Shabbat Parashat Yitro 5783

P'ninat Mishpat: How Much Left to Pay Contractor?

Case: The defendants (=def) hired the plaintiff (=pl) to do major renovations in their home for 250,000 NIS. There was no contract or even itemized list relayed orally. Rather, along with the general discussion of what would be done, pl, who had a trusting relationship with def, promised  def that he would make their home “fancy.” Def paid around half of the fee and moved in. They found things done not well and hired an engineer to make a list of things that needed to be fixed or were missing. Pl agreed to take care of certain things but refused other things, and did not do a good job on part of the fixing. Beit din brought in its own engineer, who confirmed most of what def’s engineer found, based on which pl was not to fix anything else, but it was to be given to other contractor. There was also a disagreement between the sides on how much def had already paid.

Ruling: Pl claims he received 127,780 NIS. Throughout the deliberations, def claimed to have paid 140,000 NIS. When both sides were requested by beit din to itemize the payments, def changed their claim to 163,000 NIS. The rule is that once one has made a claim that obligates him, he cannot change it to one that exempts him/obligates him less (Shulchan Aruch, Choshen Mishpat 80:1). Therefore, we accept only their claim of 140,000 NIS, but that will be accepted because pl is trying to extract money without proof. Def were able to prove many of their payments and, due to the degree to which the sides trusted each other and the fact that some payments were indirect by paying other parties, we believe def. Def is not required to make an oath of modeh b’miktzat (after admitting part of the money demanded) because according to their final claim, they were not obligated and the fact that they are paying is only because they were not believed (see Shulchan Aruch, CM 87:7).

In a situation like this, in which the sides trusted each other enough to not itemize what was to be included in the renovation, it appears that def left it to pl’s discretion. While both agree that pl promised “fancy,” this is a term that can cover a broad range of possibilities. We also take into consideration that contractors are in the practice of describing their work as higher quality than what it really is. Beit din’s expert finds that the list of what pl included is reasonable for the description (the problem was in the quality of work). For example, although def’s engineer thought that def had a right to a three-phase electric box, we will not require that the standard one that pl installed be replaced. In our ruling, we will distinguish between those problems that are normally fixed, in which case, def will be compensated for having to pay for them to be fixed, and those things which are not usually fixed, in which case the compensation will relate to the reduced value.

After beit din went through 48 alleged problems with the work, accepting most, rejecting some, and compromising on others, the amount to be reduced from pl’s account is 103,933 NIS. Since 250,000 NIS had been coming to pl, def paid 140,000 NIS, and 103,933 NIS was to be reduced, the balance for payment is 6,067 NIS plus V.A.T.

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