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Shabbat Parashat Ki Tavo 5776

P'ninat Mishpat: Faulty Chimney part II

(based on ruling 74083 of the Eretz Hemdah-Gazit Rabbinical Courts

Case: The plaintiff (=pl) bought a fireplace/chimney from the defendant (=def) for 12,450 shekels, with the following breakdown: 8,200 for the fireplace, 2,250 for the chimney, 2,000 for installing the chimney. Two years later, 2.5 meters of the chimney corroded, and after asking def to fix it, pl bought a replacement part and fixed it himself. During the third year, the whole part of the chimney within the house corroded. Def did not respond to pl’s demands to replace it, and pl hired a professional to put in a better (complete) chimney for 4,700 shekels. Pl claims that since a chimney should last around a decade, the fact that it corroded so quickly is a sign that it never was an appropriate one. He claims that the fireplace he bought was hotter than def’s older models, and that soon after pl’s purchase, def switched to a more expensive chimney. Def argues that he buys chimneys from a chimney manufacturer on behalf of his customers and gives service for only a year. He assumes that the damage came from pl using wet wood, which he usually tells customers not to do (because he was in a rush at the time, he did not give def instructions).   


Ruling: [Last time we saw that def is obligated to refund pl for the ineffective chimney. However, there are both fundamental and technical questions that need to be addressed in order to determine the amount due.]        

Def claimed that there was no need to replace the part of the chimney that was outside the house. Pl said that he had to replace the entire chimney because otherwise the diameters of the parts would not be the same and the new company would refuse to give a warranty. Since we ruled that he was not entitled to the improved chimney, the latter claim is not accepted. However, when a sales item is found unfit due to a problem with an important part of it, we nullify the entire sale and do not just replace that part. That is because mixing and matching parts from different places is not a good idea (see Bava Batra 7a).

One should not claim that since pl changed parts of the chimney himself, we see that he relinquished rights (mechila) to payment for it. This is because it was misinformed mechila (Shulchan Aruch, Choshen Mishpat 241:2), as if he had known that there would soon be so much additional corrosion, he would not have replaced just certain parts of it.  

Def claimed that within the 4,250 shekels that were paid for the chimney, 1,250 was for drilling into the wall of the house and 750 was for installation and that he did not charge separately for transport. Due to the small amount of the claim, checking these claims with an expert is not worth the expense to the parties. Since the drilling improved the house for one who wanted to replace the chimney with another one, pl should not get a refund for its expense (see Shulchan Aruch, CM 375:1). Pl did not benefit from the installation in regard to putting a new one in. Therefore, ostensibly, def should have to pay 3,000 shekels.

Pl had one winter of full benefit from the chimney, after which the needs for fixing it made it unusable. Assuming twelve years of expected benefit from the chimney, that year of benefit was worth 250 shekels, which is to be taken off from the payment. Therefore, def must pay pl 2,750 shekels.

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