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Shabbat Parashat Acharei Mot Kedoshim 5777

P'ninat Mishpat: Independent-Minded Architect part I

(based on ruling 74039 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) hired the defendant (=def), an architect, to draw up plans to add a floor to his house and get municipal approval. Def gave an estimate of 9,500 shekels, based on 30 hours to accomplish the tasks and varied rates for different elements. They signed a contract along these lines, adding that the price can change according to the work needed. Def quickly exceeded the estimate, and pl initiated non-judicial arbitration. The arbitrator (=arb) made a compromise about the past, and made a set price (4,176 shekels) for all future work until pl would receive his permit. Def started a major new element of the job to help pl without consultation and charged him 12,180 shekels for it before the permit was received, even though def was not to charge more unless pl asked him to do extra work. Pl went back to arb, who approved 8,000 shekels of the charge. Matters with the municipality became more complicated, and def asked for more money to deal with it. When pl refused, def stopped working, and the municipality closed the file. As a result, pl fired def and demanded a refund with the claim that he had failed to get the permit and had made unreasonable financial demands. Def argues that pl’s intervention in conferring with municipality officials undermined his efforts and that pl acknowledged that the if the need for work increased, he would deserve more.


Ruling: First, since no one questioned arb’s authority, his rulings are binding on the sides.

It is necessary to determine pl’s status as a worker. A sachir is paid by time, and a kablan is paid by the job, and differing halachot apply to them, including regarding cessation of employment. Regarding the period up to arb’s decision, it is questionable what def’s status was, but disagreements regarding that period were already resolved. After arb’s ruling, when a set fee was made, def was certainly a kablan. Even though circumstances could determine that he would be paid beyond that amount, we view such a scenario as a determination that the job was more taxing than originally imagined.

If a poel backs out, he is paid according to the value of the work he did, arrived at as the percentage of the quoted price corresponding to the percentage of the work done. For a kablan, one chooses the lower from: 1) what he did; 2) subtracting the amount of money required to have the job finished from the quoted price (Shulchan Aruch, Choshen Mishpat 333:4). In this case, the latter would leave def very little pay. If the employer backs out, he has to pay the higher of the modes of calculation.

One can infer from the Rama (ad loc. 5) that if the employer backed out rightfully because of the worker’s flaws, it is considered as if the employee backed out. In this case, there were two areas in which pl argued that def deserved to be fired: 1) his professional performance; 2) the propriety of his actions from a financial perspective. Regarding the former, all the dayanim agreed that pl did not prove his case and that pl’s actions may have contributed to the problems.

Regarding the latter, we will see that the dayanim disagreed.

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