Which roofs are obligated in having a fence-Part 2

Which roofs are obligated in having a fence?[1]

Beis Dirah-A roof of a home which is commonly used:[2] A guardrail is only obligated to be established to a roof of a home which is used for living purposes [i.e. Beis Dirah][3], and which its roof space is commonly used [for any purpose, even mere sitting and walking[4]].[5] For this reason, our roofs today are exempt from requiring a fence being that it is not common anymore to use them.[6] [This applies not only to a slanted roof of a home but even by a flat roof home, being that it is no longer common for people to make use of it. A guardrail is not required even if one occasionally goes onto the roof, so long as it is not common enough to justify a worry of one falling off.[7] If, however, it was to be that an individual or family makes use of the roof, such as for hanging laundry, or as a storage area, or as a porch to sit and relax, then it is obligated in having a guardrail placed around its roof.[8] Some Poskim[9] rule based on the above regulation of “Beis Dirah” that only an actual home which is used for living purposes is obligated to have a fence placed around its roof. However, a structure or building which is not used for living purposes is never obligated to have a fence placed around its roof. Furthermore, the living quarters must be directly under the roof in order for the roof to be obligated in being fenced. If, however, the living quarters are one flight down while under the roof is an attic which is not used for living purpose then the roof is exempt from requiring a fence. Practically, most Poskim[10] negate this novel ruling and require a fence to be placed around all commonly used roofs irrelevant as to what the area under it is used for. Furthermore, even according to the former opinion, there exists an obligation to make some kind of guardrail to prevent children from falling off if it is commonly visited by children.]

A small home and roof-A house which is less than 4×4 cubits:[11] A guardrail is only obligated to be established to the roof of a home which contains a 4×4 Amos space [188 x 188 cm.[12]].[13] [It is disputed amongst the Poskim if both the length and width must contain a four Amah space, or if 4 square Amos suffices, to require a fence on the roof.[14] Practically, the main opinion follows that it is exempt[15], although one is to be stringent, and hence a fence is to be built without a blessing if there isn’t four Amos by both the length and the width.[16]]

A roof which is less than 10 Tefachim high:[17] A roof is only obligated to have a fence placed around it if it has a height of 10 Tefachim [i.e. 78 cm[18]] from above the ground. [Thus, a stool, or elevated surface, or trampoline which is less than 78 cm from the ground does not require a fence or guardrail.]

Exempt from Mezuzah: Some Poskim[19] rule that all homes which are obligated in a Mezuzah are also obligated to have a fence placed on their roof, while all homes which are exempt from a Mezuzah are likewise exempt from being obligated to have a fence placed on the roof.[20] Practically, we do not rule this way and the two matters are not connected, and hence even if a home is exempt from Mezuzah, it may be obligated in a fence, and the same applies vice versa.[21]

The roof of a Beis Midrash or Shul:[22] A Beis Midrash or Shul is not obligated to have a fence placed around its roof.[23] [If, however, it is commonly used by people, such as for social events, or for kids to play, then a fence is required.[24] Nonetheless, a blessing is not to be recited.[25] Thus the balcony of an Ezras Nashim must have a guardrail placed around it, without a blessing.[26]]

The roof of a barn or storage room:[27] A barn or storage room is not obligated to have a fence placed around its roof.[28] [If, however, it is commonly used by people, such as for social events, or for kids to play, then a fence is required.[29] Nonetheless, a blessing is not to be recited.[30]]

A roof which is lower than the public street:[31] A roof is only obligated to have a fence placed around it if it is higher than the ground. If, however, the public ground is higher than the roof that it does not require a fence.[32] [This means that we do not require him to place a fence by his roof until it reaches ten Tefachim above the public ground in order so a person does not fall onto his roof.[33] Likewise, the public is also not obligated to build a fence by the public ground to prevent a person from falling on the roof.]

A purchased home versus a newly built home:[34] Although the verse in Scripture explicitly states the command regarding a new home, “when you build a new home”, practically, the obligation applies even by an old home. Hence, a roof which fulfills the criteria mentioned above, is obligated to be fenced whether it was initially built by the owner or purchased by the owner.

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^[1] Admur Shemiras Guf Vinefesh Halacha 1

[2] Admur Shemiras Guf Vinefesh Halacha 1; See Imreiy Yaakov Biurim 10:1 and Biurim there in length; See Likkutei Sichos 19 Parshas Ki Seitzei 2 footnote 47

[3] Admur ibid; Michaber 427:5; Rambam Rotzeiach 11:1; Sifri Ki Seitzei 229; Levush 426:2

[4] Kneses Hagedola C.M. 427:11; Rav Poalim Y.D. 2:36

[5] Admur ibid; Smeh 427:2 and 5; Biur Halacha 540:1 based on Ritva “A roof which is not commonly used…is not obligated in a fence”; Chazon Ish Likkutim 18:1 “Every roof which is not used is exempt from a fence”; Imreiy Yaakov Biurim 10:1 in negation of Maharahm Shick and that so is implied from Shita Mekubetzes Bava Metzia 101b

