Shabbat Parashat Vaetchanan 5776

Ask the Rabbi: The Beracha on Making a Roof-Top Fence

Question: The investment team I am part of is currently renovating a building we own, including making a roof usable for tenants. The roof has a fence (ma’akeh), but we have contracted a non-Jewish company to remove and replace it. Can I make a beracha on the new fence even though non-Jews are installing it? Does one make a beracha on a fence that replaces a previous one?

Answer: Let us start with the bottom line. You should not make a beracha. You have identified some of the several doubts about the need for a beracha. One does not make a beracha unless there is a significantly better than even chance it is called for (safek berachot l’hakel), and that is not the case here. We will take a quick look at some of the indications on various doubts.

 There is a machloket Rishonim whether one ever makes a beracha on the mitzva of ma’akeh. The reasons against a beracha include the following: it is done to remove danger, rather than being a classic positive mitzva; it is mitzva that is rooted in natural logic; there is a concern that the one building the ma’akeh will not carry through. However, despite the principle of safek berachot l’hakel, there is enough consensus of Rishonim and Acharonim to generally justify a beracha (see Yalkut Yosef, Sova Semachot p. 676).

A non-Jew is not able to be a halachic agent, certainly including regarding doing mitzvot on behalf of a Jew (Kiddushin 41b). Therefore, your non-Jewish workers’ actions ostensibly cannot fulfill the mitzva on your behalf. It is not that the ma’akeh is invalid and needs to be redone, as it suffices that the danger was obverted. However, a beracha, as well as much of the positive mitzva opportunity would be missing (see Menachot 42b).

On the other hand, the Machaneh Ephrayim (Shluchin 11) says that if the non-Jew is your salaried worker, we apply the rule that a “the worker’s hand is like the employer’s hand” (Bava Metzia 10a). This enables the Jewish homeowner to fulfill his mitzva through his non-Jewish employees’ actions, and a beracha is appropriate. Many Acharonim reject the Machaneh Ephrayim’s thesis. Their main claim is that the rule that a worker is like his employer does not apply to a non-Jew’s performance of mitzvot on behalf of his Jewish employer, and this is the stronger position. Certainly there is enough doubt to eliminate a beracha in such a case (Yabia Omer IX, Choshen Mishpat 10). Furthermore, the Pitchei Teshuva (CM 427:1) says that the Machaneh Ephrayim applies only to salaried workers and not to contractors (which you are talking about).

You imply that there are other investors. The mitzva of ma’akeh applies even when the property is co-owned (Chulin 136a). However, not all agree that this is true when the partners include non-Jews, and Rav B. Zilber (Birur Halacha, p. 249) claims that this is enough reason to not make a beracha in such a case.

The fact that the fence will replace an existing one raises an interesting question. There is discussion on whether one who switches one mezuza scroll for another has to make a new beracha (see Yabia Omer II, Yoreh Deah 17), as well as similar discussions regarding tzitzit and tefillin. There are major similarities between the cases but also possible distinctions (see Avnei Shlomo (Bloch) p. 41). The matter may also depend on how long the interim period with no functioning ma’akeh will be or on whether the roof required a ma’akeh before renovations make the roof more accessible.

Finally, it appears that before you got involved, there were already people renting apartments in the building, in which case, the tenants were obligated in ma’akeh (Bava Metzia 101b). The Minchat Chinuch (#546) says that although renters are obligated, the landlord might also be obligated. However, others say that the Rabbis uprooted the mitzva from the landlord and gave it to the renters. According to them, although you could argue that the renters are making you an agent for making the ma’akeh, it is still not simple that, if there were a beracha, you would be the one to make it.

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