Shabbat Parashat Shelach | 5768

A Fence on the Roof of an Organization’s Building

Ask the Rabbi

Question: We are building a new building for a Jewish organization. The question has arisen whether we require a fence for the roof (ma’akeh) and, if so, what are its requirements?

Answer: In general, one who builds a home is required to build a sturdy fence that is ten tefachim (approximately two and a half feet) high for its roof (Shulchan Aruch, Choshen Mishpat 427:5). However, there are several cases where there are exemptions.

The gemara (Chulin 136a) says that while the word “gagecha” (your [singular] roof) (Devarim 22:8) does not exclude the mitzva of ma’akeh in the case of a home owned by partners, it does exclude a shul or a beit midrash (study hall) from requiring a fence. Rashi (ad loc.) provides two reasons for this exemption: 1) No one has ownership of these places, as people from around the world have rights to them. 2) These places are not used to live in (beit dira). The Rambam (Rotzchim 11:2) and Shulchan Aruch (ibid.:3) state the second reason. This is along the line of their rulings that storage houses and other such places that are not lived in are exempt, an opinion that is not universally accepted (see S’ma ad loc.:2, 5). One other reason is provided to exempt a shul, namely, that it has sanctity that precludes this type of obligation. However, that position is difficult to support (see Binyan Tzvi II, 17).

We must thus compare your case to that of a shul and beit midrash. We do not know and even you may have difficulty determining whether your organization is more similar in structure and purpose to a partnership or to a shul that serves an undefined broad public body (see Minchat Yitzchak V, 122). This may anyway not be the main point, as the more accepted distinction of a shul is that it is not a beit dira. However, here we also have trouble comparing cases. If one has a building that is inhabited during much of the day but it is not a home that is classically lived in, does it require a ma’akeh? In many ways, the requirements of a building regarding ma’akeh and regarding mezuza are compared (Kesef Mishneh, Rotzeiach 11:1). There is much discussion about whether office buildings require mezuzas (see Living the Halachic Process G-4). The most accepted opinion is to affix a mezuza without a beracha, and one might expect that likewise an organizational building, even if no one sleeps there, would be the same. However, the S’ma (427:2) points out that regarding certain types of storage rooms, the Shulchan Aruch is stringent regarding mezuzah (Yoreh Deah 286:1) and lenient regarding ma’akeh (Choshen Mishpat 427:1).

Let’s put things in perspective. In cases where people rarely use the roof, e.g., when access requires a ladder or a key and only workmen venture there, there are ample halachic opinions that do not require a ma’akeh for any type of house (see Minchat Yitzchak V, 122; Yeshuat Moshe II, 79). This is the reason that poskim point out that in the classic, slanted roof-top, the minhag is not to build a fence (Aruch Hashulchan, Choshen Mishpat 227:5). When people us the roof regularly and without some type of fence there a fear is real danger, halacha requires one to take necessary steps to remove the danger (see Living the Halachic Process H-8), even if the formal mitzva of ma’akeh does not apply. This is because beyond the specific mitzva of ma’akeh, there is a general prohibition against being responsible for dangerous situations (ibid.). Certainly then, in this case where the formal obligation is likely not to apply, if you take the normal steps that any construction company takes to avoid danger (and possible law suits if tragedy occurs, Heaven forbid), you probably have fulfilled your obligation. It would then just be worthwhile, if the planned use of the roof warrants some precautions, that the fence you erect will be just over two and a half feet high.

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