Ma'akeh - Obligated Individual

QUESTION: Who is obligated in the mitzvah of ma’akeh?

ANSWER: The mitzvah to build a ma’akeh is incumbent on the owner of the house, whether it is a man or woman. If a house is owned jointly by a Yisrael and a Nachri, there is a dispute whether or not one is required to erect a ma’akeh. Because of the uncertainty, a ma’akeh should be erected without a bracha.

The Gemara (Bava Metzia 101b) rules that if the owner does not live in the house and rents it to someone else, the obligation to build the ma’akeh is on the renter. The Sefer Mitzvos Gadol (79) explains that, in truth, the mitzvah should still fall on the owner, but because of the concern that the owner might be neglectful, Chazal transferred the obligation from the owner to the renter. Achronim point out that today, it is common practice for the owner of a home to provide safety features (such as safety railings and window bars as appropriate). In monetary matters, halacha generally follows the common custom (minhag ha’medina). As such, today, the requirement to build a ma’akeh reverts back to the owner.

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The Gerald & Karin Feldhamer OU Kosher Halacha Yomis is dedicated to the memory of Rav Yisroel Belsky, zt"l, who served as halachic consultant for OU Kosher for more than 28 years; many of the responses in Halacha Yomis are based on the rulings of Rabbi Belsky. Subscribe to the Halacha Yomis daily email here.