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Damages of Delay in Home Construction – part I


Various Rabbis

Adar II 21 5779
Based on ruling 76070 of the Eretz Hemdah-Gazit Rabbinical Courts

The plaintiff (=pl) bought from the defendant (=def), a real estate developer, an apartment "on paper." Their contract set, among other things, a date for receiving a completed apartment. Def missed the date by a wide margin. [Much of the p’sak deals with compensation for the buyer during the delay]. During August 2014, def sent letters to buyers indicating that the apartments would be ready soon and recommending signing up their children in local schools, which pl did. The apartment was ready only in Oct. 2015. In the meantime two of pl’s three children went to school in the new city while the family remained where they were (16 kms away). Pl demands compensation for the need to buy a second car and the price of transportation. Def argues that such damages are too indirect to obligate, that many of the claimed expenses are exaggerated, and that the legal obligations to compensate a buyer for delays at a high rate for rental is meant to cover side expenses such as these.

Ruling: The Mordechai (Sanhedrin 707, accepted by the Rama, Choshen Mishpat 14:5) says that if Reuven tells Shimon to join him in beit din in a distant place and Shimon goes but Reuven does not show, Reuven has to pay all of Shimon’s expenses. Most poskim apply this concept to a broad range of cases where one’s instructions turn out to be damaging to the one who carried them out (Pitchei Teshuva ad loc. 15).

An apparent contradiction may help set this matter’s parameters. The Rambam (Zechiya 6:24; also, Shulchan Aruch, Even Ha’ezer 50:3) rules that if a fiancé makes a customary engagement party and his fiancée breaks the engagement, she must pay for the food because she caused him to waste money. The Ra’avad (ad loc.) asks from a gemara (Bava Batra 93b) that if one bought defective grain and planted them with no yield, the buyer only gets back the price of the grain, not the costs of planting. The Ra’avad deduces that if the damage came from the buyer’s actions, the seller is exempt even if he encouraged it. The Maggid Mishneh (ad loc.) distinguishes that if one followed the other’s recommendation for his own planned gain, he is not entitled for compensation for the expense. In contrast, the fiancé made the party due to obligation. R. Akiva Eiger (I:134) asks from the Rosh (see Shulchan Aruch, CM 333:8) that if Reuven tells a craftsman that if he makes something he will buy it, Reuven is required to pay for it. R. Akiva Eiger distinguishes between a decision one makes based on a recommendation and one he makes based on an explicit order. No one explicitly told the buyer to plant the seeds.

The Maharik (133) rules that even if the one who acted might have suspected that the other person would not keep his promise, if the assurance was part of a relationship of agreement to cooperate, there is payment. In this case, then, when pl said explicitly that they should sign up their children in the local school and this was done within the framework of def being obligated to provide an apartment, there are grounds for payment.

Next week we will deal with the questions of whether pl’s expense claims were accurate and justified.
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