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Shabbat Parashat Ki Teitzei 5776

P'ninat Mishpat: Faulty Chimney part I

(based on ruling 74083 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) bought a fireplace/chimney from the defendant (=def) for 12,450 shekels, with the following breakdown: 8,200 for the fireplace, 2,250 for the chimney, 2,000 for installing the chimney. Two years later, 2.5 meters of the chimney corroded, and after asking def to fix it, pl bought a replacement part and fixed it himself. During the third year, the whole part of the chimney within the house corroded. Def did not respond to pl’s demands to replace it, and pl hired a professional to put in a better (complete) chimney for 4,700 shekels. Pl claims that since a chimney should last around a decade, the fact that it corroded so quickly is a sign that it was never an appropriate one. He claims that the fireplace he bought was hotter than def’s older models, and that soon after pl’s purchase, def switched to a more expensive chimney. Def argues that he buys chimneys from a chimney manufacturer on behalf of his customers and gives service for only a year. He assumes that the damage came from pl using wet wood, which he usually tells customers not to do (because he was in a rush at the time, he did not give def instructions).   

 

Ruling: Beit din does not have evidence about whether the corrosion occurred so quickly because it was not fit from the outset or because of improper use. If the former, pl can void the sale, as it is accepted in society that a chimney should last far more than two/three years. It does not help def that, in some ways, he was just a go-between between the manufacturer and pl (see Shulchan Aruch, Choshen Mishpat 232:19). Although usually if one uses an object he bought after the grounds for voiding the sale became apparent, he cannot later return it, when the buyer had little or no choice but to continue to use it, he can still back out (Pitchei Teshuva, CM 232:1).        

Even if the corrosion took place due to pl using wet wood, def would still be responsible. That is because, in certain circumstances, one who accepts to give advice and does not do his job properly has to pay (see Shulchan Aruch, CM 306:6). In the case of certain sales, it is necessary to give oral and/or leave written instructions. Since def admitted that he normally does this and did not do so in this case, including after pl complained to him that there was corrosion on part of the chimney, he is responsible either way.

Def claims that industry standard is to give a warranty of only a year for chimneys and, in this case, nothing was written. However, this will not exempt def because a warranty is given to increase liability, not to decrease it. If something happened which pl could not prove was def’s fault, then after a year, def would be exempt. However, since there is no reasonable explanation other than that def is responsible, the lack of a warranty does not exempt him.

What we have explained justifies def returning that which was paid for the chimney. However, it does not justify pl’s replacement of the chimney with a better model, as he did not pay for an improved chimney.

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