Shabbat Parashat Naso 5784

P'ninat Mishpat: Profits from Formerly Joint Swimming Pool – part

Case: The defendant (=def) owns vacation units. In 2013, the plaintiff (=pl) agreed to install at def’s location a large but movable swimming pool for def to operate. No written agreement exists regarding the terms of profit sharing. In 2021, pl demanded to get the pool back and was told that it was dismantled. At that time, def wrote a signed admission that the pool belonged to pl, that he used it, and that he had to pay for its value. Later in 2021, def informed pl that the pool had been burnt in a brush fire. Pl claims that he was to receive all of the profits from the pool until they covered its cost (16,769 NIS) and subsequently, they would split them equally. (Pl guesses that the direct profits were 48,000 NIS, and he points out that its presence boosted def’s business). So far, he has received nothing. Def claims he stopped using the pool in 2015 due to its lack of a water heater, and that he made his own pool by excavating a boulder. Although he made up with pl to sell the pool, he did not succeed to do so. Def claims that he signed the admission because pl was embarrassing him publicly and that it is not true. He admits to needing to share some profits, but, giving no estimate of how much, just claimed that pl exaggerated profits.

Ruling: Last time we saw that pl owned the pool but needed proof for his version of the profit sharing. We saw that the assumption is that def’s continued use of the pool after the decision to stop the partnership obligated him to pay.

Length of time the pool was used – There now is a pool on a boulder and there are testimonies of its use somewhat before 2021. However, def also claimed that there was a time he used another pool, and for this def has no proof, and thus there is no reason to accept the existence of an unknown one. Therefore, the testimonies of use of a pool from 2013 on will be understood as referring to the pool in question. Def’s admission in early 2021 of use of pl’s pool implies it happened in the not distant past. Therefore, we will assume usage through the end of 2018.

Responsibility for damage to pool – Any damage based on the wear and tear of use is not def’s responsibility because he was allowed to use the pool. Regarding the fire, since def had already asked pl to take care of the sale and by that time was not using it, def was obligated only for negligence, which was not demonstrated (see Rama, Choshen Mishpat 120:2).

Expenses of the adjudication – According to the majority of dayanim, since def did not keep a calculation of how much profit there was to share and because he did not pay anything for years, until the adjudication, he improperly caused the need for adjudication and must therefore pay pl 4,000 NIS for it. According to one dayan, since during the adjudication, def cooperated reasonably, and he was required to pay based on it (see next time), it is not justified to make him pay extra for expenses.

The heart of the ruling, how to calculate the actual obligation, will be presented next time.

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