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Shabbat Parashat Vayigash 5773

P'ninat Mishpat: Closing the Door on the Window Maker

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

Case: The defendants (=def) asked the plaintiff (=pl) to provide an estimate for installing window bars, screens, and other related metal work. Pl spent several hours discussing details of the job with def, gave an estimate of approximately 21,000 shekels, and gave various ideas for improving the job. After reaching a basic agreement on the scope of the work, def gave pl a check for 10,000 shekels, pl commenced work on the window frames but was requested not to deposit the check until the next day. The next day, def called pl with the request to cancel the order of the bars but to keep the order of screens. Pl agreed to do just the screen work, but for a higher price than its part in the original deal, claiming that there had been a discount based on the scope of the original order. Def was unwilling to accept that offer. Pl is demanding 2,100 shekels for breach of contract and for the hours of advice. Def claims that they found out that pl’s price was significantly higher than standard, so they are allowed to back out of their order, and they are countersuing for 1500 shekels for the waste of their time.


Ruling: There are two halachic questions to look into in this case: 1. Were the basic elements that make a deal binding reached? 2. Are there grounds to void the sale based on ona’ah (mispricing)?

There is agreement that pl started working (Shulchan Aruch, Choshen Mishpat 333:1). The beginning of work is a kinyan (finalization of an agreement) in regards to the laws of a po’el (a hired worker). There is a machloket among the poskim whether beginning of work is a kinyan regarding a kablan (one who is paid by the job) (see Machaneh Ephrayim, Sechirut Poalim 5). In our case, although pl was paid by the job, he has elements of a po’el because he accepted upon himself a specific work schedule and also changed his other work responsibilities in order to enable him to do the job as requested. Also, payment by check is considered giving money and this is a form of kinyan for workers (Netivot Hamishpat 333:1). So there is certainly the basis for obligation to pay pl’s salary.

Def’s claim of mispricing is not valid for a few reasons. First, it has not been substantiated that there is a significant enough divergence from the standard price. While def showed that they received a lower estimate from someone else, that does not prove ona’ah, as differences in quality in work can account for differences in price. Furthermore, the difference between the estimates (21,000 to 19,000) is beneath the sixth needed to make a claim of ona’ah. Also, the laws of ona’ah do not apply to a po’el. While they apply to a kablan, that is not so when the work was done to land or that which is attached to land (see Shulchan Aruch, CM 227:33).

When an employer backs out of an agreement and the worker is not able to find replacement work, it is considered a loss for the worker, and he gets paid partially (we subtract from the amount agreed upon to take into account the worker’s vacation time). This is so even for a kablan in a case like this, where pl changed around his schedule to enable him to do the work. In this case, pl is entitled to the expected earnings from the job minus the amount of any other job he was able to find in its place. 2,100 shekels is a reasonable estimation.   

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