Shabbat Parashat Pinchas| 5767
Ask The Rabbi
Question: We hired a contractor to do major home renovations. His prices for various jobs were relatively high, but he told us that he would throw in major parts of the work we asked for as a bonus. After doing about 75% of the total job but only around half of the “bonus,” he became sick and had to stop working. He now demands 85% of the set price, pointing to the line items he completed and their corresponding prices on the written work order. He promises to make up for the bonus items with jobs of similar value after he recovers. While we feel bad for him, his illness not only complicated our lives, but we also had to pay another contractor good money (more than 25%) to finish up. We do not want to settle for future services of questionable value to us. How much should we pay?
Answer: We will answer your question with two reservations. First, we refer to the letter of the law, not to matters of compassion for a worker who got sick and the value of avoiding fights. We leave those elements to you. Also, we cannot rule conclusively on monetary matters without hearing both sides in the framework of a din Torah. We can only discuss your apparent rights and obligations based on your depiction.
Clearly, it is now common for salesmen of different types to present package deals as if you pay for one thing and get another for free. This is sometimes accurate, as in a case where one buys a car and receives a key chain as a present. However, if you clearly ask for, say, 12 projects done in your home and the contractor makes it worth your while by promising 4 of the major ones for free, it is clearly a package deal with one price for the total job. Thus, you do not have to pay the full list price of the work and can deduct for the undone work that was “free” in name only.
What happens when people arrive at a package deal of which only part is carried out as designed? Consider a precedent in the realm of a sale. Reuven agreed to buy from Shimon land and date trees, but Shimon did not provide the trees. The Rambam (accepted by the Shulchan Aruch, Choshen Mishpat 216:5) says that, in such a case, the whole deal is off, and the buyer can return the field and does not have to agree to compensation for the trees. The Rama (ad loc.) accepts the opinion that the sale of the land stands. In certain cases, all seem to agree that half a sale does not stand alone. For example, if one tried to sell a large field but was actually capable of selling only part of it, the buyer can reject the part that should have worked (Shulchan Aruch, ibid. 182:8). The Netivot (ad loc.:8) makes some distinctions, including whether the parts of the sale form one unit or are more easily separated.
However, your case does not lend itself to voiding the whole agreement. You cannot “return” the services you received but must reckon with the work that was done. Your case is similar to the gemara (Bava Metzia 79a) about Reuven who rented a donkey from Shimon to transport wares and the donkey died along the way. Reuven has to pay Shimon for the part of the trip he made. The Rama (Choshen Mishpat 310:2) limits this to a case where Reuven can salvage the situation by selling the wares where they are or finding alternative transportation. Otherwise, he need not pay when the job was not completed and he received no benefit. However, if there was benefit, even if the alternative brought the total cost to more than was originally agreed to, if it is only moderately so, Shimon still gets paid for the work he did. We do not deduct the added cost when it was caused by matters out of his control (see Pitchei Choshen, Sechirut 3:(33)).
In broad terms, the amount you halachically owe should be calculated as follows. Determine the relative market value of the work completed as a percentage of the whole job. Multiply that percentage by the total price agreed upon for the work (irrespective of whether it is the average market price). Use that number as a basis of arriving at an appropriate agreement.
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Hemdat Yamim is dedicated by Les & Ethel Sutker of Chicago, Illinois
in loving memory of Max and Mary Sutker and Louis and Lillian Klein, z”l.
May their memory be a blessing.