Shabbat Parashat Eikev 5783

P'ninat Mishpat: Contractors Fixing their Damages

Case: The defendant (=def) hired the plaintiff (=pl) to do specific renovations on his apartment. A subsequent list of work to do was added on later. Pl did much of the work and was only paid part of the money; he now demands further payment. Def claims that some of the charges contradict what pl said previously and that pl did some work improperly and caused damages during the work; altogether these deductions exceed what def might have owed. Def presented an itemized report by another contractor (=seccon) to corroborate his claims. [Most of the ruling deals with technical details regarding pricing. Our main focus is on concepts concerning the possibility of a contractor fixing blemishes in his work.]

Ruling: Seccon’s pricing is much higher than pl’s, which apparently indicates that they represent different levels of professional standards; def hired pl according to his prices and standards. Also, the objectivity of a professional hired by a litigant is always suspect. Therefore, we will neither base our rulings on seccon’s report nor require pl to take responsibility for minor aesthetic imperfections.

The Rama (Choshen Mishpat 306:8), regarding mistakes in the writing of a sefer Torah, posits that a worker is responsible for the type of mistakes that professionals of his type should not make, but that the sofer has the right to fix them. He also posits that if the worker fixed blemishes that professionals of his type are not responsible to fix, the employer must pay him for them. On the other hand, the Aruch Hashulchan (CM 306:15) rules that the employer can hire someone else to do the fixing if he does not trust the worker. The Pitchei Choshen (Sechirut 13:(41)) agrees with the Aruch Hashulchan, even if the new worker’s fee to be subtracted from the worker’s pay is higher than the original worker’s. In Eretz Hemdah-Gazit ruling 74005, beit din ruled that one can apply the Aruch Hashulchan only when there are verifiable grounds for not trusting the worker. Otherwise, hiring someone else to do the fixing is breach of contract, and the employer is in the weaker position (see Shulchan Aruch and Rama, CM 333:4). In this case, though, def had asked pl to fix certain clear flaws, and pl did not fix them properly. Therefore, def was justified in bringing someone else to fix it, and the cost can be deducted from pl’s fee.

Regarding damages pl caused, pl had the status of a shomer sachar (a paid watchman), who is obligated for damages, even if they were not based on outright negligence, as long as the damage was not beyond his control (Shulchan Aruch, CM 306:1). It is not a simple question whether the obligation is on the contractor or on his workers who did the damage. Pl was willing to take responsibility as far as fixing the damages, and in general, contractors are seen as the address for all such matters, since they choose the workers and deal with the employer. When it is possible and normal to fix the problem (as opposed to accepting the flaw as a fait accompli), the price of fixing is subtracted from the fee due the worker (Shach, CM 387:1).

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