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Shabbat Parashat Bo 5784

P'ninat Mishpat: Problems Arising from the Sale of Stores in New Project part II

(based on ruling 80079 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) bought two stores in a new project, developed by the defendant (=def) which was, at the time, mostly built. [Last time, we saw that beit din, following the language of the contract, ruled that the stores were not handed over late, but def owed some money for preventing pl’s workers from making renovations after assuring they would.] Pl claims that an exhaust pipe from a neighboring store caused extensive damage, including making it necessary to switch all of the tiles (as they cannot find replacements that match the existing tiles) and the need for work delayed when renters could move into the store. Def’s representative accepted responsibility in the first hearing but subsequently said that the neighboring store, who hired the subcontractor who put in the exhaust pipe, is responsible. Def also says the price estimate is unreasonably high.

 

Ruling: Beit din rejects the claim for compensation for the delay in renting out the stores due to the damage. Since we ruled that def had additional time to make the stores available, not being able to rent them out earlier than they were cannot be payable damage.

Regarding payment for the damage, since def originally accepted responsibility, he is not believed to change their mind on the matter (Shulchan Aruch, Choshen Mishpat 80:1). However, we reject the approach taken in pl’s engineer’s report. In the hearings, it came out that def gave pl tiles and told him to install them. Def said that he could have had workers install them, but pl did not want them to do so; pl disputes this. However, originally pl did not complain about the tiles. It is unclear if there are presently a few broken tiles or somewhat more. Since we have decided that def is responsible, it follows that def is a modeh b’miktzat (admits part of the claim), which requires him to swear on the level of Torah law on the additional amount he denies. This is replaced in our days by a partial payment (see Shulchan Aruch, CM 12:2). We accept the approach that the amount of the partial payment depends on the dayanim’s intuition regarding the specific case.

We do not accept the approach that pl can demand replacement of all of the tiles. It is true that our preference is to compensate damage by returning the situation to the equivalent of what existed before (see Eretz Hemdah-Gazit ruling 81095). This might indicate switching all the tiles to keep uniformity, which is aesthetically significant. However, one must consider how many tiles need to be replaced and the percentage of the floor they represent. In this case, despite the disagreement on exactly how many tiles were damaged, it is certainly unjustified to change them all. There are also ways of removing the signs of damage from many of the tiles. Considering the partial admission and the prospects for fixing them, we obligate def to pay 1,000 NIS. Def also has to pay for fixing the hole in the wall.

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