Shabbat Parashat Ki Tetzei| 5764
Ask the Rabbi
Question: How full does a guard railing on a staircase have to be? How big are the gaps allowed to be? Does it matter if, technically, a baby might be able to fall through?
Answer: This question is hard to answer in detail, but understanding the concept should give you a pretty good idea how to approach the matter.
The Torah writes: “When you build a new house, you shall make a fence for your roof, and you shall not place blood in your house, should the one who falls fall from it” (Devarim 22:8). Although the pasuk mentions just a roof, Chazal (Sifrei, ad loc.) extended the law of fences to a variety of dangerous places (like, a pit) in one’s property. You refer to a guard railing for a staircase, which can be a dangerous place, especially for small children.
If the halacha applies to all places a person can fall, then why is the roof singled out? There are a few basic approaches one can take to the question. The Sefer Hachinuch (# 546) says that the Torah just mentioned a common example of a place that requires a fence. However, there is another, not necessarily contradictory approach found in several acharonim, which seems logically appealing, according to classical halachic analysis.
That is that there are what some of us like to call, “tzvei dinim,” two elements to the halacha. The requirement of a fence for a roof is quite technical and across-the-board. The requirement elsewhere is more subjective and based on the specifics of the situation. This distinction makes the roof stricter, but, at times, more lenient than other places. For example, a house that doesn’t meet a house’s size requirements is exempt from having a fence even if the roof is used in the same manner as other roofs. Additionally, the minimum height of the fence is ten tefachim (roughly, three feet), hardly enough to totally prevent someone from falling. Rather, this height is the classic one for a halachic wall in a variety of contexts, from a sukka to the laws of eiruv and more.Thus, it is likely that the maximum space in between vertical bars of the fence for a roof should be three tefachim, as we find by other halachic walls.
That is in regard to the more formalistic and defined application of these halachot. HachinucHBut by extending the concept to a wide range of dangers (including raising a “bad” dog- see Bava Kamma 15b), Chazal were telling us that, beyond the formalistic element of the mitzva, the spirit of the law is binding as well. Thus, where there is palpable danger, further steps may need to be taken. This requirement is not learned out from the positive commandment to “build a fence,” but from the negative commandment not to “place blood in your house” and the more general commandment, “be careful and safeguard your life” (Shulchan Aruch, Choshen Mishpat 427:8). One difference stemming from the distinction between the more defined and less defined applications of the halacha is that even those who require a beracha when building a fence (Rambam 11: 12) do so only on the fence of a roof (Ha’amek She’ala 145:17; Chayei Adam 15:24). Another is that one has to determine whether a potentially dangerous area, other than a roof, is actually used (Minchat Yitzchak VII, 122), in contrast to the normal law that it a straight roof needs a fence as long as it can, in theory, be used (Aruch Hashulchan, CM 427:5).
So, in your case, one has to consider what the actual dangers are. If there is reasonable danger for children, then you have to ask an expert what the maximum width between bars should be. While halacha does not expect one to spend all of his money removing the most remote danger, it is, in general, better to err on the side of caution.
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