Shabbat Parashat Balak 5783

P'ninat Mishpat: Did the Renovations Cause Damages?

Case: The plaintiff (=pl) hired the defendant (=def) to do renovations in his father’s (=fath) apartment, including work in his bathroom, such as changing the tiles and switching the bath, but not the pipes under the bath. A few months later, a leak appeared in the apartment of fath’s downstairs neighbor (=nei). Def, who lived at a distance, told fath’s family that it sounds like it came from the heating system, and closing it off seemed to help. Pl and his brothers took care of fixing nei’s damages. Half a year later, there was another leak by nei and cracks developed in some of the tiles that def installed. Def replaced the cracked tiles, even though he claimed that the cracks came from movement of the ground, not flawed installation. A few months later, there were further cracks in the tiles and water stopped flowing to the bath’s drain. Def said he would come to deal with the situation if pl would bring a neutral expert to assess if the problems stem from def’s work. Instead of arranging this, pl’s brother hired a different contractor to fix the problem; he took 7,000 NIS. Based on what the second contractor said to pl’s brother, pl claims that def changed things under the bath, using the wrong material, and he is therefore responsible for the damages. Pl demands 10,000 NIS for various outlays and distress. Def denies making those changes and says that if he did, he would know not to use the material that was claimed.

Ruling: Pl does not have proof that def’s actions caused the damages. Of course, one of the major rules in monetary law is that one who wants to extract money has to prove it is called for (Bava Kama 46b).

On the other hand, in many cases, the one who denies a claimed financial obligation has to make a Rabbinic-level oath (shvu’at heset) that the claim is not true. In lieu of the oath, which is no longer administered, a partial payment is made. However, the plaintiff’s definite claim is a requirement of a shvu’at heset (Shulchan Aruch, Choshen Mishpat 75:17). In this case, pl claims that he knows that def is responsible, but this knowledge comes from what his brother says in the name of the second contractor. Regarding such a case, the Rama (ibid. 23) cites two opinions on whether one can administer an oath based on the testimony of another, who did not testify in beit din. Even according to the opinion that this is a valid source, that is only when the litigant can attest to the witness’s reliability, which pl is not able to do. Therefore, there is no need to award pl money by means of compromise.

There is another reason that pl has little room for complaints against def. Def responded promptly and responsibly to fix that which needed fixing, even when it was likely not his responsibility, and he was willing to continue doing so, if a neutral expert thought he was responsible. It was pl’s brother’s decision to have someone else take over the work and make it impossible to figure out if def was responsible. This is another reason not to take any payment from def without proof.

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