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Shabbat Parashat Vayechi 5782

P'ninat Mishpat: Paying for Changes to Building Project part I

(based on ruling 79127 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) hired the defendant (=def), a contractor, to extend his home, with a 55,000 NIS contract for the frame and 21,132 NIS for the interior. The agreement was for pl to provide all the materials and def to be paid only for work, but def ended up providing many materials, for which pl paid 44,000 NIS. After the agreement, def asked pl for a 150,000 NIS short-term loan, for which he was to receive a 2,000 NIS reduction on the contract. The loan has still not been repaid, although most of it is covered by offsetting pl’s obligations to def. (Beit din criticized def’s non-payment without permission, but pl did not request compensation for this). During the work, def asked for an increase in charges due to heightening expenses, and they agreed on 6,000 NIS. A few days later, def reneged on that agreement, claiming that pl’s changes to the plans during the building require a total increase of 21,000 NIS. Pl disagrees because def’s site supervisor, who suggested the changes, implied that they would not increase the cost. Also, def should not have charged for transportation of materials, which should be included in his responsibilities. Def also claims that the materials he provided, which were not in the contract, cost 56,158 (not 44,000) NIS, as they were more expensive than he had estimated. The two also disagree about whether def had promised pl that 1/3 of the fee would be without VAT.

 

Ruling: Added expense of materials – Since this was not in def’s contractual obligation but he was asked to do so as a shaliach doing a service on pl’s behalf, pl is required to pay whatever reasonable price def paid for it (def provided valid receipts). Only if def had overpaid would pl have a claim (see Shulchan Aruch, Choshen Mishpat 182:3).

Charges for changes – The misunderstanding occurred largely because pl interacted with def’s workers rather than with him, and they suggested improvement without discussing price. On the one hand, it was wrong of def, who knew about the changes, to not inform pl of their cost, considering pl’s running a tight budget on the project. Although the contract mentions price modifications for changes, they should be clear. On the other hand, charges for changes to building projects are normal, and it is not always feasible to stop the work each time to negotiate its price. The majority of the dayanim put the onus on def, who is the professional in this matter. On the assumption that pl would not have wanted the improvements at the price def demands, def is considered like one who did work for another without permission. Although the property owner must pay for any benefit from the work, our case is considered like that of one who tells the worker to take back his additions, who is exempt from paying (Shulchan Aruch, CM 375:6). According to one dayan, def should not benefit without paying anything for it, and the idea of taking back additions does not apply here because it is unfeasible here to undo what was done, and therefore 30% of this claim should be accepted.

We will continue with other elements next time.

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