Rabbi Meir Orlian
Mr. Braun was renovating his house and making a spacious porch for the second floor. He discussed the plans with his learned neighbor, Mr. Adler. “Making a guardrail (maakeh) for a roof porch is not only a safety issue, but also the fulfillment of a mitzvah!” Mr. Adler commented.
“I know,” replied Mr. Braun. “I told Tony.”
“Who’s Tony?” asked Mr. Adler.
“The contractor,” said Mr. Braun, “an Italian fellow.”
“You’re going to let Tony take away your mitzvah of building a maakeh?” asked Mr. Adler.
“I’d love to build the maakeh myself,” said Mr. Braun, “but I’ve got two left hands!”
“I understand,” laughed Mr. Adler. “How high will the guardrail be?”
“Tony said the code in most places in the U.S. is at least 36 inches for residential guardrails,” replied Mr. Braun. “Some make it higher, 42, or even 52 inches for high porches. What’s the required height according to Halachah?”
“Halachah requires that the maakeh be at least 10 tefachim,” replied Mr. Adler (C.M. 427:5).
“What is that in inches?” asked Mr. Braun.
“A tefach is at least 3 inches; according to the Chazon Ish, almost 4,” replied Mr. Adler. “Harav Moshe Feinstein maintains 3.6 inches, so that 36 inches would be 10 tefachim according to him. However, since this is a mitzvah d’Oraisa and is to protect from danger, ideally one should adopt the stringent view of 40 inches.”
“I heard that there is a brachah on making a maakeh,” said Mr. Braun. “I guess I’ll make it when Tony starts working.”
“I’m not sure that you can make the brachah on Tony’s work,” replied Mr. Adler
“Why not?” said Mr. Braun. “I’m making sure that there is a maakeh on my porch!”
“Yes, but you’re not performing the mitzvah,” said Mr. Adler. “Tony’s building the guardrail!”
“But he’s doing it for me,” said Mr. Adler. “He’s like my agent to do it.”
“The issue is a bit complex,” said Mr. Adler. “I suggest that you contact Rabbi Dayan.”
Mr. Braun called Rabbi Dayan: “Do I make a brachah on a maakeh made by a gentile worker?”
“A person who performs a mitzvah generally makes a brachah,” replied Rabbi Dayan. “If he performs the mitzvah through an agent (shaliach), the agent usually makes the brachah. However, a non-Jew cannot serve as an agent.”
“So it seems clear that I can’t make a brachah,” said Mr. Braun. “Why did my neighbor say the issue is complex?”
“The Machaneh Ephraim (Hil. Sheluchin #11) differentiates between an agent and an employee,” explained Rabbi Dayan. “The Gemara (B.M. 10a) teaches that even according to the opinion that an agent cannot acquire a lost item (aveidah) for his sender, an employee can acquire it for his employer (C.M. 270:3). The employee’s hand is considered as the hand of the employer. Thus, even though a gentile cannot serve as an agent for the mitzvah of building the maakeh, if he is an employee his actions are attributed to the employer, so the employer can make the brachah.”
“So it seems I can make a brachah?” asked Mr. Braun hopefully.
“In practice, no, since some limit the Machaneh Ephraim’s position to a salaried worker who is paid by the hour or the day (po’el),” said Rabbi Dayan. “In the common case that the worker is paid a flat fee for the job (kablan), he is considered independent, so that the employer would not make the brachah, even if the worker is Jewish” (see Pischei Teshuvah, C.M. 427:1; Aruch Hashulchan, C.M. 427:3).
“Moreover, other authorities disagree completely with the Machaneh Ephraim,” continued Rabbi Dayan. “They maintain that only regarding acquisition of an item is the employee’s hand like the employer’s, but not regarding the fulfillment of a mitzvah (see Nesivos 188:1; Minchas Chinuch 216, 546; Sedei Chemed, Asifas Dinim, Maareches Brachos #16).
“Therefore, on account of safek brachos l’hakel, you should not make a brachah,” concluded Rabbi Dayan. “Only if you yourself complete the mitzvah and affix the last required piece of the maakeh can you make the brachah.”