Shabbat Parashat Mishpatim 5783

P'ninat Mishpat: Who and How to Fix?

Case: The defendants (=def) rented an apartment from the plaintiff (=pl). The contract states that def may not make changes to the apartment and has to fix damage that occurs to it. Def left the apartment with some repairs undone and some with which pl was unhappy, including holes in the balcony’s floor tiles. Def wants to bring repairmen to do what is left, whereas pl wants money so he can hire workers he trusts. Pl wants to switch all of the tiles, whereas def are willing to switch some of them; pl has been warned that trying to fix only some tiles could cause leakage. 

Ruling: The language of the contract indicates that def are to fix. According to one of the dayanim, that clause refers only to repairs that def are obligated in due to the contract and not without it, whereas the repairs in this case were primarily from intentional changes def made, which they are anyway required to do. The other dayanim believe the clause is general.

There is a concept of shuma (estimating value) for damages (Bava Kama 11a), i.e., we see how much the damaged object depreciated (Shulchan Aruch, Choshen Mishpat 387:1). However, the Shach (ad loc. 1) says that this is when it is not possible to fix the object. The Chazon Ish (Bava Kama 6:3) posits that if the object is up for sale, it is appraised, but if not, the damager is obligated to fix it. Rav Y. Blass (Techumin XIII, p. 389) explains that restricting payment to depreciation when the object could be fixed results in no payment in many cases, which is illogical. Therefore, in this case, def must facilitate repairs.

 How should he do this – by doing/arranging repairs or paying for pl to do so? The Shach (CM 95:18) does not resolve the question whether a damager must fix the object or may pay instead. Our question is whether def may arrange the repairs or whether they must pay for pl to do so, as pl prefers. The Tumim (95:7) and the Netivot Hamishpat (95:6) say that when repairs can be made, the damager has the right to do that rather than pay. The Chazon Ish (ibid.) argues, allowing the damaged to demand money. The matter depends how one learns the gemara (Bava Kama 85a, regarding physical damage to a person), which discusses how healing should be done. It says that the injured can refuse the damager trying to heal him out of lack of trust and rejects the injured’s demand for money and trying to heal himself because if he does not do a good job, people will blame the damager.

We learn from this gemara that neither side has an exclusive right to determine how to remedy the situation, and beit din should evaluate the reasons for the objections. In this case, while neither side wants to physically fix the problems, pl is correct that when given the chance, def did not handle the repairs well. Therefore, pl now has the right to choose, with care, the repairmen.

Regarding the tiles, since pl has the right for it to come out aesthetically reasonable, pl can demand that the tiles that were damaged (not the others) be replaced with a similar looking tile. If pl is afraid to change only some, he can take the money and use it (and keep leftover) to instead fill the holes that were made.

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