Shabbat Parashat Chayei Sara 5780

P'ninat Mishpat: The Extent of an Inspector’s Responsibility – part I

Case: The plaintiff (=pl) hired the defendant (=def) to serve as the mefake’ach (building inspector) for the house he was building along with his wife (they are now divorced). There was no contract, and his expected work hours and responsibilities were not set. The building plans called for a concrete supporting wall 12 meters wide by 6 meters high. Pl asked def for his recommendation about the kablan’s (contractor) idea to make a wall out of large stones instead. Def answered that a stone wall is just as strong, and so pl allowed the kablan to do so, after receiving instructions from def. The kablan used smaller stones than he should have, and so after some time, the wall collapsed. It cost 160,000 shekels to remove the stone wall and build a concrete wall. Because pl is unable to sue the kablan¸ an Arab from “over the Green line,” pl is suing def for his part (separate from his ex-wife) in the expenses – 80,000 shekels. Def claims that the decision to build the wall was fine, just that the kablan did not follow instructions, and so pl should sue the kablan if anyone. Pl’s wife also could have pressured the kablan to fix the wall while he was still working on neighbors’ homes. Def was not present when the bottom stones were placed, and when he came, they were covered with earth. Def was concerned that if he forced the kablan to dig out the foundation for inspection, the kablan might have quit, which would have caused losses. Therefore, he thought it was worth the small risk to leave it. Additionally, def should not have to pay the cost of a cement wall, as pl could have fixed the stone wall for a small fraction of the price.   

Ruling: Is a mefake’ach responsible for damages? The Shulchan Aruch (Choshen Mishpat 306:6) rules that a moneychanger who advised one to accept certain coins which turned out to be bad ones has to pay damages unless he was both an expert and gave the appraisal for free. This is as long as the moneychanger should have been aware he was being relied upon. The poskim (see Shach, CM 129:8) explain that when he is paid and makes a mistake, he does not live up to professional standards; therefore, if it was based on matters beyond his control, he is exempt. In this case, a client who asks the mefake’ach for advice is likely to rely upon him. However, based on our analysis of the different expert testimonies the sides presented and other indications, we conclude that the advice was sound.

Beit din accepts the premise that def was not required to be at the site every day. The question is whether he should have made the kablan remove the earth to check. On the one hand, pl had not told def to be specially cautious with the kablan. On the other hand, def knew that the kablan had financial problems and could have suspected he might cut corners. The fact that he covered the foundations so quickly could have raised suspicion. But there were also reasons not to check. The Shulchan Aruch (CM 290:9-10) allows a court-appointed guardian to make choices between choices that each include risk without receiving permission each time from beit din.

Next time we will explore how our case compares to that of a guardian and other issues.

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