Thursday, September 11, 2008

homewoner mitzvos - ma'akeh and mezuzah

"Ki tivneh bayis chadash v'asisa ma'akeh l'gagecha". The Torah presents the mitzvah of ma'akeh, the command to build a fence around a roof or dangerous obstacle, as a necessary task when building a new home. However, the halacha is that even if one remodels an old home, or moves into an old home that lacks a proper fence, one is still obligated in the mitzvah of ma'akeh. Why does the Torah place the mitzvah specifically in the context of building a new home? The Netziv explains that the Torah is sending us a mussar lesson. Building and moving into a new home is an auspicious occasion, and it is only fitting that such an occasion be used not just move furniture and the appliances, but to do mitzvos. Ma'akeh is a way to seize the opportunity to lay such a mitzvah foundation.

But why teach this lesson using the example of ma'akeh? I would guess that only a small minority of homeowners have actually had the opportunity to perform the mitzvah of ma'akeh. Yet, every single owner of a new home has the opportunity to perform a different mitzvah -- the mitzvah of mezuzah. Why does the Torah not make the point that a new home should be established through performance of mitzvos by using the illustration of mezuzah?

The Netziv switches hats to halachic analysis to answer this question. He suggests a fundemental difference between ma'akeh and mezuzah: there is a prohibition of living in a home which does not have a ma'akeh installed; however, there is no prohibition of living in a home without a mezuzah. Such an argument is easy to digest if one accepts that ma'akeh is a lav while mezuzah is only a mitzvas aseh (as the Rambam holds) , but the Netziv goes a step further and makes his argument even according to Tosfos (Kiddushin 36) who holds that the lav of ma'akeh can be avoided so long as one intends to build one at a later time. Given that both ma'akeh and mezuzah are mitzvos aseh, why should there be a distinction? The Netziv explains (and further elaborates in Ha'amek Sh'eilah 126:7) that the mitzvah of ma'akeh is a prerequisite to moving into a home. However, the mitzvah of mezuzah is incumbent upon the resident of a home, i.e. the mitzvah does not take effect until after one has moved in. Ideally, one should perform the mitzvah of mezuzah immediately afterwards, but if one is prevented from doing so for whatever reason, one is not required to move out. In a nutshell, fulfillment of ma'akeh is a necessary condition of setting up residence; setting up residence is a necessary condition of becoming obligated in the mitzvah of mezuzah. Similar words, but very different outcomes. Moving in without a ma'akeh is an active violation of a mitzvah. Moving in before affixing a mezuzah merely establishes acondition of residence; the contination of that state of residence without a mezuzah is a passive violation of the mitzvah which should be performed.

This chiddush of the Netziv helps answer a question raised by R' Akiva Eiger (Shu"t Mh"K #9). R' Akiva Eiger asks why is it that every person who goes on an extended trip (e.g. spending the summer in a bungalow colony) does not make a bracha on the mitzvah of mezuzah when re-establishing residence in one's home? The implication of the question is that the act of taking up residence is what generates the obligation to affix a mezuzah, and hence when that act recurrs, a new obligation and new bracha is required. According to the Netziv, this is not the case at all. The act of taking up residence is not a mitzvah act; it is just a means to establishing a condition necessary for the mitzvah of mezuzah to then take effect. Once residnce is re-established, one cannot remain in a passive state without a mezuzah affixed to one's door, but since the mezuzah is already up, such a condition is automatically avoided. No new mitzvah occurs, and no new bracha is required.


  1. I believe the Netziv shtells tzu tzitzis (and says not like the Mordechai who allows wearing a untzitzed beged on Shabbas). According to your reasoning, one should only make the bracha on tzitzis the first time one puts on the beged.

  2. correct (i did not want to get into tzitzis - too much to tackle)

  3. Barzilai12:11 PM

    The sugya of Brachos is famously byzantine. I was saying over the Rashba in the Teshuvos #18, where he talks about brachos, and he says that one ought to make a bracha when he gives a get, except that many gittin are given where the Torah doesn't approve of the disolution of the marriage, and someone in the shiur said that when his father divorced his second wife, he felt like making a she'heciyanu.

