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Shabbat Parashat Devarim 5781

P'ninat Mishpat: What Determines the Builder’s Responsibility – part II

(based on partial ruling in case 73081 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl), a contracting company, built the defendant’s (=def) house among others in a project, and each claims the other owes money, based on a comparison between the original terms and what was actually carried out. There were various determinants for what needed to be done: 1. The contract; 2. Blueprints; 3. The specifications; 4. The decisions of the building inspector (=ins). Beit din’s expert began work to determine the factual basis for beit din’s decisions, but beit din’s decision is needed to form a ruling. The main dispute relates to the fact that pl built less than what was laid out in the contract and specifications. According to def, when something is clear in these documents, ins is not authorized to forgo it and exempt pl from paying the difference. Additionally, the contract gives special status to the inspector’s instructions only when they are written down in the project’s ledger, which ins did not do. Pl argues that since ins’ decisions were discussed with and approved by the landowners’ representatives, these decisions are authorized to uproot whatever was written elsewhere. Pl points out that the contract was the same for different types of apartments in the project, so that ins’ input was absolutely necessary and must be binding.

Ruling: [Last time we saw that while pl would be expected to follow ins’ instructions, def would receive a reduction for elements that were not carried out.]

We must take a look at an unusual legal setup in this project. The yazam (developer) of the project is the yishuv and this set the tone for the work, but for technical reasons, each homeowner received the plot directly from the Land Authority and signed a work contract with the contractor. Therefore, the individual specifications an individual had were not as impactful as the plans and instructions of the yishuv’s professionals, such as ins. While one might expect then that def would have accepted the practical arrangements, we see that he did not.

There is a document with certain financial principles of the project that pl’s office sent out to the buyers five days before def signed his contract. Def claimed to have never seen the letter nor taken part in meetings of the buyers with ins, and pl is not able to dispute this. While pl was negligent in not attaching this document to the contract which was signed soon thereafter, they did already publicly express their intention not to be bound by everything that was written in the contract (moda’a). From def’s perspective, by his own account, he did not complain about things that were not being done until soon before the final payment, and was not even aware of many of the things that he now claims were promised when he signed the contract. Generally one is not believed that he signed documents without knowing their contents (Shut Harashba VII:77). But in this case, the claim is for the benefit of the other side, and it shows that def relied upon pl. [Because of this and other factors,] we will rule based on compromise, and give def a reduction of a 1/3 on those things that are in the specifications but were not required of pl by ins.

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Devarim 5781
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Devarim 5781