Other opinions: Some Poskim rule that even not commonly used roofs are obligated to be fenced, as in their opinion, the Torah obligation of building a fence around one’s roof has nothing to do with safety, but is rather an intrinsic requirement, and a Gezeiras Hakasuv, even if there is no chance that anyone will fall off, and even if no person will ever go onto the roof. [Maharam Shick on Taryag Mitzvos Mitzvah 547; See Imreiy Yaakov Biurim 10:1]

^[6] Admur ibid; Kneses Hagedola C.M. 427:11; Rav Poalim Y.D. 2:36

[7] Smeh 427:2; Imrei Yaakov 10:4

[8] Kneses Hagedola 427:11; Eretz HaChaim 427; Rav Poalim Y.D. 2:36; Imrei Yaakov 10:5

[9] Chazon Ish Likkutim 18:6-7; See Imreiy Yaakov 10 Likutim 6

[10] See Sefer Veasisa Meakah 21 in a Teshuvah from the Steipler who disputes this notion; Shevet Halevi 7:229-4 argues on the Chazon Ish; Imreiy Yaakov 10 Likutim 6

[11] Admur ibid; Michaber 427:2; Rambam Rotzeiach 11:2; Sukkah 3a

[12] This follows Amos Dochakos, of 47 cm. each which is to be followed by a Biblical matter

[13] The reason: The reason for their exemption is because a home which is less than this dimension is not fit for living and [thus] does not receive the status of a home. [Admur ibid; Smeh 427:3; Levush 427:3 Sukkah 3b; See also Admur O.C. 366:5; 398:10] Alternatively, some Poskim rule that all homes which are exempt from a Mezuzah are likewise exempt from being obligated to have a fence placed on the roof [Kesef Mishneh on Rambam ibid, brought in Smeh 427:2] and hence since a home which is less than 4×4 Amos is exempt from a Mezuzah, it is therefore also exempt from needing a fence.

[14] So is debated in regard to Mezuzah [See Michaber Y.D. 286:13 for a dispute in this matter and Shach 286:23 that a blessing is not to be recited] and the same law follows regarding Meakah. [Kneses Hagedola 427; Minchas Chinuch 546:6; See Rabbeinu Yerucham 21:5; Aruch Hashulchan C.M. 427:1; Maharsham 2:265]

Poskim who rule that it is exempt from a Mezuzah: Admur 366:5 in parentheses and 398:10; Rosh; M”A 398:6; Shach ibid that the main opinion is like the Rosh; Taz 634:2 that so applies even according to Rambam Hilchos Mezuzah 6:2

Opinion of Admur: Admur 366:5 in parentheses and 398:10 rules like the Rosh regarding Eiruvin and Mezuzah that if each the length and width do not have 4 Amos, then it is not considered a home.

[15] See previous footnote that the main opinion follows the Rosh

[16] Imrei Yaakov 10:6, as rules Shach ibid regarding Mezuzah

[17] Bava Kama 51a and Rashi and Meiri there; Minchas Chinuch 547; Imrei Yaakov 10:3; Likkutei Sichos Vol. 2

[18] See Shiureiy Torah p. 249 that an Ama Dochekes is 47 cm., and accordingly a Tefach Dochekes is 7.83 cm [i.e. 1/48 of a cm times 8. deducted from 8 cen.] and by the Shiur Me’akeh of ten Tefachim one should measure with an Ama Sochakos, and the same would apply here Lechumra. Thus, its exact Shiur is 78.3 cm; See also M”B 633:2 and Shaar Hatziyon 633:2 that by Sukkah we follow the stringent approach in the dimensions, either Dochakos or Sochakos, and by the 7×7 dimension we follow Sochakos, and the same would apply here by the ten Tefach dimension; See also Midos Vishureiy Torah pp. 48-57 regarding Ama Sochakos and Dochakos; Piskeiy Teshuvos 633:1; Minchas Chinuch Mitzvah 325 who rules that by Tefachim we don’t apply the extra Dochakos or Sochakos, and this is only done by Amos

Other opinions-Chazon Ish: According to the Chazon Ish, the measurement is 94.2 cm following the 9.42 measurement of Tefach Dochekos. [See Piskeiy Teshuvos ibid]

[19] Kesef Mishneh on Rambam ibid, brought in Smeh 427:2

[20] The reason: The reason for this is because the Torah only obligates one to place a fence on the roof of a home and if the home is not obligated in a Mezuzah then it is not considered a real home. [Poskim ibid]

[21] Smeh 427:2; Setimas Haposkim, including Admur and Michaber ibid

[22] Admur Shemiras Guf Vinefesh Halacha 1; Michaber 427:3; Rambam Rotzeiach 11:2; Chulin 136a; Smeh 427:5 that this applies according to all opinions; See Likkutei Sichos 24:140 in length

