Pidyon Kaparot Now

Installing a Rooftop Guardrail – Part II

 

In the article from Parasha Ki Seitzei we laid out the basic halachos for a rooftop guardrail. In this part we will deal with the technical aspects of installing a rooftop guardrail, and how this is related to building the succah. The proper blessing, if recited, is also the topic of this week’s article. When is the blessing recited? What happens when a workman installs the rail, and what if the workman is a non-Jew? Can the blessing of Shehecheyanu be recited upon erecting a guardrail, and does one who builds his succah on a fenceless rooftop recite the bracha upon erecting his succah? Can such a succah even be used, or is it a mitzva achieved in tandem with a transgression?

The Blessing Upon Erecting a Succah

People often build succahs on rooftops that are not used all year round. At times, these rooftops have no guardrail or insufficient ones. Does one recite the blessing for erecting a guardrail when erecting his succah this kind of roof? Is this kind of succah useable from the halachic perspective? And would it be permissible to take down the succah since the roof will remain fenceless?

Some older apartments in Israel don’t have succah porches and residents are forced to build their succah on the sidewalks or streets. Where that is not possible, many opt to erect temporary porches on steel beams that open only for the week of Succos and do not require a building permit. These beams may either be collapsible — hanging all year off the side of the building, or permanent — standing empty and floorless all year. Come Succos, floor planks are placed on the frame and the area serves as a succah-porch. Does one recite the blessing for installing a rooftop guardrail when building his succah in this sort of place?

Some apartment buildings are built down a mountainside like steps — one neighbor’s roof is another neighbor’s porch. If one neighbor extends his apartment, it creates a roof for another neighbor, but without a proper permit and sharing the building costs with his lower neighbor, the top neighbor may not use the adjacent roof as a porch. What happens if the lower neighbor allows his upper neighbor to use the roof just for Succos – does he recite the blessing for erecting a guardrail when putting up his succah boards? And can his succah be taken down at the end of the holiday?

The Blessing On a Rooftop Guardrail

Most Rishonim are of the opinion that a blessing is recited upon erecting a rooftop guardrail. Among them are the Halachos Gedolos (Mezuza, chapter 26); the She’iltos (145); Rambam (Brachos 11:5); the Ra’avad (Tamim De’im 199); the Itur (Tzitzis 76); Smag (mitzva 27); Abudraham (Birkas Hamitzvos U’mishpateihem); Orchos Chayim (Brachos 74), and others.

The Rokeach (chapter 366) is of the opinion that one does not recite a blessing upon erecting a guardrail because this mitzva is not uniquely Jewish – non-Jews also (should) fence in safety hazards to ensure people don’t get hurt. Therefore, the formula of “Asher kidishanu bemitzvosav” – “Who sanctified us with His commandments” is irrelevant because the rest of the world is also obligated to do so.

The Ohalei Tam (chapter 137) is of the opinion that one does not recite the blessing for a different reason – in his view, erecting a guardrail is like erecting a succah – there’s no mitzva in installation. The succah is used for the mitzva of residing in it, and the rooftop needs to be a safe place so people don’t get hurt.

The Maharit (Kiddushin 70a) proves a blessing is recited from Rav Nachman, who although it wasn’t befitting his status and honor, installed his rooftop fencing himself because it was a positive mitzva and he wanted to recite the blessing in person.

Most poskim rule that a blessing is recited on this mitzva. Halacha follows their opinions: Rabbi Akiva Eiger (Choshen Mishpat 427:1); Chayei Adam (15:25); the Gra (Ma’ase Rav 100); Pischei Teshuva (Choshen Mishpat 427:1); Sdei Chemed (Berachos 1:16); Ben Ish Chai (Shana Bet, Pinchas 4); Shevet Halevi (volume IV 228).

Rav Ovadia Yosef (Yalkut Yosef, Sova Smachot Ma’ake 22) initially ruled against reciting a blessing because in in regard to blessings, where there is a difference in opinion one rules leniently and does not recite the blessing. However, later on, he changed his ruling since most opinions see a blessing on the guardrail as obligatory, those who rule against it are considered a very minority opinion, and halacha follows the vast majority.

