Unartistic Material for Artistic Work – part I | Beit Din Eretz Hemda - Gazit | Beit Midrash

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P'ninat Mishpat

קטגוריה משנית

Case: The defendant (=def) was hired by a beit knesset (=bk) to provide artwork, including one made of glass with forms made of brass attached, for the aron kodesh, priced at 47,900 NIS. Def ordered the brass, specially cut into forms, from pl. and def came to watch the work progress. Def attached the brass to the glass and installed them. The gabbai and interior decorator came to see the work and objected to much of the artwork, claiming that the brass forms were sloppily made. An argument ensued between them and def, and def was replaced, after being paid only 25,000 NIS for the piece in question (part of the work remained; part was replaced). Def paid pl only a 5,000 NIS down payment, and pl are suing def for the remaining 10,000 NIS promised for the work. Def refuses to pay because pl’s work had been flawed and is countersuing for the 22,900 NIS in income he lost, around 5,000 NIS for wasted supplies, plus money for a diminished reputation. Pl responds that it was def’s responsibility to see any problems and have them fixed before he attached them to the glass.

Ruling: The artistic pieces were brought to beit din. Even to a non-expert’s eye, it was clear that the strips of which the forms were made were not of uniform width, which caused the lack of a smooth look, and had scratches and other imperfections. The fact that they were to be used for fine art was well known to pl, and they were not of that quality. Much of what was given could not have been fixed, but would have to have been replaced. Based on the context of the order, the average person would have rejected the brass strips, which provide the grounds for mekach taut (voiding the sale).

Does def’s delay in complaining about the imperfections preclude mekach taut? One must also consider that as opposed to a regular case of mekach taut where the object can be returned, since they have been firmly glued to the glass, they effectively cannot be returned. The Shulchan Aruch (Choshen Mishpat 232:18) rules that in such a case, if the bought object was used in a normal manner before the blemish was discovered, it can still be returned for full value. Def explained how due to the flimsiness of brass strips, the extent of the problem could not be appreciated until the art work was put up.

The question of whether def should have been expected to check the quality of the strips before connecting them to the glass relates to a Maggid Mishneh (Mechira 15:3), who brings two opinions on this fundamental point. Many poskim (see Pitchei Choshen, Ona’ah 13:9) point out that the requirement to check applies only when it can be done easily, which is not the case here. Therefore, def has to pay pl only for the part that was used, based on which, beit din estimates that pl needs to return 2,800 NIS to def.