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Shabbat Pesach 5776

Pninat Mishpat: Is a Contractor Responsibile for the Theft of Some of his Work?

(based on ruling 73080 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendants (=def) hired the plaintiff (=pl) to do all the electrical work in their house under construction until the house is approved by the authorities as meeting standards. He was to receive 45,000 shekels, at various stages as the work proceeded, and already received 23,400 shekels after the lines were installed, while the walls were not yet complete. Subsequently, someone stole the wires out of the wall. Pl demands that def pay him 2,000 shekel for new wires and 6,000 shekels for new work, if they want him to finish the job. Def say that pl was hired to have the electrical work completed, which he must thus see through, by buying new wires and completing the work. Pl’s responsibility increased when he put in the wires before the walls were completed, as it is easier to steal wires in that case, and he did not warn def and ask permission to take the risk. Pl responds that such theft is uncommon, and there are professional preferences to installing the lines in this way. Therefore, he did not feel a need to discuss the matter.

Beit din brought two expert witnesses to determine whether there is a minhag about responsibility for theft of building material that has already been installed and about the price to reinstall wires. On the former, there was agreement that in a case where the worker was already paid for that part of the work, it is the homeowner’s problem.

Based on classical halachic sources, as well, once the wires were incorporated into the house, they become def’s property and thus responsibility. How the acquisition is made ostensibly depends on the machloket whether movable objects that become attached to the ground obtain a status of ground (see Rama, Choshen Mishpat 95:1, regarding oaths). However, the Pitchei Choshen (Kinyanim 2:(8)) proves that regarding kinyanim, everyone agrees that they are treated like ground. Thus, the money that was paid for what was done, including for the wires, could have acquired it for def. There are varied opinions as to whether kinyan chatzer (the object being in the domain of the buyer), which works for objects that become attached to the ground (K’tzot Hachoshen 95:3), applies to a domain which is not protected on behalf of the buyer (See Rama, CM 200:1; Shach and K’tzot Hachoshen ad loc.).

If pl is willing to continue the work, he is entitled, based on the experts, to an additional 4,700 shekel to compensate for the stolen wires and for the necessary work. If he does not want to redo the work, there is no binding obligation to do so, but in such a case, the amount of money that it will take for someone to come in and finish the job will be subtracted from pl’s quote of 49,700 which pl is due, even if it requires pl to return some of the money that he has already received (see Shulchan Aruch, CM 333:4). Even though pl and def did not sign a contract (see Pitchei Teshuva 333:2), pl still has a moral obligation to finish the job (S’ma 333:1).


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