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Maakeh: Fencing in a Roof
Maakeh -- Fencing in a Roof:
The Torah’s Model of Accident Prevention

(aided by Rabbi Menachem Slae's collection of sources on the mitzva of maakeh, "Safety Regulations in Building in the Halacha," published by The Harry Fischel Institute for Research in Jewish Law, Jerusalem, 5745-1984)

The mitzva of maakeh, putting a fence around the roof of a home, can serve as a model for dealing with a number of aspects of accident prevention. Maakeh is presented in Deuteronomy 22:8, “When you build a new house, make a guard rail for the roof. Do not place blood on your house, lest someone will fall off it.“

5 lessons about accident prevention from the mitzva of maakeh:

1. Design a safe environment: A house is to be designed safe, as the Torah says, “When you build a new house, make a guard rail for the roof.” Proper design is the first step of accident prevention; if dangerous situations do not exist, the chances of mishap are reduced radically. This extends, according to Maimonides (Laws of Murder and Protection of Life 11:4) and the Shulchan Arukh (Choshen Mishpat 427:8) to all dangerous situations, not only a roof top. For instance, a heavyweight paper cutting machine, seriously dangerous if an operator places his hand on the paper while running it (an instinctive response) can be designed with a switch that needs both hands to operate, making the dangerous situation impossible. Prevention does not only mean being careful when there is danger, it means creating danger-free environments and situations -- homes, tools, and workplaces.

2. Reponsibility for safety rests on the house owner. Of course everyone must take care of him or herself. This does not, however, absolve the owner of a dangerous place or object of responsibility to insure the safety of those who encounter it. A home owner cannot hide behind the claim that “he should have been more careful.”

3. The law focuses on the responsibility to prevent injury -- the mitzva of maakeh -- not only on compensation when damage occurs -- the laws of damages. This is a far reaching principle in Jewish ethics: we focus on our own obligations towards others, not only on everyone’s rights. Certainly Jewish law insures personal rights and legislates compensation for damages; a good portion of the literature is devoted to these areas. However, our personal focus is on how we can help others, looking out for their well being, not merely avoiding interfering with them. Ironically, if, G-d forbid, someone entered another’s private property and fell off his unguarded roof, the owner would likely get out of court without an obligation to pay for damages, based on the powerful claim, “Why didn’t the victim watch himself? On the other hand, the Divine Court proclaims, “There is blood on your house.” He is still morally responsible.

4. Safety precautions are a necessary pre-condition for use: A homeowner is obligated to fence in his house before living in it, and transgresses constantly until he does so (Maimonides, ibid. 11:3 -- spelled out by Minchat Chinukh Mitzva 546). There is even an opinion (Rabbi Yehuda Hanasi quoted in Sifrei Ki Teitzei 19) -- not quoted by later authorities as normative -- that a maakeh must be built immediately upon completion of a building, not just right before living in it. Building safety is not just something to get around to (“Yeah, we really should put a fence around that roof; maybe when some time frees up during vacation.”), but an obligatory first level priority.

5. Don’t philosophically rationalize: The sages (Talmud Bavli Shabbat 32a) point out the Torah’s strange formulation, in Hebrew, “ki yipol hanofeil mimenu” -- literally, “for the one who falls will fall.” Say the sages, he was going to fall anyways, he is called “the one who falls.” However, whether in the cosmic scheme of things he was intended to fall is none of my business -- I must make sure that my roof does not cause him to fall. Similar to what Mordekhai tells Esther in the Purim story -- the Jewish people will be saved; it can come through you or in spite of you. The choice is yours. In our case: even if something negative is destined to happen to that other person, we must make sure it does not happen through us.

Our spiritual, moral, cultural, social and physical lives are intertwined. Physical safety, ours and everyone else’s, is a necessity for all of our great moral, cultural, social and spiritual endeavors to get off the ground. We try to create a secure and safe environment within which we and our children can grow spiritually and morally. Basic to that and linked to that is insuring an environment that is physically safe. The structure of our houses is blessed with two mitzvot, the mezuza and the ma’akeh. The mezuza on the right doorpost, containing two chapters of the Shema, helps form the spiritual environment of our homes and reminds us of G-d’s protection. The ma’akeh fencing in the roof follows G-d’s directive that we protect ourselves and others.

prepared by R. Eliezer Kwass

©2000 Darche Noam