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Shabbat Parashat Vayishlach 5773

P'ninat Mishpat: Claims of a Lawyers Negligence

(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiffs (=pl) sold an apartment, using the defendant’s (­=def) legal services to draw up a contract, for which pl paid def 2,900 shekels. Def sent the contract to pl shortly before the closing of the sale. Pl claim that they sent requested modifications for the contract, but the contract was not resubmitted to them and there was too much rush at the signing to study its contents. Pl claim that the fact that the contract was written in terms of dollars instead of shekels caused a loss of 11,948 shekels, which was a matter of negligence for which def is responsible. Therefore, def should return his lawyer’s fee. The shoddy quality of def’s work can be seen, among other things, in such mistakes as paragraph 31 being a repeat of paragraph 30. Def responds that it had always been agreed that the sale would be on the basis of dollars. Def counterclaims that pl bad-mouthed him, which caused significant professional losses, as prior to this altercation, def received an average of three clients a month through real estate agents, and in the two years since then he did not receive even one client in this manner.      

 

Ruling: The buyer’s lawyer testified that the entire time, the plan had been for the price to be in dollars. This is also apparent from several clauses in the contract, including the payment table upon which pl signed separately. In general, the halacha is that one is not believed to say that he signed something that he did not read (Shulchan Aruch, Choshen Mishpat 45:3). The fact that there were incidental mistakes in the contract does not prove otherwise. Therefore, pl’s complaints are rejected.

Regarding def’s professional losses, there are some cases where one has to pay due to damage he caused through speech. The classic case is when one’s false testimony was responsible for a litigant having to pay (ibid. 29:2), and this is based on the laws of garmi (semi-direct damage). The Shulchan Aruch Harav (CM, Nizkei Mamon 1) says that even when one is exempt from paying for his speech based on the strict law, he may have an “obligation from the laws of the Heaven” to pay.

However, there are reasons to exempt pl. Firstly, one who prevents someone from earning money is obligated only when there is a near-certainty that he otherwise would have profited. Another reason is that the damage may be considered gerama (indirect). The difference can be that according to the reason of gerama, there is a moral obligation to pay, in which case, beit din is empowered to require some payment, according to the arbitration agreement.

The Terumat Hadeshen (307) discusses one about whom false reports were spread and was subsequently fired. He rules that the culprit does not have to pay because it is gerama and because it is uncommon for someone to be fired based on one person’s account alone. Yet, the Terumat Hadeshen says that if beit din feels it is appropriate, they can create an obligation to put an end to such types of slander.

In our case, while pl overstepped the proper bounds of speech, we do not find justification to obligate him to pay, given that there were other, grounded complaints that played a role in his loss of clientele.
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Hemdat Yamim

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