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Shabbat Parashat Yitro 5778

P'ninat Mishpat: Responsibilty of Mefakeiach for Contractors Flaws part I

(based on ruling 76052 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) was doing major renovations and hired the defendant (=def) as a mefakeiach (private building inspector) for 30,000 shekels. Pl then signed a contract with two Palestinian contractors for 420,000 shekels. Def, who had been consulted regarding the choice of the contractors, also signed on that contract, although he was not referred to in it. Pl discovered several flaws with the contractors’ work and fired them and def before the work was completed, after the latter had received 20,000 shekels. Pl is suing def for 544,242 shekels for the flaws, claiming that def is responsible for them for a few reasons: def was in effect the general contractor (see discussion below); def recommended hiring the contractors without seeing their past work; after starting his work, def took on another job and stopped coming enough; specific mistakes were made that def should have caught. Def denies being the general contractor, saying he was no more than a mefakeiach. He suggested hiring the contractors because they were much cheaper than other options, and while he spoke with them and determined that they seemed to be professionally qualified, it was pl’s informed decision. A mefakeiach does not have to be present every day, and after taking a part-time job, he was still present enough. The flaws that he did not catch were trivial, and the bigger flaws would have been fixed by the contractors for free had they not been fired.   

 

Ruling: [Much of the technical information was provided by an expert in the field whom beit din employed.]

Beit din determined that def did not serve as a general contractor, as his job was defined as a mefakeiach. It is accepted in the Israeli “marketplace” that a mefakeiach is a representative of the homeowner and not some sort of general contractor. Def signed a contract with pl which spelled out his responsibilities, and the responsibilities of a general contractor were not included. We will respond one-by-one to pl’s claimed proofs that def went beyond the role of a regular mefakeiach:

Def took pl’s checks for the kablanim, paid them in cash, and lent them money for the job – def’s explanation, that the contractors refused to take a check and that he was doing pl a favor so that the work could progress, is reasonable. Helping out financially is not a proof of responsibility for all elements of the work.

Def signed on the contract of the contractors – def explained (and was not contradicted by pl) that since he had written the contract for pl, pl wanted him to take responsibility for the contract and sign it. That is reasonable. Responsibility for the contract does not mean that if the contractors do a bad job that def has to pay instead of the contractors themselves. In general, if there is a question of how to interpret a contract, the one who wants to claim another party’s obligations based on it has the burden of proof that that which he claims is included.

Therefore, def does not have the obligations of a contractor. [Next time we will consider other grounds for payment by def.]
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