The Heichal of the Temple: The Sifri 22:8 writes that the roof of the Heichal of the Temple is obligated in being fenced. Accordingly, the fence that was found on the roof of the Heichal [see Midos 4:6; Rambam Beis Habechira 4:3] was not just there for beauty purposes, but in order to fulfill the Biblical obligation to fence a roof. [Likkutei Sichos Vol. 24 Sicha 2] Now, although Shuls are scripturally exempt from the obligation, as explained above, and hence here too the Heichal should be exempt [see Sifri Divei Rav ibid; Minchas Chinuch Mitzvah 546] nevertheless, it was obligated in having a fence being that the Hecihal was first built as Chulin and only later transferred and sanctified to Hekdish, and hence it was initially obligated in being fenced at the time of the building being that it did not yet have the status of a Shul. [Tzafnas Paneiach Ki Seitzei and Beis Habechira ibid] Alternatively, the reason for this is because every Jew in the world owns a part of the Heichal being that every Jew would donate for its construction, and hence it is obligated in being fenced similar to a jointly owned home. This is in contrast to a Shul which is owned and financed by the city inhabitants but given free rights to everyone in the world, and these people who are not from the city cannot be obligated in fencing the roof being that they are not owners. Now, although the obligation to fence a roof only applies to a Beis Dirah, nonetheless, since the Kohanim were obligated to eat meat and bread in the Temple, and it is technically permitted for them to eat even in the Heichal, it is likewise considered a Beis Dirah. [Likkutei Sichos Vol. 24 Ki Seitzei 2] See also Rav Poalim Y.D. 2:36

[23] The reason: The reason for their exemption is because it is not at all common to use their roofs. [Admur ibid; Michaber 427:3; Smeh 427:5] This is scripturally derived from the word “Gagecha/your roof” which is written in the verse and comes to exclude synagogues and houses of study being that they are not built for the sake of living. [Michaber ibid; Rambam Rotzeiach 11; Chulin 136a; Teshuvah of Beis Yosef brought in Mabit 2:110, brought in Shach 427:1] Alternatively, since they belong to the entire world the term “Gagecha/your roof” is not applicable to it as there is no one who owns it and can be made responsible to build the fence, and it is therefore exempt from the verse even according to those who obligate a barn or storage room to have a fence placed on its roof. [Smeh ibid; Rashi Chulin 136a; Likkutei Sichos Vol. 24 Ki Seitzei 2]

[24] Implication of Admur ibid and Smeh ibid; See Imrei Yaakov 10:4 and Biurim there in length

Other opinions: Some Poskim rule that even in such a case such roofs are exempt from requiring a fence being that they were explicitly excluded from the verse. [Chazon Ish Likkutim 18:8; Implication of all Poskim who explain the exemption is scriptural due to it not being a Beis Dirah: Rashi Chulin ibid; Rambam Rotzeiach 11; Michaber ibid; Mabit 2:110, brought in Shach 427:1; See Imreiy Yaakov Biurim ibid]

[25] Imrei Yaakov 10:4 and Biurim based on Poskim ibid who implies that even so it is exempt from a fence, and so can be possibly understood also from Admur and Smeh ibid that they are always exempt from a fence being that they are not comm only used

[26] Kol Eliyahu E.H. 4

[27] Admur Shemiras Guf Vinefesh Halacha 1; Michaber 427:1; Rambam Rotzeiach 11:1; Smeh 427:2; Kesef Mishneh on Rambam ibid; Chinuch 546

Other opinions: Some Poskim rule that a barn and storage room is obligated to have a fence placed around its roof. [Sifri, brought in Kesef Mishneh on Rambam ibid; Semag; Opinions in Smeh 427:2 and 5; Chazon Ish Likkutim 18:8] The reason for this is because they hold that a barn and storage room is obligated in a Mezuzah. [Kesef Mishneh ibid, brought in Smeh ibid]

[28] The reason: The reason for their exemption is because it is not at all common to use their roofs. [Admur ibid; See Admur O.C.370:1; Likkutei Sichos 24:140 footnote 36 and 38] Thus, even if people live in the barn or storage room [see Admur 370:1] it nevertheless remains exempt from requiring a fence on its roof.

[29] Implication of Admur ibid and Smeh ibid; Chazon Ish Likkutim 18:8; Imrei Yaakov 10:4

Other opinions: Some Poskim rule that even in such a case such roofs are exempt from requiring a fence being that they were explicitly excluded from the verse. [Implication of all Poskim who explain the exemption is scriptural due to it not being a Beis Dirah: Rashi Chulin ibid; Rambam Rotzeiach 11; Michaber ibid; Mabit 2:110, brought in Shach 427:1; See Imreiy Yaakov Biurim ibid]

[30] Imrei Yaakov 10:4 and Biurim based on Poskim ibid who implies that even so it is exempt from a fence, and so can be possibly understood also from Admur and Smeh ibid that they are always exempt from a fence being that they are not comm only used

[31] Michaber 427:4

[32] The reason: As the verse states, “Ki Yipol Hanofel Mimenu/that the faller will fall from it” [Michaber 427:4] which emphasizes that a fence is required only if a person can possibly fall off the roof, and not if one can fall onto the roof. [Smeh 427:8] See Imreiy Yaakov 10 Biurim “Shelo Yipol”

[33] Smeh 427:6

[34] Sifri ibid; Likkutei Sichos Vol. 19 Ki Seitzei 2