Timing

The Itur (Tzitzit 76) writes that one should recite the blessing immediately before beginning to install the guardrail even if the actual construction process will take a few days. This is similar to the blessing for the mitzva of removing Chometz on erev Pesach, which starts at night, but only ends the following morning. Once starting the mitzva, one is allowed to get involved in other things and talk about other matters (Rav Chaim Kaniyevsky, Mezuzot Beitecha 427:1).

The Chasam Sofer disagrees. He argues (Orech Chaim 52) that since one may get distracted to the point that the guardrail will be forgotten and remain incomplete, together with the concern that an incomplete guardrail is still unsafe, the blessing should be recited right before the final completion of the rail. This mitzva, in his opinion is different from the mitzva of eliminating chometz because with chometz, checking is already a fulfillment of the mitzva, while here—only a fully installed rail is a mitzva. Shevet Halvei (volume IV 228) and Rav Ovadia Yosef (Yalkut Yosef Sova Smachot Ma’ake 22) rule accordingly.

All agree, though, that one who forgot to recite the blessing at the beginning of installation (following the former opinion) is certainly permitted to recite the blessing as long as the guardrail has not yet become a halachically valid guardrail.

Types of Fences

Only construction of a Torah-obligated rooftop fence requires a blessing, write the Ohalei Tam (137) and several Achronim. A fence intended to protect people from other potential hazards while required under the negative directive, “You shall not cause blood [to be spilled] in your house” (Devarim 22:8) does not merit a blessing. Therefore, the Chayei Adam (klal 15: 24); Netziv (Emek She’ela 145:17); Minchas Chinuch 546); and Pischei Teshuva (Choshen Mishpat 427:1) rule that one who installs  a fence around a pit, for example, does not recite a blessing. However, the Gra (Ma’ase Rav 100) and Emek Bracha (Ma’ake) and many others maintain that a blessing is recited even in this situation.

The Dvar Avraham explains (part 1:37) the difference in opinion and final halachic ruling: While the Gra follows Sefer Hachinuch’s approach (mitzva 545) that the positive mitzva here includes fencing in a pit, since doubts regarding brachos eliminate the bracha – one should not recite a bracha upon fencing in a pit or other hazard.

Text

The Geonim are divided as to the exact wording of the bracha. The Sheiltos (145); Halachos Gedolos (Mezuza 46); and Halachos Pesukos (Sassoon edition, p. 36) are of the opinion that the bracha is “Asher kidishanu bemitzvosav vetzivanu al hama’ake – Who has sanctified us in His commandments and commanded us on the guardrail”, while Rav Saadia Gaon (101) and Halachos Reo (195) opine that the blessing is “…Who has sanctified us in His commandments and commanded us to construct a guardrail.”

The Ramban (Brachos 11: 8, 13) ruled that when the homeowner installs the fence, he recites the blessing “…to construct a guardrail”, and a construction worker recites the blessing “…on the guardrail”. Rabbi Akiva Eiger (Choshen Mishpat 427:1) and Pischei Teshuva (1) both rule accordingly.

Of the contemporary poskim, Amudei Or (chapter 2:24) opines that the formula is “on the guardrail”, while the Minchas Yitzchok (volume 6:112) and Shevet Halevi (volume 4 chapter 228) both follow Rabbi Akiva Eiger’s above-mentioned opinion.

Construction Worker

The Knesses Hagedola (Orech Chaim 585) quotes his rebbe (the Maharit) that a when a workman installs a rooftop guardrail, he recites the blessing in place of the homeowner. The Machane Ephraim, though, differentiates: if the worker is paid an hourly wage for his service, the homeowner recites the blessing. However, if the worker installs the guardrail without being designated as the homeowner’s proxy — even if post facto the homeowner is pleased with the job – or, if the worker is being paid a lump sum for the entire job, the worker recites the blessing instead of the homeowner.

