Shabbat Parashat Mishpatim 5780

P'ninat Mishpat: Bad Advice Causing Loss of Mortgage Rights – part II

Case: The defendants are an organization formed to build a real estate development (=def1) as a kevutzat rechisha (a group of purchasers = kr) and the company that supervises the project (=def2). The plaintiffs (=pl1 and pl2) signed up to join def1 and become owners of apartments with only one spouse signed (for technical reasons), which def1 and def2’s employees said was fine. It turns out that this caused pl1 and pl2 to be ineligible for special government mortgage arrangements, and they are demanding payment of the estimated 42,000 shekels apiece over the life of the mortgage this is worth. The defendants argue that they were not obligated to arrange mortgages, that at the time of the advice given, it was not expected that buyers would benefit from government mortgages or that it would make a difference if both spouses were listed as owners. Later on, switching the registry of ownership could have held up the whole group.      

Ruling: [Last time we saw that def1 and def2 are not responsible for originally encouraging pl1 and pl2 to sign without their spouses mainly because at the time it was not a mistake.]

 As of 2017, it already became evident that many people would benefit from the government mortgages, and still the defendants said it was okay that only one spouse was signed. Also, at this point, def2 was being paid to represent the members of def1 (see last week’s installment), including pl1 and pl2. However, our inquiries have revealed that even expert mortgage advisers were unaware of the ramifications of the changes in the initial stage.

Furthermore, according to the majority of dayanim, pls did not prove that at that stage, it was still possible for them to have received the government mortgages. One dayan points out that def2 admitted that they could have received the mortgage, just that they were against it because the change of title likely would hold back the whole group. He also argues that according to the Shulchan Aruch (Choshen Mishpat 306:7), the adviser who caused damage has to prove that he was not at fault. The majority of dayanim respond that def2’s admission was theoretical; they did not say it was clearly possible to receive the mortgage. Regarding the Shulchan Aruch, it only says that the adviser has to prove he is an expert (as most are not), not that he has to prove every element of faultlessness.

Defs’ claim that not receiving the special mortgage is not a loss but the lack of a special gain is not true. Not being able to reduce (financing) costs is indeed a loss. However, their claim that changing title would hold back the project is correct. Def2 was not hired by any individual but by the group as a whole, and something which is bad for the group is not something he should advocate even if it helps a few individuals. The Shulchan Aruch (CM 176:10) gives partners leeway to act in a way that people deem as advantageous to the joint project.

Def1 and def2 could be obligated based on contractual obligations, even if there was no objective damage. However, in this case, the contract states that def2 is not responsible for the financing of the members of the group’s property.

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