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Shabbat Parashat Vayishlach 5774

P'ninat Mishpat: Joint Responsibility Through a Blemished Document

(from Mishpetei Shaul siman 46, a ruling by Rav E. Goldschmidt, Rav S. Yisraeli, and Rav Ovadia Yosef - 1966)

Case: The plaintiff (=pl) was hired as a contractor for construction of a shul (=def) with the involvement of a building company (=bc). Bc paid half of the fees indicated in the contract. Def has been requested to pay the other half and has refused, saying that it never obligated itself to pay pl. The contract lists def and bc jointly as the mazmin (the one requesting services). The pages of the contract are initialed by a representative of bc and an authorized gabbai of def, and their signatures are on an addendum that lists materials and prices. On the other hand, def’s authorized signature is missing at the end of the contract, and in the clause about payment, it states that bc will pay pl.   


Ruling: It is clear that both bc and def are considered the receivers of services. Therefore, the case is parallel to that of two people who take a loan together, where the halacha is that they are both considered borrowers of half of the sum and cosigners on the other half (Shulchan Aruch, Choshen Mishpat 77:1). Derivations from the Torah are brought to justify this halacha, suggesting that it is a special halacha, which one might want to claim only applies in certain cases. However, that is only in regard to the status of cosigner, whereas the determination of the status of joint borrowers is based on simple logic (S’ma and Shach ad loc.)

The fact that a representative of def is initialed on the pages of the contract in which all the details of the mutual obligations are found is considered by common practice to be an agreement to the conditions. It appears that the lack of signature on the last page is an oversight. However, even if this is not so, bc’s obligation would by means of contract whereas def would have shown that it is an obligated party to the work done, obligated based on oral agreement.

The fact that bc is described as the one who will pay does not mean that def is not obligated monetarily. Bc’s obligation to pay can be as an arm of def, which takes care of its obligations regarding the building, or as an arev kablan, an especially involved guarantor. Neither precludes def’s basic obligation. Several other clauses in the contract refer to the mazmin as paying, and the mazmin is defined as being bc and def. The down payment is described once as being made by bc and once as by the mazmin. This is to be understood as the “two-headed mazmin” being obligated to pay the down payment and bc carrying it out in practice.

Therefore, we find that def is improperly trying to use technicalities to extricate themselves from a clear obligation and should pay their half promptly.

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