The Aruch Hashulchan (Choshen Mishpat 427:3) writes that in his opinion no blessing should be recited upon constructing a guardrail. However, for those who do, only the homeowner should recite it because other people do not fulfill the positive mitzva in constructing the guardrail.

The Machane Efraim (Shluchin 11) suggests a novel idea: if the workman is not Jewish, he certainly cannot recite the blessing. But if he is being paid by the time he works, he is considered an extension of the homeowner, and the homeowner recites the blessing. If, however, the non-Jew is paid for the job or did it for free, even if the homeowner instructed him specifically to do so, no blessing is recited at all. Many Achronim, among them Rabbi Akiva Eiger (Choshen Mishpat 427:1) and Pischei Teshuva (1) cite this approach.

The Maharit Elgazi (Bechoros, chapter 4:50); Chikrei Lev (Yore Deah volume III chapter 127); Toras Chessed (Orech Chaim chapter 45:4); Minchas Chinuch (546); Maharm Schick (mitzva 547:1), and others disagree with this novel approach. In their opinion, if construction is done by a non-Jew no blessing is recited regardless of his payment plan. And furthermore, in their opinion, when a non-Jew installs a guardrail the Jewish homeowner loses out not only on the blessing, but on the mitzva as well.

Therefore, when installing a rooftop guardrail, one should be particular to either construct it himself or use a Jewish worker. Where impossible, one should at least do the final installing himself, such as laying the last brick or hammering in the final nail that brings the height of the fence to a full 10 tefachim. This is especially true if the workman is not Jewish. However, if impossible, one should preferably pay the worker an hourly wage for installing (or completing) the guardrail in order to merit the mitzva itself (following the Machane Efraim’s opinion). However,  when the workman is a non-Jew no blessing should be recited, even if the worker is being paid by the hour, because the majority opinion is that no blessing should be recited on a non-Jew’s construction.

Shehecheyanu

The Rambam (Brachos 11:9) writes that one who buys a house and constructs a guardrail recites Shehecheyanu just as he does with any other mitzva that depends upon acquisition, such as tying tzitzits to a new tallis. Accordingly, the Ba’er Heitev (Choshen Mishpat 427) rules that Shehecheyanu is recited upon constructing a guardrail. However, the Chayei Adam (Nishmas Adam 15:3) and Pischei Teshuva (Choshen Mishpat 427:1) point out that the Rambam’s ruling here is in line with his other rulings that require a Shehecheyanu to be recited on new tzitzits and tefillin. Since halacha follows the opinion that no blessing is recited open tying new tzitzits (Orech Chaim 22:1), no Shehecheyanu should not be recited upon constructing a rooftop guardrail. Most poskim follow this opinion, but if the construction takes place immediately upon moving into a new house, one would recite a Shehecheyanu on the new house and include the mitzva of constructing a guardrail in his blessing. Others may opt to wear a new garment in order to recite the blessing and include the mitzva of constructing the rail.

Forgotten Blessing

The Shiurei Knesses Hagedola (432) and Sde Ha’aretz (Volume III Choshen Mishpat, end of chapter 20) write that one who forgot to recite the blessing for building a guardrail should not recite it later on. However, if the rail still needs reinforcing the blessing may be recited before the final action. In any case, if no blessing was recited, one can (and should) recite the blessing even after the guardrail has been completed, without mentioning Hashem’s name.

Succah Guardrail

When is the blessing for constructing the guardrail recited upon building a Succah?

As we explained in part I of this series, the halachically valid guardrail must be 10 handsbreadths high (80 cm according to Rav Chaim Na’eh;100 according to the Chazon Ish) and sturdy enough that people can lean on it without falling. Any other safety hazard (including the roof of a structure less than 4 square amos, or of an uninhabitable structure) must also be removed or fenced in, and one who does not do so transgresses the negative mitzva of, “You shall not cause blood [to be spilled] in your house” (Devarim 22:8). In this case the fence does not have to meet the halachic requirements of a guardrail – it can be less than 10 handsbreadths high, and even a rope may suffice if it will prevent danger.

