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Ruling: [Last time we saw that it was proper for pl to compensate his tenants and that def had the right to build despite the inconvenience it caused. We now must determine if def has to compensate for the losses he caused pl.]
Does the fact that pl did not protest the plans mean he relinquished rights to do so? Indeed there is a concept that silence in such situations can count as permission (see Shulchan Aruch and Rama, CM 155:35). However, if the changes cause severe damage, silence does not suffice (ibid. 36), and arguably some of the problems in this case are included (see ibid. 157:4). Yet, the exceptions for extreme damage do not apply here. First, the Shulchan Aruch (CM 155:36) explains that we presume a person would not agree to such a thing. In our case, though, for the sake of mutuality, it is customary to allow such disturbances. Secondly, the sources discuss cases where the nuisances are for an indefinite period, whereas here it is only during construction. If the din Torah were between the tenants and def, we could say that under their circumstances (due to the need for quiet during the day), they would not have agreed (see ibid. 41), but that is not the case.
On the other hand, even if pl waived the right to protest, he did not waive the right for compensation. Certainly if pl’s windows would be smashed during construction, he would be entitled to payment, as permission to create a certain situation where damages might occur does not exempt from payment if the damage occurs (ibid. 1). On the other hand, the damage is directly from that upon which there was permission (normal, noisy work). Also, in general, many types of damage are considered too indirect to force payment in court.
Beit din is gratified that the sides agreed to compromise, although beit din anyway has the authority through the arbitration agreement to invoke compromise. Customarily, one who does renovations provides something of value to the building as appreciation/compensation, as def did. However, in this case, where def gained from his building and pl specifically lost, pl deserves extra compensation. Beit din obligates def to pay 2,500 shekels (around a third of the lost rent) as compensation based on compromise.
P'ninat Mishpat (832)
Various Rabbis
249 - An Apartment that Was Barely Livable
250 - An Apartment that Was Barely Livable
251 - Aborted Rental
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