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Ruling: We saw last time that def should be fully refunded for whatever was unusable because they were seriously blemished and it was hard to notice it initially. We will now discuss the countersuit.
We are happy that def lowered the countersuit, as the claim for wasted expenses is covered by the claim for lost revenues (in order to have gotten paid by bk, he had to undergo those expenses).
One deserves compensation from another who caused him to lose revenues only if the revenues were clearly lost because of him (see Eretz Hemdah-Gazit ruling 69020). In this case, despite the problem with the brass forms, def basically admitted that had he noticed the problem before the gabbai and decorator did or had he not quarreled with them, he would have been able to have the blemished parts replaced and gotten paid. His reputation also would not have been impacted. Therefore, he is not entitled to the full claim of losses.
The Shulchan Aruch (Choshen Mishpat 232:21) rules that if one sells a flawed object that needs to be returned, the seller must pay for the buyer’s expenses only if the seller was aware of the flaw. In contrast, if one gave bad financial advice to his counterpart, he must pay even if his mistake was accidental (ibid. 306:6). The Ramah distinguishes between the cases in that someone who sells has no choice but to sell, and therefore he is exempt from paying for indirect damage, whereas one who does not know how to give advice should not be giving it. Our case falls in the middle and depends how one reads the Ramah. It seems though that the important thing is that def paid for the work and not for the advice to rely on the work, and indeed def came often to inspect. Therefore, pl does not have to pay for the fact that def relied upon their work. There is also strong enough grounds for def to have noticed imperfections that he should have inspected better before relying on it, and therefore he cannot extract further money from pl.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
633 - Operating a Preschool in a Private Building – part I
634 - Unartistic Material for Artistic Work – part II
635 - Unartistic Material for Artistic Work – part II
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Beit Din Eretz Hemda - Gazit
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