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Shabbat Parashat Emor| 5768

Unintended Clause in a Contract

P'ninat Mishpat



Case: The plaintiff (=pl) is a contractor who sold a two-story building to two families. The contract states that if the building will be expanded, it will be for both floors, and the owners will share the expenses equally. The defendant (=def) bought the bottom floor; pl gave his daughter the top floor. The bottom floor’s extension is only 60% of the top one. However, the contract’s language, which pl says was intentional, implies that def pay 50% of the expenses. Def says that he had not intended to pay half if he received less and that he trusted the lawyer who drew up the contract, who, it turns out, often worked for pl.

Ruling: The gemara (Bava Batra 64a) says that we assume that additional, seemingly unnecessary language in a document comes to add something that was not included. The Shulchan Aruch (CM 61:15) understands this to be the case even if the document was not written by an expert. This teaches a general rule that when we lack clear knowledge of the writer’s intention, we employ halachic analysis even without certainty that it was his intention. However, when we know that the writer’s intention differed from the document’s standard reading, Rishonim say that we prefer the intention. Based on this, the Shulchan Aruch (ibid.:16, see also Gra ad loc.:39) rules that if one makes a condition with his friend, we do not follow the written word but the intention. In our case, def clearly did not intend to pay equally for work that was mostly done for someone else’s benefit.

Does it matter that def did not write the document but agreed to one that someone else prepared? The Shulchan Aruch (ibid.:13) who says that ignorance does not exempt one who accepted a document he did not understand seems to indicate that one accepts responsibility for a documents content without intention. Nevertheless, beit din established that our case is different. Normally, one who signs a contract is not believed that he did not understand the conditions, as the sides entrusted the one who wrote it to commit to writing that which was agreed, which we assume he did accurately. When def hired an attorney it was so that he would faithfully arrive at a contract that serves def’s interests. When it can be demonstrated that he failed to do so, the client’s signature is not significant. Rav Tena (Birkat Shlomo, CM 21) reasoned similarly regarding a contracting company that signed a contract that was prepared by one of its employees who was trusted to summarize the matter correctly. The idea of obligating oneself in whatever is included in the contract applies when the drafter was given the right to do as he felt. Here too, def felt that he could rely on his lawyer.

Therefore beit din estimated the portion that def was to pay as a proportion of the relative size of the extension of his property.

 

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Dedication

This edition of Hemdat Yamim is dedicated in loving memory of

R ' Meir ben Yechezkel Shraga Brachfeld

o.b.m

 Hemdat Yamim is endowed by Les & Ethel Sutker of Chicago, Illinois in loving memory of

Max and Mary Sutker

 and Louis and Lillian Klein, z”l.

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