Case: The plaintiffs (=pl) were planning to move into a home they were building, and reached an agreement with the defendant (=def) to install special windows by a certain date. Pl paid tens of thousands of shekels – half of the order – as a down payment. Def came two months before the critical date and took measurements, yet much of the order was not ready on time. Def blames pl for not giving all the details necessary, especially the color of the internal shades. Pl responds that def never told him that such information was holding up the order. As the time to leave their old home and enter the new one approached, def agreed to provide temporary windows, but only if pl paid an additional quarter of the order, considering that half the work was already completed. [Last time we dealt with payment for temporary windows that pl had installed.] This time we will deal with the following additional claims: a penalty that pl claims to have paid their contractor for the delay in completing his work; payment for watchmen at the building site; time that pl took off to supervise the work; extra payment to extend the rental of their previous home.
Ruling: The Nimukei Yosef (Bava Metzia 46b of Rif’s pages) says that in a case where a worker’s refusal to complete his job caused damages and the hirer did not employ an alternative plan to avoid the damage, the worker does not have to pay for the damages. The logic is that the work stoppage is not a direct enough damage to obligate payment. The Haghot Oshri (Bava Metzia 6:2), though, says that damage caused by the work stoppage is dina d’garmi (semi-direct damage) for which one has to pay. The Rama (CM 333:6) says that for a lost opportunity, there is no payment, but if the aborted work causes actual damage, the worker must pay the damages. The Shach (ad loc.) says that there is no machloket among the Rishonim and that the matter depends on whether the hirer had an opportunity to avoid the damage. (The dayanim disagreed on whether pl could have been expected to find an alternative faster). The Gra (333:40) understands that there is a machloket in this case, and the Netivot Hamishpat (333:14) says that one can not be forced to pay.
Based on strict law, beit din could not extract money from def on these matters. However, the arbitration agreement enables beit din to employ compromise, which is appropriate for the following reasons. According to some poskim, payment is due. Even according to the others, the exemption is because it is a case of gerama (indirect damage). In such cases, there is still a moral obligation to pay, and beit din’s practice is to employ compromise in the case of moral obligations. Therefore, def should have to pay for much of the damages. This is tempered by beit din’s feeling that pl did not make all efforts to resolve the matter, including def’s suggestion to go immediately to a rav for dispute resolution.
Let us run through the different claims: contractor’s penalty – since it is uncommon to pay a contractor for a small delay in his work, payment is not justified; payment to watchmen – 67%; time pl took off from work – too indirect to obligate in the case of unintentional damage; extending rental payment – 50%.
202 - What Determines the Builder’s Responsibility – part II
203 - A Loan or a Partnership? – part I
204 - A Loan or a Partnership? – part II