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

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Case: The defendant (=def) was hired by a beit knesset (=bk) to provide artwork, including some made of glass with forms 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 it, 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 pieces 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. Def refuses to pay because pl’s work was flawed and is countersuing for the 22,900 NIS in income he lost, around 5,000 NIS for wasted supplies, and an undisclosed amount for a diminished reputation. Pl responds that it was def’s responsibility to see any problems and have them fixed before attaching them to the glass.
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.