[Avodah] Maakeh

[Michael Kopinsky]

On 1/3/07, Micha Berger <micha at aishdas.org> wrote:
> On Wed, 3 Jan 2007 07:30:05 -0500, "Michael Kopinsky" <mkopinsky at gmail.com>
> wrote:
> > But in any case, as I said before, it seems that the only thing that is
> > objectively chayav in ma'akeh regardless of danger is the roof of a
> > residential building....
>
> 1- I thought it was any privately owned building. As long as there is a
> gavra to be the mechuyav.

It's a machlokes Rishonim.  The SA is soseim like the Rambam, who says
cattle-houses are patur.  The Sma I believe says that even according to
the Rishonim who are mechayev a cattle-house, nevertheless shuls will be
patur since there's no gavra to be mechayev.

> 2- I also thought it includes any platform or staircase in a residential
> building with a > 10 tefachim drop.

That could be, but it is not mentioned in Rambam, Shulchan Aruch, nosei
keilim, or Chinuch.  I have not seen the sugyas in Shas.

> Thus, if it were a yachid's store rather than a shul that had the platform,
> it would require a maakah. Even if people didn't normally walk on that
> platform.
>
> > Other things, such as scary dogs and deep pits,
> > necessitate preventative measures (not necessarily a 10 tefachim fence),
> > only when they are subjectively considered dangerous.
>
> Midin maakah, or midin bor bereshus harabbim?

Midin maakeh.  The continuation of the pasuk says, "v'lo Sasim Damim
b'veisecha ki yipol hanofeil mimenu."  The chinuch there also lists there
all the halachos of shmiras haguf (mayim megulim, etc.). From my
understanding, Bor birshus harabim is not an issur, but rather a Choshen
Mishpat-dikke chiyuv to pay damages.  (In general, hilchos nezikin is
monetary chiyuvim not prohibitions to damage your friend's property.  I
believe there's piece in Kehillos Yaakov (maybe Baba Kama siman 1) where
he says the issur of damaging your friend's stuff is lo sigzol.)

It also seemed from the chinuch that he understands that the things we
generally include in "venishmartem me'od lenafshoseichem" are actually
assur mishum ma'akeh.  I actually prefer this, since it doesn't need
taking the pasuk entirely out of context.

> I argued on Avodah a while back that maakah isn't directly about safety. If
> it were, it would be a chiyuv on the cheftzah. However, the chiyuv is on the
> gavra, which is why I phrased #1 (above) the way I did. So, I suggested that
> maakah is an exercise in learning the importance of safety, rather than an
> exercise in safety itself.

See what I wrote above about the machlokes rishonim.

> Tir'u baTov!
Shepherd well?  (Just to tie this in with the havara discussion... :-) )
> -mi