Shabbat Parashat Emor 5773
P'ninat Mishpat: Rent on Ruling Based on Unclaimed Claims(from Hemdat Mishpat, an excerpt from an Eretz Hemdah-Gazit Rabbinical Court ruling)
Case: The defendant (=def) worked as a construction supervisor for the plaintiff (=pl). Pl claims that def’s negligence caused damage in the construction and is seeking damage payment. Beit din did not find sufficient correlation between def’s negligence and any damage but recognized that def did indeed not work as he was contractually obligated.
Ruling: While beit din did not accept the claim of damage payment, they felt that there were grounds to demand a reduction in the fees due to def for his incomplete work, with the appropriate reduction being less than pl demanded for damages. However, pl did not demand a reduced salary. Is beit din allowed to make that claim on pl’s behalf?
The Rama (Choshen Mishpat 17:2) rules that if beit din sees that a plaintiff deserves more money than he asked for, they are not allowed to grant the larger award. We must analyze whether the Rama’s logic applies to our case.
We begin with the reason for the Rama’s ruling. The S’ma (17:28) says that we view the lack of a complete claim as mechilla (relinquishing of rights) to the unclaimed element. Even if the mechilla was based on a mistake (i.e., he did not realize how much he deserved), it is still binding (Netivot Hamishpat 17:1; K’tzot Hachoshen 17:3, based on the Rivash).
The Shach (17:15) rules that mechilla based on a mistake is not binding and says that the reason we do not raise the claim on the plaintiff’s behalf is that we assume he had informed mechilla. This is the approach of most poskim (see Tumim 17:15; Aruch Hashulchan, CM 17:19). Accordingly, if we have reason to believe that the lack of a claim was based on ignorance rather than mechilla, beit din can indeed make the claim for him. The Tumim, therefore, distinguishes based on the level of legal expertise of the litigant. In our case, it is apparent to beit din that pl was unaware that he could demand a reduction in def’s wages, and thus according to the Shach, beit din may award it to him.
It is also possible that the reason pl did not demand a reduction in salary is that he requested full damage payment, which, if accepted, would have made a reduction in salary inappropriate. Therefore, it is not clear that there was mechilla on the salary reduction given the ruling that rejects damage payment.
Furthermore, the Rama’s limitation on “helping out a litigant” with a claim refers to giving him more than he asked for, which is not the case here, where he would receive less than he claimed, just that it would be for a reason he did not mention. This idea is cited in the name of Rav Elyashiv (Kovetz Teshuvot I:197), regarding a case where a wife expelled her husband from his house. He demanded payment for his new lodgings, to which he was not entitled, not realizing that he was entitled instead to rent for her using his house.Thus, in this case, it is proper for beit din to require def to return some of his salary.
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