Question: If a non-Jewish worker builds for me a wall that will serve as a ma’akeh should I still say a brocho?
Discussion: As previously discussed, there is no mention in Shulchan Aruch regarding whether or not a brocho is recited when putting up a ma’akeh. The Rambam clearly rules that a brocho is recited, and the Chaye Odom also writes that a brocho should be recited when putting up a ma’akeh. The nusach of the brocho (according to both the Rambam and Chaye Odom) is “asher kidshonu b’mitzvosov, v’tzivonu la’asos ma’akeh”.
Regarding shehechiyonu, although the Rambam clearly rules that shehechiyonu is recited, according to the Nishmas Odom and Aruch Hashulchan this is not the general consensus and therefore shehechiyonu should not be recited.
Let us now address the situation where a non-Jewish worker puts up a ma’akeh, and not the homeowner himself:
The Machane Ephrayim (Hilchos Shluchin Siman 11) discusses this situation, and begins by differentiating between a regular shliach (emissary), and po’el (hired worker). A shli’ach is usually appointed for a specific task and while performing this task is considered as acting for the person who appointed him. A po’el (hired worker) is hired for all activities of his employer (during a set time), and while employed is considered an asset of his employer; therefore, automatically all his actions are considered as having being performed by his employer. Therefore, writes the Machane Ephrayim, if a po’el puts up a ma’akeh then his employer can recite the brocho, because it is considered as if the employer has put the ma’akeh up himself.
The Pischei Teshuva (Choshen Mishpot Siman 427 s.k. 1) quotes the Machane Ephrayim and infers from his words that the arrangement with the worker is very significant; if the worker is paid for the job (technically referred to as a kablan), he does not have the status of a po’el and therefore the homeowner who hired him cannot recite a brocho when his worker puts up a ma’akeh. In such a situation, if the worker is Jewish, according to the Knesses Hagdolah the worker can (and should) recite the brocho himself.
Only when the worker is paid for his time and not for the job, does he have the status of po’el and thus the homeowner who hires him can recite a brocho when his worker puts up a ma’akeh, even if the worker is a non-Jew.
The Minchas Chinunch (Mitzvah 546) writes that just like all other mitzvos one is obligated to fulfil the mitzvah of ma’akeh either himself or through his shli’ach. However, if a ma’akeh is put up by a minor or a non-Jew (even under the instruction of the homeowner), since these individuals are not subject to shlichus one has not fulfilled the mitzvah. And although there is obviously no further obligation of ma’akeh, one has lost the opportunity of fulfilling a mitzvas aseh.
The Minchas Chinunch quotes the Machane Ephrayim (who writes that if a po’el builds a ma’akeh then his employer can say the brocho) and disagrees with him. The Minchas Chinunch maintains that not only can one not recite the brocho, one has squandered the opportunity of fulfilling the mitzvah as well.
The Aruch Hashulchan (Siman 427 se’if 3) quotes the Machane Ephrayim and disagrees with the distinction he makes between different workers. According to the Aruch Hashulchan since the obligation of ma’akeh is incumbent on the homeowner, it is not plausible that the worker should recite the brocho in any situation, since it is not his obligation nor mitzvah, and he concludes that [in all situations] the homeowner should recite the brocho.
Conclusion: If a non-Jewish worker builds a ma’akeh, then according to the Machane Ephrayim if the worker has been hired for a set time (as opposed to being hired for a specific job) it is considered as if his employer built the ma’akeh himself and therefore the employer can recite a brocho before the worker builds the ma’akeh.
Both the Minchas Chinuch and Machane Ephrayim disagree with this, and maintain (for different reasons) that the employer cannot recite a brocho on the ma’akeh built by a non-Jewish worker.
The most ideal solution to fulfil the mitzvah and recite a brocho in a situation where a non-Jewish worker will be building a ma’akeh is to participate in the actual building; instruct the worker to build the wall to less than 10 tefachim (i.e. 80cm, which is the required height for ma’akeh) and then the Jewish homeowner should recite a brocho and continue building the wall himself to the required height of 10 tefachim. After this required height the non-Jewish worker can continue building the rest of the ma’akeh.
Alternatively, one can ask a Jewish worker to build the ma’akeh and appoint him explicitly as a shli’ach, and now the shli’ach can recite the brocho before building the ma’akeh.