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?
Eric Haas, Philadelphia, USA
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).
All the best,
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.
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,