Shabbat Parashat Vayishlach 5782

P'ninat Mishpat: Did the Advisor Do Enough?

Case: The plaintiffs (=pl) hired the defendant (=def), a mortgage advisor, to help them obtain a mortgage with the best conditions. Def worked with pl to get a mortgage proposal with Bank 1, but the offer was rescinded when pl did not submit an appraiser’s valuation of the apartment on time. Def started pl on the process with Bank 2, requiring a lot of work on pl’s part. When it was time to sign, the wife gave birth and by the time they were able to sign, Corona broke out, Bank 2 raised the interest rates, and pl decided not to sign. When pl asked def for another offer, def refused unless pl would pay an additional fee. They stopped working together. Pl, who had already paid, wants to receive their money back since def did not see the process through to the goal and because def made pl do all of the legwork with Bank 2. Def argues that his job was completed when he produced Bank 1’s mortgage proposal, and anything he did beyond that was voluntary.   

Ruling: Looking at the contract, there is significant ambiguity in regard to some of the disputes. Par. 3.4 states that if the client stops the process after there is a mortgage proposal, he must pay in full. This identifies the mortgage proposal as a central element, although it does not address our exact case. In general, when there is doubt about what is included in a contract, the one who wants to receive money based on the contract is not able to do so (Shulchan Aruch, Choshen Mishpat 42). However, this is based on the rule of hamotzi mechavero alav hareaya (proof is needed to extract payment), so that in a case like this where the beneficiary of the contract already received payment, he does not have to return it out of doubt (Rama, CM 42:8).

Regarding whether def is required to go to the bank instead of the client, doing so is written as something that def may do but it is not written as a specific obligation. This can imply that the matter is somewhat at def’s discretion.

If we consider both issues together, we see that def did the legwork with Bank 1, which fits with his understanding that before having done his job, he should be involved in an extensive manner. After the mortgage proposal was received, but it became unusable, def just helped beyond the letter of the law to enable pl to get a mortgage in any case. Although pl blamed def for not making them aware that there was a deadline for presenting the appraisal, the proposal has a date on it states for how long it is binding, and def presented two WhatsApp messages in which he urged pl to finish the paperwork before it was too late.

Therefore, it appears very likely that def did as much as was required of him, and pl is not entitled to get a refund.

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