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Beit Midrash Series Bemare Habazak - Rabbis Questions

Chapter 73

A Fence for the Roof

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Question:I reside in a building with over 200 housing units. The vast majority of the residents are not Jewish. The building is owned by a condominium association, comprised of the building’s owners. Over half of the building's apartments belong to a Jewish-owned real estate company. Are we obligated as residents or owners to try to build a ma’akeh (fence) for the roof (it is flat)? It is likely that a decision to build one would cause animosity among the non-Jewish owners, as the fence will be expensive for such a large roof.
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Answer:There are a few cases in which and a few opinions according to which you are not required to have a ma’akeh built.
The gemara (Chulin 136a) says that although the word "gagecha" (Devarim 22:8) implies that a jointly owned roof does not require a ma’akeh, the continuation of the pasuk, "lest the faller fall," indicates that partners are obligated, since in the final analysis, someone could fall. It is less clear whether this applies even when there are non-Jewish partners, who presumably are not obligated in the mitzva. The Shach (Choshen Mishpat 427:2) says that while the Maharshal obligates in ma’akeh one who is a partner in a house along with a non-Jew, since the Rama (Yoreh Deah 286:1) says that such a house is exempt from a mezuza, it is possible that he would exempt from ma’akeh also. He hints that the comparison is not simple, since one of the reasons given for the mezuza exemption is the non-Jew’s possible reaction to what he would consider a strange ritual; this does not apply to a ma’akeh. While the more accepted opinion is that one is obligated, the matter is still doubtful (Birur Halacha (Zilber), EH/CM p. 249).
The poskim do not distinguish between cases where the Jewish-owned portion or the non-Jewish one is the majority, making moot one part of your excellent question (whether we follow the owner/landlord or the resident). If the company were asking the question, it would be a good one. The gemara (Bava Metzia 101b) says that the renter is obligated to erect a ma’akeh. Most assume that this obligation is Rabbinic (Chazon Ish, CM, Likutim 18:7; see Pitchei Teshuva, CM 427:2), and the Minchat Chinuch (#546) raises the question whether the renter’s obligation is exclusive or whether the owner of the house and roof is also obligated.
You did not state whether the roof is used at least semi-regularly or it is basically only for repairs. (I assume that if people frequented it, everyone would understand the safety needs of a fence – a ma’akeh only needs to be around 32 in. (=80 cm.).) Most poskim (Be’ur Halacha to Orach Chayim 540:1; Chazon Ish ibid. 1) say that a roof that is not frequented does not require a ma’akeh. It is possible that even the stringent opinion on this matter would not apply to a renter or where there is a partnership in the house. Since the obligation in those cases is likely based on the practical consideration of danger, it might not apply when the roof is not regularly used.
What do you one do if your case is such that you are obligated in a ma’akeh but cannot get others to agree, unless you and/or a small group to pay for it? (This would be prohibitively expensive due to the building’s size.) Regarding mitzvot aseh (positive), the rule is that one does not have to pay an exorbitant amount of money to fulfill it. Regarding mitzvot lo ta’aseh, one has to spend all his money to avoid violation (Rama, OC 656:1). The mitzva of ma’akeh is primarily a mitzvat aseh (see Ramban, Kiddushin 34a), and there may be times that the aseh applies while the lo ta’aseh does not (see Tosafot, Kiddushin 34a). Nevertheless the existence of a lo ta’aseh would seem to strengthen the aseh. However, how much one has to pay, according to many poskim (see Eshel Avraham, OC 656:8; Pitchei Teshuva, YD 157:2), depends not on how the mitzva is formulated, but on whether they are violated by action or inactivity. Therefore, since the violation is by not building the fence, a handful of people would not be expected to pay an exorbitant price to build this ma’akeh.
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