Ma'akeh: The Mitzvah to Build a Fence Around One's Roof

The Torah (Devarim 22:8) presents two commandments when one builds a house: a positive commandment to build a ma'akeh (fence) around one's roof and a negative commandment against placing dangerous obstacles in one's home.  In this issue, we will explore the nature of each of these commandments and the relationship between the two commandments.

The Positive Commandment

The positive commandment to place a fence around one's roof is certainly a logical mitzvah.  Its purpose, as stated in the Torah, is to prevent someone from falling off of one's roof. Yet, this mitzvah is bound by halachic parameters similar to all other positive commandments that don't intuitively relate to the logic of the mitzvah.  For example, R. Yosef Babad (1801-1874) Minchat Chinuch no. 546, writes that because building a ma'akeh is a mitzvah, the owner of the house must personally perform this mitzvah.  If he cannot perform the mitzvah personally, he may appoint an agent (shaliach) to perform the mitzvah on his behalf.  The agent must be someone who is obligated to perform the mitzvah of ma'akeh.  Therefore, one may not appoint a non-Jew to fulfill the mitzvah.

R. Efraim Navon (1677-1735), Machaneh Efraim, Hilchot Shluchin no. 11, disagrees with Minchat Chinuch's application.  He asserts that one is only required to appoint an agent who is obligated to perform the mitzvah in a situation where a lack of agency invalidates the result.  If someone were to build a ma'akeh without the owner's consent, the owner would not fulfill the mitzvah, but the resulting ma'akeh would be valid and the owner is now exempt from the mitzvah.  This indicates that there is no formal requirement to appoint an agent and therefore, a non-Jew may build the ma'akeh on behalf of the owner.

R. Navon's leniency has a limitation.  R. Navon notes that if one allows a non-Jew to build a ma'akeh on the basis that there is no formal requirement for agency, the owner would not be able to recite a beracha unless he builds the ma'akeh himself.  [Rambam (1138-1204), Hilchot Berachot 11:8, rules that one recites a beracha when building a ma'akeh.]  However, R. Navon provides a solution that would allow the owner to recite a beracha.  R. Navon proves from a discussion in the Gemara, Baba Metzia 10a, that an employee's relationship to his employer is such that the employee's actions are attributable to the employer.  R. Navon suggests that this relationship transcends agency and applies even if the employee is a non-Jew.  As such, if the ma'akeh is built by a non-Jewish employee, the owner may recite a beracha.  R. Avraham T. Eisenstadt (1813-1868), Pitchei Teshuva, Choshen Mishpat 427:1, notes that this leniency only applies if the non-Jew is employed.  If he is working as a contractor, the contractor's actions are not attributable to his customer.

The Negative Commandment

The negative commandment prohibiting placement of dangerous obstacles in one's house is not limited to building a roof without a fence.  The Midrash, Sifri, Parshat Ki Teitzei no. 19, states that the negative commandment requires one to build a fence around one's pits and wells.  The Gemara, Baba Kama 16b, cites a Beraita that extends the negative commandment to prohibiting raising dangerous dogs and placement of a ladder whose rungs have rotted.  Rambam, Hilchot Rotzei'ach 11:4, states that one must remove all potentially lethal hazards from one's possession.  Sefer HaChinuch, no. 547, writes that even non-lethal hazards are included in this prohibition.

Tosafot, Kiddushin 34a, s.v. Ma'akeh, note that the prohibition against placing hazards in one's home only applies to the actual placement.  It is prohibited to build a house without intent to construct a fence on the roof.  Likewise, it is prohibited to bring a dangerous dog into one's home.  However, if one built the house with intent to construct a fence around the roof and then decided later not to construct the fence, or if the fence fell, the negative commandment is not applicable and the requirement to construct the fence is only a function of the positive commandment.

The Relationship between the Positive and Negative Commandments

Tosafot seem to be of the opinion that the positive and negative commandments are two distinct ideas.  The positive commandment is a specific commandment to build a roof around one's house.  The negative commandment entails a prohibition to set up a dangerous hazard.  Rambam, op. cit., writes that there is positive commandment to remove any hazards in one's home.  However, it is not clear from Rambam's formulation whether he is referring to the positive commandment to build a ma'akeh or the positive commandment to guard one's life.  [See R. Yerucham F. Perlow (1846-1934), Sefer HaMitzvot LaRasag, Aseh no. 1 and Aseh no. 77, who presents both possibilities.  See also, Ramban (1194-1270), Kiddushin 34a, who suggests that the negative commandment does not operate separately from the positive commandment.  According to Ramban, the negative commandment only serves to encourage one not to delay fulfilling the positive commandment.  While Ramban does not address other types of hazards, he may be of the opinion that the positive commandment to build a ma'akeh also includes removal of other hazards.]

R. Avraham Yeshaya Karelitz (1878-1953), Chazon Ish to Rambam, Hilchot Rotzei'ach 11:2, notes that there is an important difference between a roof and other hazards.  The Gemara, Chullin 136a, derives from a verse that synagogues and study halls are exempt from a ma'akeh.  Chazon Ish asks: Even if one does not consider these places to have the formal status of a building that requires a ma'akeh, nevertheless, there is a prohibition against creating a hazard.  If one will respond that people don't generally go on the roof of a synagogue or study hall, that response is insufficient because any roof that people don't normally use is exempt from a ma'akeh (See Mishna Berurah, Bei'ur Halacha 640:1) and therefore, there is no need for a special exemption.  As such, how can there be no obligation to protect a synagogue or study hall (whose roof is used) from people falling off?

Chazon Ish answers that there are two different types of hazards.  There are hazards that are dangerous because one does not know to be cautious of them.  There are other hazards that are inherently safe because people know to be cautious around them, but over time it is inevitable that an accident will happen.  A roof is inherently safe because when someone is on a roof, he knows to be cautious.  For this reason, there is no prohibition to go on a roof that does not have a ma'akeh.  Nevertheless, the Torah created an obligation to construct a ma'akeh if one's home meets certain criteria.  Since synagogues and study halls don't meet those criteria, there is no obligation to construct a ma'akeh.  Chazon Ish adds that the obligation to build a ma'akeh only applies to a roof.  If one has a pit or well, it is equally sufficient to cover it or create some other means of protecting people from falling in.