Shabbat Parashat Ki Tavo 5777

P'ninat Mishpat: Was Work Properly Done?

Case: The plaintiff (=pl) bought “on paper” an apartment  in a yishuv from a contractor (=def). The contract spelled out payment and construction schedules, at the end of which pl was supposed to receive ownership. (In Yehuda and Shomron, the equivalent to ownership is called bar reshut, and it represents practical control under the auspices of a department of the Jewish Agency.) Toward the end of the building, pl was supposed to make the last payment (with the use of several post-dated checks), but they have refused to do so with the claim of problems with def’s work. Def now wants to cancel the sale due to lack of payment and with the claim that pl’s father’s tyrannical behavior has caused delays and infighting with other members of the building project. Pl refuses to cancel the purchase and says that def wants it because prices have since gone up.

Ruling: The nature of the relationship between pl and def is that def is a contracted worker, not just a seller of a future apartment. Pl cannot back out of the relationship because the building is being built for several families, and firing def would affect the rights of the others. Although usually a contracted worker can back out of the relationship, the Rama (Choshen Mishpat 333:1) rules that if the sides made a kinyan, the contracted worker cannot back out. The Pitchei Teshuva (ad loc. 2) says that a work contract is considered a kinyan in this regard.

Although pl had been late in payment in the past, since def did not ask to void their contract at the time, it is too late to cancel due to those violations. Regarding the present late payment, beit din appointed an expert to check the apartment, and he determined that it is not fit for occupancy (which is a condition for the last payment). Among other problems, there are dangers from incomplete electrical lines. Def wants to disqualify the expert with the claim that he has a relationship with pl. However, the expert reports that he has the mildest of acquaintances with pl, and since in other elements of the testimony, def wanted to rely on his report, beit din does not accept, at this point, that his objection is in good faith. Therefore, the present payment is not late, and it is then obviously not grounds to void the agreement.

Regarding the behavior of pl and his father, def did not bring any credible evidence that there was anything that would justify such unusual grounds to justify voiding a sale. The behavior cited that the representative of beit din saw during the visit to the building site was not atypical of the acrimony that often exists between litigants.

Therefore, def should continue construction until fit for occupancy. This stage should be confirmed by the expert. At that point, pl should give def the postdated checks according to the schedule found in their contract.

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