Eruvin 089: Ma'akeh

[Mordecai Kornfeld]

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Eruvin 089: Ma'akeh

Eric Haas asked:

>> Something that occurred to me during today's daf - R. Yosef establishes
>> the case he couldn't remember as having partitions around the walls of
>> the roof.  Doesn't a flat roof have to have a maakeh of ten tefachim
>> according to halacha, so how could the case be otherwise? <<

The Kollel replied:

>> The case could be this way for a variety of reasons.  One reason may be
>> that the surface on top of the roof might be a Chatzer for Jews, while
>> the building itself is owned by a Nochri, which would make the Jews
>> exempt from Mitzvas Makeh.  Or, the building is owned as a partnership
>> between a Nochri and a Jew which might also be a reason that it could be
>> Patur from Makeh (see Minchas Chinuch Mitvzah 546:7). <<

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Eric Haas, MD responds:

Dear Rabbi Montrose,

Thanks for your reply.  One thing that was brought up in our shiur was that
a house must have a certain height, ten amos to be considered a bayis (not
sure of the source, Bava Kama maybe?).  If the house was less than this it
would be patur from maakeh.  I didn't see that the Rambam brings a minimum
height requirement to be obligated in maakeh, although it must be 4 by 4
minimum width, so I don't know if this height requirement is true.
 
Thanks anyway,
Eric Haas

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The Kollel replies:

No, a house does not have to be ten Amos tall to be considered a house, but
it does have to be ten Tefachim tall to be considered a house and to be
Chayev in Makeh (see Minchas Chinuch 546:13).  As you mentioned, it also
has to be four by four Amos to be Chayev in Makeh (see Sukah 3a).

All the best,

Yaakov Montrose 


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