Shabbat Parashat Tetzaveh 5777

P'ninat Mishpat: Backing Out of Joint Building Plans – part II

Case: The plaintiff (=pl) and the defendant (=def) both wanted to extend their apartments, which were one on top of the other, and decided to do so cooperatively, sharing an architect (=a#1) and preparing and paying for the various elements of obtaining a municipal building permit. In the midst of the process, pl convinced def to discard a#1’s plans and hire a new architect (=a#2). Pl decided to extend his addition with a balcony. Later in the process, def became concerned that this would compromise his apartment’s privacy. When the two sides failed to agree on how to solve the privacy problem, def appealed to the municipality to disallow the extension. Pl is suing def for the expenses, over 24,000 shekels, which are now wasted (both architects’ plans and fees for various stages of applying for a building permit).

Ruling: [Last time, we saw that pl cannot claim payment due to their being partners.]

Do we accept damage claims based on the fact that Reuven relied on Shimon and lost when Shimon reversed his commitment (histamchut)? The Rambam (Zechiya 6:24) says that if, after a chatan spent a lot of money for the betrothal party, the kalla breaks the betrothal, she has to pay the party’s expenses because she caused him to waste that money. The Ra’avad argues based on the gemara (Bava Batra 93b) that if one sold defective seeds that did not sprout, he does not have to pay the buyer for wasted expenses in planting them.

The Maggid Mishneh answers for the Rambam with the following distinction. The gemara exempts when the buyer invested in order to profit, whereas the Rambam obligates when the chatan acted to conform with local expectations based on the kalla’s assurance. The Taz distinguishes based on the timing of the damage. The gemara exempts because the damage is realized after the planting, whereas the Rambam obligates when the loss is directly when the kalla backs out. The Shulchan Aruch (Even Haezer 50:3) rules like the Rambam, and we accept the Maggid Mishneh’s approach to it. Thus, in our case, since pl acted in order to benefit, he is not entitled to compensation from def.

There are additional reasons to exempt def. In classic cases of histamchut, the assurance made (e.g., the kalla will go through with the marriage) is a clear one. There is a machloket whether the obligation in the Rambam’s case applies only to betrothal or even to shidduchin (equivalent to our engagement), where the level of commitment is lower (depending on the existence of penalties for backing out). In this case, neither side gave a full assurance they would follow a given plan to the end. In fact, even pl refused to continue with the plans, as presented by a#1, in which they invested money.

Finally, in a case where the one backing out has strong justification for doing so, there should be no payment. The Rambam refers to a case where the chatan has something objectively wrong that is grounds to not marry him (see Divrei Malkiel V:125). In our case, the complaints about privacy, which pl did not agree to take seriously, are further grounds not to obligate def.

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