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Shabbat Parashat Noach 5782

P'ninat Mishpat: Damages Ones Workers Might Have Caused

(based on ruling 79062 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendant (=def) bought an apartment adjoining the plaintiff’s (=pl) apartment and did major renovations. According to pl, during drilling in their joint wall, a drill bit pierced the wall and caused damage to pl’s wall and the side of the bathtub. Pl claims that he tried many times over a few years to get def to take responsibility. At first, he asked def to have his contractor take care of what needed fixing, but they were evasive. After warnings, pl had his own workers do the repairs, which cost 3,500 NIS. Pl is suing for that, 5,000 NIS for dozens of attempts to get def to pay, and 3,000 NIS for help in preparing the claim letter. (Later on he raised the claim to 16,305 NIS.) Def claimed that he was not elusive and was always willing to come to beit din. As far as the claim, he claimed that his contractor checked the matter out and saw no evidence that the damage happened at the time of and due to the work done for def. He argues that if ceramics fell from the wall because of vibrations, it means that they were not installed properly.     

 

Ruling: Pl provided a picture of the joint wall, which shows a clear crack in it. Def’s contractor testified, but beit din found his testimony lacking in credibility. Def also chose not to interrogate a witness for pl who said that one of def’s workers came in soon after the damage was done, admitted responsibility, and apologized. All of the factors together lead to the conclusion that the damage occurred as pl describes.

A homeowner is allowed to do work on his property but only if he can ensure that it will not cause damage to his neighbor’s property (see Beit Yosef, Choshen Mishpat 155; S’ma 154:38). While there are different opinions about the level of responsibility, there is a consensus regarding a situation called “his arrows” (Bava Batra 22b). The Rambam (Shcheinim 10:5) says that when there is immediate damage to a neighbor by one working too close to the other’s property, it is as if he damaged “with his own hand.” Since the work was done at def’s behest, def is responsible.

As far as claims of delaying and attempts to evade responsibility, pl was able to provide a great number of electronic messages sent to def with none of def’s responses showing an openness to adjudicate. Based on the timing, it is clear that def agreed to come to beit din only as pl’s suit in secular court was about to be heard. Therefore, while beit din does not usually make a litigant pay for the process leading to and of adjudication, that is when all acted in good faith. While we do not accept pl’s raising the claim after the litigation began without a good explanation, we do obligate def to pay not only the 3,500 NIS bill for the repairs (which were never coherently disputed), but also 4,000 NIS for the extra difficulties pl had in bringing him to justice due to def’s acting in bad faith.

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Nir Rephael ben Rachel Bracha
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