Shabbat Parashat Shemot 5779

P'ninat Mishpat: Undelivered Windows – part II

Case: The plaintiffs (=pl) were building a house and ordered custom windows from the defendant (=def). They told him that it was crucial that they receive them by the end of August, as soon thereafter they would be moving in. Pl was to pay half the cost at the time of signing the order and half at installation. Pl worked on finishing the details of the order in late June. Def asked many detailed questions, many of which pl argue were irrelevant and impossible for them to answer themselves. By the time all of this was worked out, def claimed it was too late for the order to come in a manner that the work would be done in time. Def agreed to install temporary windows to enable pl to move in, but demanded additional money up front. Pl refused and spent 10,000 shekels on having someone else install temporary windows. Pl demands that def install the windows they are supposed to for the original price and subtract from the money due to him the money they spent on temporary windows. They argue that it was def’s failure to handle his responsibilities on time that caused this outlay. They also claim approximately 50,000 shekels for expenses that the delay in installation caused them in finishing up the building project and for their need to extend their previous rental contract. Def demands full payment for the windows that he already installed and compensation for the damage that the lack of payment impacted him in regard to cash flow.  

Ruling: Last time we saw that def was responsible for the delay; now we begin to look at the specific financial obligations.

When a worker improperly backs out of a job he accepted in such a manner that it causes a loss to the employer, the employer can hire someone to take his place and require the worker to pay for it (Bava Metzia 76b). Although def did not quit, the fact that he was responsible for being late enough to cause major damage makes the cases equivalent.

The question is, though, how much can pl spend? Rashi (Bava Metzia 78a) says that he can only withhold that which the worker already deserves for what he has done. The Rosh (ibid. 6:6), posits that he can take money “from the worker’s pocket” as long as it does not exceed the amount promised for the whole job, and this is the more accepted position (see S’ma 333:25; Shach ad loc. 32). The 10,000 shekel spent on the temporary windows is theoretically acceptable. Our expert concluded though that it was not necessary to spend more than 7,000 shekels on temporary windows, and pl’s decision to get more than the most basic windows is not acceptable. Because pl was acting under pressure though, we feel they are entitled to 7,500 shekels.

Def will have to take out the temporary windows before installing the permanent custom windows. However, def will get to keep the temporary windows, if he likes, for the company’s future use.

Next time we will deal with other damage payments.

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