Shabbat Parashat Beha'alotcha 5779

P'ninat Mishpat: Firing a Contractor – part II

Case: Plaintiff 2 (=pl2) was the contractor for major renovations of the defendant’s (=def) home; plaintiff 1 (=pl1) was the supervisor. The contract stated that pl2 would finish the job in 120 work days within approximately six months. After over eight months, with the job not close to complete, def fired them, with the claim that pl2 was working only sporadically because he took on another job. Pl2 claims that he took the other job only after def fell behind in payments and that he had already worked 140 days because def made additions to the original plans. Pl2 claims that def fired them when she received a bill for the additional work. Def says that she wrote a letter to fire them before she received that bill, that she paid less than spelled out because she bought some of the materials that pl2 was required to, and because the work was behind schedule. She claims that pl1 approved the amount she paid and that pl2 did not protest.

Ruling: [Last time we saw that def had a right to fire pl1. Now we will start to look at monetary ramifications.]

The contract states that when there are grounds for dismissal, pl2 “will be paid only for the part that was actually carried out, fully and with excellent quality, and after the damages incurred by the homeowner are deducted. The decision will be made by the supervisor (pl1).”

This paragraph does not spell out exactly how to figure out how much to pay for the part completed, but it is appropriate to follow the standard halacha for justified firing. What one does is to subtract the amount that needed to be paid to a new worker to finish the job from the amount that was supposed to be paid to the first worker (Shulchan Aruch, Choshen Mishpat 333:4). This ensures that def will not be damaged directly from the cessation of pl2’s job. While the contract says that pl1 will do the appraisal, since there is a dispute between pl1 and def, it makes sense that beit din should be responsible for the appraisal (through an expert we appoint).

There is a prominent source (Kesef Kodashim 375:1) that says that when a worker lagged behind the schedule he was bound to that he receives payment not according to the work he did but the smaller amount between the value of his work and the amount he outlaid to do the work, like one who did unauthorized work. The Pitchei Choshen (Sechirut 13:4) applies this even to a kablan, a craftsman who is paid per the job.

However, it appears to us to distinguish in this case between a po’el and a kablan. Since a po’el is permitted to back out of the job, and he cannot be punished for it, the only protection of the employer has is to say that the conditions of the employment turn out to not be viable. In contrast, regarding a kablan, the normal approach to deal with paying for that which he did is to subtract from that which was coming to him the amount that needs to go to someone else to finish the job.

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