrunfeld@gmail.com