Shabbat Parashat Miketz 5778

P'ninat Mishpat: Was he or Was he Not the Lawyer? – part II

Case: The plaintiff (=pl) bought an apartment in 1994. He and the seller used the defendant (=def) as a lawyer, and def is referenced in the sales contract. In 2007, def’s office, in an effort to clear space, sent pl and many others their files. In 2014, the seller informed a startled def that he just found out that the apartment is still in the seller’s name; it later surfaced that the tax authorities had also not been notified. After a meeting between def and pl, whose details are quite disputed, def did not take responsibility to complete what was missing. The tax authority demanded 44,000 shekels, most of which was due to very late payment. Pl had a new lawyer finish the processes and negotiate a reduction of late payment (to 7,166 shekels). The new lawyer is charging a total of 7,700 shekels for his services, and pl is suing def to pay for both fees that became needed due to his negligence. Def responds that he had indications that pl had not paid and there is no old record of payment, and so he was not responsible to finish the legal processes. The contract anyway says it is the parties’ obligation to ensure the processes are finished.

Ruling: Last time we saw that def’s denial of responsibility to register the sale and report it to the tax authorities was unacceptable. Now we determine the payment due.

Although def did not actively damage pl, since he assured him that he would take care of matters so that pl relied upon him, the damages caused by his failure to keep his words are payable based on the concept of histamchut (reliance). One of the sources for histamchut is the Rama (CM 14:5), that if someone tells his counterpart to join him in court in a different city and then the first person does not come, he has to pay the second person’s expenses. The Netivot Hamishpat (183:1) applies this even to an agent who promised to buy a commodity on a friend’s behalf when the price was low and failed to do so. Therefore, def could have been obligated in the entire penalty of 44,000 shekels (def did not agree to try to reduce the penalty). Likewise, def has to pay the 3,000 shekels that the new lawyer charged for this part of his job, as hiring him was needed to reduce the possible damages and therefore falls upon def.

Is def obligated to pay for the 4,700 shekel that the new lawyer took for registering the apartment (pl admits it was a high fee, beyond what def had been promised years before, because the lawyer deserved more due to the large reduction of the tax penalty)? Def is considered like a kablan (worker per job) who backed out, in which case, we reduce from the amount he had coming to him the amount paid to his replacement (Shulchan Aruch, CM 333:4). However, the Shach (CM 333:21) rules that we do not make a worker who backed out pay from his pocket, just that we reduce that which he received for partial work. Therefore, we will just make def return the 750 shekel that he apparently received with some appreciation for inflation [we will skip the long discussion on that matter].

Because several of def’s claims were disingenuous, in our view, he will have to pay the entire beit din fee and other expenses that pl incurred in adjudication – a sum of an additional 1,420 shekels.

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