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Case: The plaintiff (=pl) hired the defendant (=def) to serve as the mefake’ach (building inspector) for the house he was building along with his wife (they are now divorced). There was no contract, and his expected work hours and responsibilities were not set. The building plans called for a concrete supporting wall 12 meters wide by 6 meters high. Pl asked def for his recommendation about the kablan’s (contractor) idea to make a wall out of large stones instead. Def answered that a stone wall is just as strong, and so pl allowed the kablan to do so, after receiving instructions from def. The kablan used smaller stones than he should have, and so after some time, the wall collapsed. It cost 160,000 shekels to remove the stone wall and build a concrete wall. Because pl is unable to sue the kablan¸ an Arab from "over the Green line," pl is suing for his part (separate from his ex-wife) in the expenses – 80,000 shekels. Def claims that the decision to build the wall was fine, just that the kablan did not follow instructions, and so pl should sue the kablan if anyone. Pl’s wife also could have pressured the kablan to fix the wall while he was still working on neighbors’ homes. Def was not present when the bottom stones were placed, and when he came, they were covered with earth. Def was concerned that if he forced the kablan to dig out the foundation for inspection, the kablan might have quit, which would have caused losses. Therefore, he thought it was worth the small risk to not check. Additionally, def should not have to pay the cost of a cement wall, as pl could have fixed the stone wall for a small fraction of the price.
Ruling: [Last time we saw that a mefake’ach can be liable for his advice, but that the advice here was not the problem but the lack of inspection. We saw that a guardian does not have to check with beit din when he makes a judgment call.]
It would seem that even the Rosh, who does require a guardian to check with beit din, would not do so here because a court-appointed guardian has special obligations. This case is also better in that def did not cause damage; he just didn’t stop it. Also, the Tur and the Rama (Choshen Mishpat 290:13) say that a guardian needs permission only before he is officially appointed.
On the other hand, there are two reasons why def might be more obligated than a guardian. Here, it is natural to ask pl what he wants def to do (although it is likely that he would have made the same decision). Furthermore, def is not sure if he told the kablan not to cover the foundation, in which case he may have been negligent in that regard. In the final analysis, it is hard to categorically hold def responsible, but a compromise is in place – 50% of pl’s 50% stake (his divorcee has not sued) in the damage.
Beit din agrees with def that he can be charged only for the price of returning the stone wall to a sound state and fixing the floor that was damaged when the wall collapsed.
P'ninat Mishpat (832)
Various Rabbis
549 - The Extent of an Inspector’s Responsibility – part I
550 - The Extent of an Inspector’s Responsibility – part II
551 - Poisoning a Dog
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P'ninat Mishpat P'ninat Mishpat: Unsuccessful Transfer of Yeshiva – part V
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