  4. I think most homeowners have a maakah. Back in Chazal's day, roofs were used to store barrels and dry fruit. They were flat and trafficked. Today, most homeowners have staircases.

  5. Micha, I assure you that in my neighborhood, there are many orthodox jewish homes that lack even the most rudimentary maakah. These houses have a deck behind an upstairs bedroom, built over a one story den. There is a door leading to the deck. But putting up a maakah is a headache, since putting in posts inevitably causes leaks downstairs. So no maakah is made, and they just avoid walking on the veranda. Which, of course, is a bittul asei. So why don't I say something? Because I learned a long time ago that unasked for halachic advice usually generates a very negative reaction. Only once, when I told someone he needed a mezuza for the gate to his back yard after he put a crosspiece on top, he thanked me-- and then instead of putting on a mezuzah, he just removed the crosspiece.

  6. If they have a banister on the staircase up to that upstairs bedroom, part of it is probably a maakah. Unless the staircase has a wall on either side from around the 3rd step and upward.

    I alienated an LOR. I pointed out that he inherited a shul which has a platform for a duchan that has a sheer drop on either side of the staircase. It doesn't need a maakah because it's a shul. But, it doesn't need a mezuzah and has one anyway. Why does it have a mezuzah? Because a Jewish room just feels like it /should/ have one. So we hang one despite the lack of chiyuv. And shouldn't we have an equal gut reaction to Jewish rooms requiring a maakah?

    Turns out I was wrong. From what RCB writes in this entry, there should be MORE of an inclination to put a maakah on the duchan than the mezuzah at the door.


  7. Barzilai12:43 PM

    1. The Mechaber in CM 427:2 patters a beis otzar and the like, like the Rambam does. The Sma brings the kashe that since the requirements for mitzvas maaka and mezuza are identical, this contradicts the mechaber's psak (contrary to the Rambam) that beis otzar is chayav mezuza. He answers (with what sounds like a balebateshe svara) that mezuza, which is to remind us etc., we pasken like the Rif et al to be mechayeiv. But Maaka, which is just a maaka, we pasken like the Sifri to patter.
    2. Even if you are mechayeiv Beis Otzar, everyone agrees that a shul is pattur, as the mechaber says there.
    3. Even in one's own house, a platform is pattur from maaka. You're only chayav maaka if there is, DIRECTLY BENEATH THE RAISED AREA, a living space. So you techincally don't need one on a front porch, and certainly not on an bimah/platform, unless it has an open space of daled ahl daled gavo'ah yud underneath it, that is used le'dirah.

  8. My point wasn't that a maakah is mandatory.

    Rather, that the culture of contemporary Orthodoxy is such that we hang a non-mandatory mezuzah, because we feel an emotional need to, but we have no parallel emotional need for a non-mandatory maakah. An interest in frumkeit, but no parallel belief in the centrality of ehrlachkeit to what Judaism means.

    But my making observations about how we have ritualized Yahadus is pointless without trying to do something about it.


  9. Barzilai3:31 PM

    I see.
    The way I put it is: Although we don't do the mitzvos because of the seichel, that doesn't mean that we can't do seichel because of the mitzvos.

    Anyway, the reason we put mezuzos on shuls etc is not, as far as I know, because of the emotional element, but rather because of the Maharam MeiRuttenberg's bad dreams. The emotional mezuzos are the ones people wear on their necklaces. I don't mean that pejoratively-- the Taz's brother seems to approve of that kind of behavior, as indicated in his teshuva brought in the Taz in hilchos tefillin.

  10. I've argued with Micha about this before.

    I need to look it up again (and hope to do so in the next few days - someone please remind me if I don't!), but as I remember from last time, there is a machlokes rishonim whether a shul needs a mezuzah (we pasken l'kula but are machmir), but l'chulei alma a shul is patur from maakeh.

  11. It's hard to believe that pile of sticks is going to turn into a fence.wood privacy fence