Shabbat Parashat Mishpatim 5778

P'ninat Mishpat: Responsibilty of a Mefakeiach for Contractors’ Flaws – part II

Case: The plaintiff (=pl) was doing major renovations and hired the defendant (=def) as a mefakeiach (private building inspector) for 30,000 shekels. Pl then signed a contract with two Palestinian contractors for 420,000 shekels. Def, who had been consulted regarding the choice of the contractors, also signed on that contract, although he was not referred to in it. Pl discovered several flaws in the contractors’ work and fired them and def before the work was completed, after the latter had received 20,000 shekels. Pl is suing def for 544,242 shekels for the flaws, claiming that def is responsible for them for a few reasons: def was, in effect, the general contractor; def recommended hiring the contractors without seeing their past work; after starting, def took on another job and stopped coming enough; specific mistakes were made that def should have caught. Def denies being the general contractor, saying he was no more than a mefakeiach. He suggested hiring the contractors because they were much cheaper than other options, and while he spoke with them and found them apparently professionally qualified, it was pl’s informed decision. A mefakeiach does not have to visit every day, and after taking a part-time job, he was still present enough. Most of the flaws that he did not catch were trivial, and the bigger flaws would have been fixed by the contractors for free had they not been fired.   

Ruling: [Last time we explained why none of the arguments that def had the obligations of a general contractor are correct. Now we look at other grounds for def to pay.]

There is a halachic concept that when Reuven has Shimon rely upon him and his failure to keep his word causes a loss of money, Reuven has to pay because of histamchut (reliance). See the Shulchan Aruch’s (Choshen Mishpat 306:6) example of one who accepted coins based on an expert’s claim that they were valid and they were not. That case, though, does not apply to the choice of contractors because it is only when Shimon informs Reuven that he is relying upon his word. In this case, def explained the advantages and disadvantages of each candidate for contractor. He did not say that the Arab contractors were risk-free but that he thought the risk was likely worth the large savings.

The claim that def gave instructions that caused damage are not reason to obligate him because the contractors did not implement the instructions properly. The claim that, as mefakeiach, he should have made sure that the contractors brought more workers is not valid because a mefakeiach does not have authority to dictate to them how many workers to bring.

Regarding the claim that def accepted another job and therefore did not come often enough, beit din’s expert reported that a mefakeiach is not required to come every day. He must come from time to time and at certain crucial times, and pl did not present clear indications that def failed to do that.

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