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Shabbat Parashat Shoftim 5785

P'ninat Mishpat: Damage from Renovations

(based on ruling 82093 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendant (=def) had renovations done, including digging out a basement and removing a wall from his apartment, after which, serious cracks developed in the apartments above. At that time, the plaintiff (=pl) bought one of those apartments. One engineer concluded that it was dangerous to live in the building, and two engineers disagreed. The residents came to an agreement as to what def had to do to return the situation to normal, but pl does not accept that agreement. He refrained from moving in and thus paid 5,000 NIS a month in rent elsewhere, for which he demands reimbursement, as well as for damages to the foundations and for use of joint property. Def says that at this point, it is unreasonable for pl to reject all the experts and claim there is still danger.

Compromise and Ruling: Beit din succeeded in getting the sides to agree to a compromise on the following matters. For the time pl did not enter the building and for any damages up to this point, def will pay him 1,000 NIS. Def will follow the instructions of a newly appointed expert. The only claims pl will have will be for damages that will arise from this point on. Regarding the nature of a compromise regarding any future discovery of damage, it should be payable only if pl will be able to convince beit din that Halacha obligates def to pay for it. Regarding use of joint space, the language of the agreement should be: “Def accepts upon himself to follow Halacha and not take control of joint property improperly, without explicit permission of the other residents.”

As far as the present safety of the building, beit din posits that we are to follow the opinions of the three experts, a clear majority, who attest that there is presently no problem (based on Shach, Choshen Mishpat 46:66). Even if we were to accept pl’s claim that the first expert has an interest in the matter, pl’s claim that he has heard negative rumors about the second expert cannot be accepted without any verification. That which pl claims that the main expert cannot be believed because he is trusting the contractor, is not valid, as part of an expert’s ability is to know what information he can trust and what he cannot.

Even if pl were right that the building is still damaged, it is very unclear that he could charge def for it, as def had the work done according to the professional directive of the first engineer. It is a major question whether a homeowner is required to pay for the damage his worker does. At first glance, the one who does the damage has to pay (Bava Kama 98b), although the minhag is to make the contractor, who usually has the resources to pay, do so (Chukei Hatorah, Avoda 26). Others say that the one who hired the contractor has to pay, because he is given permission to build only if he accepts such responsibility (Shut Minchat Asher I:113), but that if one can hold the person who made the mistake responsible, that is what is done.

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