Temporary Use

Shut Lehoros Nossan (volume II chapter 112:15) cites a debate among the poskim if an unused rooftop requires a guardrail. He writes that a rooftop that is locked all year round and only used on Succos is not considered an unused rooftop. Therefore, this kind of roof would require a proper guardrail, because using the roof on Succos is not considered temporary use.

The opinions that do not require the guardrail in this situation see sturdy succah boards as sufficient protection for the area where the succah is located, and the rest of the roof as a passageway that does not require a guardrail. He writes, however, that if the “passageway” passes close to the edge of the roof a guardrail must be installed as a protective measure to prevent people from falling off. Even if the “passageway” is far from the edge one should set up a noticeable barrier to prevent people from coming too close to the edge. In this case, however, it is not necessary for the barrier to be 10 handsbreadths high or strong enough to be safely leaned on. One must use his sense in this case, instructs Lehoros Nossan, and if there are young children around all safety measures must meet their needs.

Succah Without Guardrail

Contemporary poskim write (Betzel Hachochma, volume IV chapter 117; Reb Yitzchok Zilberstein Chishukei Chemed Eiruvin 84b; Piskei Tehsuvos chapter 626:12) that the blessing on constructing a guardrail should be recited where the mitzva is fulfilled at the same time when the succah is erected. As mentioned earlier, a Jew should be the one completing, at least, the final stage of construction.

Therefore, Betzel Hachochma (volume IV chapter  117) writes that when a fenceless rooftop (either based on the opinions that exempt an unused rooftop from the obligation to erect a fence, or due to technical reasons) is locked all year round and only used for Succos, the succah boards can serve as the halachic guardrail, and if constructed at the edge of the roof a blessing is recited upon construction (obviously only if the boards are sturdy enough to hold up people leaning on them).

In this case, at the end of Succos the succah boards may not be removed before arranging for another halachically kosher guardrail instead. [The opinions that allow a locked and unused rooftop to remain fenceless permit taking down this kind of succah.]

The same is true if the roof is not entirely fenceless, sporting a halachically-invalid guardrail instead — such as one that is too low or unsturdy. In this case, upon erecting a sturdy succah the guardrail becomes halachically acceptable and one fulfills a positive Torah commandment.

Contemporary poskim (Betzel Hachochma IV:117; Yalkut Yosef Choshen Mishpat 427:27; Rabbi Yitzchok Zilberstaien Chishukei Chemed Eiruvin 84; Piskei Teshuvos 626:12) write that if no halachically acceptable fencing exists on a rooftop and it is dangerous to use because of the missing guardrail, one cannot fulfill the mitzva of succah there. A mitzva performed in this kind of spot is achieved in tandem with a transgression, in their opinion. However, if the danger is only in the long term — because someone may one day come and ignore basic safety measures, or forget there’s no guardrail — using a succah built on such a spot is not prohibited. (Based on the Chazon Ish, Choshen Mishpat Likutim 18:2.) Therefore, although one who built a succah in such a spot is ignoring a positive mitzva, it has no connection to the mitzva of succah, and the mitzva not considered a mitzva achieved in tandem with transgression. If one has no other succah but this one (since, for instance, the neighbors refuse to permit installing a higher guardrail, or if he is a guest in someone else’s succah) using this succah is permitted, while obviously proper safety measures are mandatory.

Succah on Steel

Where a succah is built on a temporary frame made of steel beams, there is a machlokes if fencing it in is a positive mitzva or not. On the one hand it is used for living purposes, while on the other hand it doesn’t serve as a roof for any structure. As an area that serves for living purposes, it certainly requires fencing under the negative mitzva of “you shall not cause blood [to be spilled] in your house” (Devarim 22:8) while if it would be a roof it would require a proper halachic guardrail.

According to the Chazon Ish (Yore Deah 214), a steel structure used for Succos involves no positive commandment in fencing it in, and no blessing is recited upon construction. However, the Steipler (Shiurin D’oraisa, Shiurei Hamitzvos, Alef) and most other poskim maintain that there is a positive mitzva involved, and a blessing is required.

 

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