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Shabbat Parashat Tetzaveh| 5764

Ask the Rabbi

[This is an abridged version of last week’s question, including responses to our inquiries. Review elements of the deliberation that we cannot repeat.]
Question: I, as an architect, was authorized by a client to hire for them a structural engineer to supplement my work. As lead contractor, I am supposed to arrange all payments. I was mildly negligent in not sufficiently warning the client that the engineer would have to do a lot of work. The client now refuses to pay for the engineering work. Should I pay the engineer from the money I was paid for my plans? The engineer and I have no written or even specific, oral agreement, but we both assume to be working within accepted practice. The American Institute of Architects (AIA) told me that in their standard contract, it says that the architect should pay the consultants according to the percentage of money received from the client and diligently pursue the remainder of the payment. They provided no information to fit this exact case.
Answer: Your responsibility to subcontractors is as an agent and, thus, you aren’t required to pay them out of your pocket when the client refuses to pay. This is confirmed by professional practice and by the AIA standard contract.
 The client was required to pay you, part on your own behalf and part on the engineer’s behalf. When one receives partial payment from a joint debtor, who gets the money? The Shulchan Aruch (CM 58:4) and Rama (ibid. 83:2) rule that he who receives the payment has the power to determine what debt the payment refers to, even against the intention of the one who pays. Thus, you should have been able to keep all the payment for your architectural services. However, this isn’t always the right thing to do, and your case is also different.
 An agent who arranges that A. will work for B. can obligate himself to pay personally for the work done (Bava Metzia 76a). While this is not the case in your situation, fully, it is partially. The AIA contract obligates the architect not to take all of his money before his consultants get a proportional share. As you accept this contract as the fair, industry standard, it is as if you agreed explicitly to forgo your right to keep all payment.However, the plot thickens. Although we learned that the creditor can overpower the desire of the debtor in determining the payment’s nature, the debtor can still state his preference. Although convention does not allow you to demand payment for yourself first, if it is the client who refuses to give money to the consultant, it does not seem logical that you must refuse payment for yourself in the meantime. (A clear, public ruling of the AIA to the contrary would overrule our logic by convention). At first glance, this is your situation, as your client feels that he has gained from your work but not significantly from the engineer’s work. However, upon further consideration [ed. note- realize that the description of the case is abridged], this seems to be an oversimplified evaluation. The client does not seem to question primarily the quality of the engineer’s work or his basic diligence, but the broad mandate he was given to investigate engineering issues beyond the client’s interest, and he blames you at least partially for this. For our purposes, it is less important whether the client is right, but how he would answer the following questions. “Did you intend that the whole payment go to the architect, and that the engineer doesn’t deserve a cent? Or do you feel that the total amount paid represents the value of services received, that neither the architect nor engineer acted properly, and so let them figure out themselves how to split up the money?” If the latter is true, as it sounds, then we go back to the AIA standard that the architect should not decide to take a proportionally higher percentage of the payment than the engineer. If the refusal to pay in full is a disingenuous excuse, then it is more clear that the AIA standard applies, as the supposed non-payment for one service is actually a general partial payment.
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This edition of Hemdat Yamim is
dedicated to the memory of R’ Meir  ben
Yechezkel Shraga Brachfeld o.b.m.

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