Shabbat Parashat Teruma 5777

P'ninat Mishpat: Backing Out of Joint Building Plans – part I

Case: The plaintiff (=pl) and the defendant (=def) both wanted to extend their apartments, which were one on top of the other, and decided to do so cooperatively, sharing an architect (=a#1) and preparing and paying for the various elements of obtaining a municipal building permit. In the midst of the process, pl convinced def to discard a#1’s plans and hire a new architect (=a#2). Pl decided to extend his addition with a balcony. Later in the process, def became concerned that this would compromise his apartment’s privacy. When the two sides failed to agree on how to solve the privacy problems, def appealed to the municipality to disallow the extension. Pl is suing def for the expenses, over 24,000 shekels, which are now wasted (especially both architect plans and fees for various stages of applying for a building permit).

Ruling: There is no question that def is not obligated to pay for the money spent on a#1. It was pl who initiated the change from a#1 to a#2 with the loss of money this caused. It can be demonstrated (beyond our scope) that the work done by a#1 did not save time or expenses for a#2 to follow up, and therefore, the expenses of a#1 were lost before def’s decision. 

One of pl’s halachic claims is that def should be obligated as a partner who caused losses to the partnership (see Shulchan Aruch (Choshen Mishpat 176:10), where such a payment is discussed). The classic cases of partnership are when the two invest together to pursue profit. Our case is different in that the two paid money to third parties for a joint purpose. The Shulchan Aruch (CM 77:1) says that if two lend money to someone together or bought something together, each is an arev (guarantor) for the money owed. While an arev has to pay if the lender is unable to, a partner is responsible even if the other partner is capable of paying. Thus, we see that not every two people who make parallel deals with a third person become partners.

Can we learn from the above halacha regarding a case where two people hire together a third person to do work for them? The Erech Shai (Even Haezer 50) concludes that two families who hire a shadchan are obligated to him like partners because each one gains from the work that the shadchan did even in relation to the other side. In our case, though, while the two hired architects together, the plans of the extension of each apartment are for separate benefits, and so the two are not obligated for each other. Furthermore, a beit din ruling (Piskei Din Rabbaniim XI, pg. 119) makes the following observation about creating a partnership. The sources discuss what makes a partnership binding, but in order for there to be a possibility of a partnership existing, there must be an actual agreement of the sides to have such an interconnected financial relationship.

Therefore, one cannot obligate def due to the possibility of partnership. [Next time we will explore whether there can be an obligation based on causing damage.]

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