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- P'ninat Mishpat
The plaintiff (=pl) worked as a gardener for the defendant (=def). He was originally supposed to do a certain set of tasks for 30,000 shekels, for which he was given five checks (dated for different times) of 6,000 shekels. Later it was decided that he would carry out fewer jobs and receive 23,800 shekels. Pl cashed three checks and received 2,000 shekels in cash (a total of 20,000 shekels). Pl claims that he returned two checks for a total of 12,000 shekels, much of which was to be given to him as he finished certain jobs that def felt were incomplete. He claims that even after several requests, def did not provide lists of things to be fixed. He also claims that he did additional services for which he was yet to be paid, which he wants along with the outstanding 3,800 shekels. Def responds that he has no problems with the work that was done, but that the returning of the checks (after all the work was done) is evidence that pl was mochel (relinquished rights to) the outstanding pay for the original and additional work.
Ruling : The Shulchan Aruch (CM 12:8) rules that mechilla does not require a kinyan in order to be binding. The K’tzot Hachoshen (12:1) discusses whether the mechilla has to be explicit and sides with the Maharit that if the circumstances are such that it is clear to all that there was implicit mechilla, it is binding.
Regarding pay for the additional work done, there was effective mechilla for two reasons: 1) When the sides agreed to the revised price of 23,800 shekels it implied that this would represent full payment for any related work pl would perform unless there would be agreement on further pay. [Ed. note- one could take issue with this line of reasoning.] 2) When, after the additional work was completed, pl returned the two checks pending payment of the balance for fixing up the job, it was clear that he would not be demanding more than 23,800 shekels. Pl did not succeed in explaining why he returned a second check, as one check would have brought the amount to 24,000 shekels. Apparently, then, he had intended that the total pay would be less than 24,000 shekels and was mochel on his right for pay for the additional work.
The mechilla was done at a time when relations between pl and def were good; they have since soured. One cannot subsequently demand money that was waived out of good feelings because mechilla, when done, is a permanent act, not a conditional one (see Shoel V’nishal II, CM 15).
It is not clear that, regarding the work that was already done, there was mechilla, as pl’s claim that he agreed to suspend receiving payment until he fixed matters regarding the previous work is plausible. A possibility of mechilla does not excuse one who was originally obligated from payment. Therefore, def must pay pl 3,800 shekels.
P'ninat Mishpat (832)
Various Rabbis
70 - Paying an Agent For a Deal That Did Not Go Through
71 - Signs of Mechilla (Relinquishing of Rights)
72 - Determining Whether a Transfer is a Gift or a Loan
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