Hung Out To Dry
‘A Roof With A Parapet 10 Tefachim High Is Not Included’
(Bava Basra 63b-64a)
The Required Height Of A Parapet On A Roof
The Torah commands: “Make a parapet for your roof” (Devarim 22:8), but its required height is not indicated. Our first source for its height is in Sifrei (Ki Seitzei, 67): “Its circumference, its height – three tefachim; its walking area – 10 tefachim.” Many commentators toiled over this statement and came to different conclusions. The Semag (Aseh 49) explains that a pit or ground level well needs a parapet three tefachim high while the parapet of a roof must to be 10 tefachim high. The Sifrei therefore mentions “circumference,” meaning a well – usually round – and “walking area,” which refers to a roof (Netziv on Sifrei: Roofs in the lands of the Middle East, without domes, are usually flat, and not angled, to enable their use in the long dry season).
However, Sefer HaYereim 234 (45 in the old editions) maintains that “circumference” means a parapet’s required height – three tefachim, whereas the “walking area” refers to the roof’s height; a roof less than 10 tefachim from the ground needs no parapet. According to the Rambam (Hilchos Rotzeach Ushemiras HaNefesh 11:3), a parapet must be at least 10 tefachim high in order, as the Torah says, to prevent falling (Devarim, ibid.). Raavad and Kesef Mishneh, though, interpret the “walking area” of Sifrei to mean where a roof is most used; the parapet there must be 10 tefachim high, but the rest of “its circumference” around the roof needs only three tefachim (see Tosafos Harosh, Mo’ed Kattan 11a, s.v. Ve’osim).
Exclusions
The Vilna Gaon (see Choshen Mishpat 214 sk 35; 427 sk 3) cites our Mishna (supra 61a) and our Gemara as the source of Rambam’s opinion (Hilchos Mechira 24:16, 25:2), “A person who sells a house (i.e., just saying “house” without specifying attached areas such as a garage or tool shed) is assumed to exclude its roof from the sale if its parapet is 10 tefachim tall.” A roof with a parapet at least 10 tefachim high is defined as a separate property with its own uses, not necessarily serving the house, and not included in the sale unless so specified. A parapet less than 10 tefachim high, then, is not high enough to protect people from falling and the Rambam, therefore, demands a minimum height of 10 tefachim.
Still, in his Meromei Sadeh, the Netziv tries to prove the opposite from our Mishna: The Mishna’s wording, “if its parapet is 10 tefachim tall,” indicates that other parapets may be lower but still be defined as parapets. Our Mishna concerns selling real estate, and a 10-foot-high parapet that sets off a roof is a separate property not included in the sale unless specified. Shulchan Aruch (Choshen Mishpat 427:5) rules according to the Rambam, that all parapets must be 10 tefachim tall (Choshen Mishpat 427:5).
With His Own Two Hands
The Gemara Kiddushin 70a relates that although Rav Nachman was a highly respected talmid chacham and av beis din, he insisted on building the railing around his roof himself (i.e., with his own two hands) in order to fulfill the mitzvah (Devarim 22:8) “…and you shall make a ma’akeh (parapet) for your rooftop.”
Prohibition Against Relying on Miracles
The Sefer HaChinuch (Mitzvah 5846), explaining the reason for the mitzvah, writes that although “man does not even bruise a finger here on earth until it is decreed in Heaven, one must protect himself from danger, for when Hashem created the world, He based it on the laws of nature. He decreed that fire would burn and water would extinguish flames. And if a large rock falls on a man’s head, or if he falls from a high roof, according to the laws of nature, a man will die. Thus, the Torah commanded us to safeguard our homes and neighborhoods to prevent death through our own negligence and to avoid risking our lives [and the lives of others] by relying on miracles.”
A Mitzvah Article Like Any Other
The Shibolei Haleket (Chanukah 185) says a parapet, like tzitzis, lulav, or a sukkah, is a mitzvah article and care should be taken not to tread on it. Building a railing around the roof is not only to prevent mishaps, but is also a positive mitzvah, and the railing itself should not be treated with disdain. Rabbi Chaim Kanievsky (Hilchos Shecheinim 36) writes that laundry may be hung on the ma’akeh because household use of articles used for mitzvos is not considered debasing. As proof, he cites an account in the Gemara (Sukkah 10b) of how Menimin, Rav Ashi’s servant, hung his wet shirt on the sukkah and was reproached by Rav Ashi, who said other people might come to think it is permitted to use a davar hamekabel tum’ah, an article that can become impure, as s’chach. Yet Rav Ashi did not issue any rebuke about using the sukkah as a place to hang his clothes, demonstrating that normal use does not desecrate a mitzvah article.
