Beit Midrash

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based on ruling in case 73081 of the Eretz Hemdah-Gazit Rabbinical Courts

What Determines the Builder’s Responsibility – part I

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Beit Din Eretz Hemda - Gazit

Tammuz 24 5781
Case: The plaintiff (=pl), a contracting company, built the defendant’s (=def) house among others in a project, and each claims the other owes money, based on a comparison between the original terms and what was actually carried out. There were various determinants for what needed to be done: 1. The contract; 2. Blueprints; 3. The specifications; 4. The decisions of the building inspector (=ins). Beit din’s expert began work to determine the factual basis for beit din’s decisions but requires beit din’s decision to form a ruling. The main dispute relates to the fact that pl built less than what was laid out in the contract and specifications. According to def, when something is clear in these documents, the inspector is not authorized to forgo them and exempt pl from paying the difference. Additionally, the contract gives special status to the inspector’s instructions only when they are written down in the project’s ledger, which ins did not do. Pl argues that since ins’ decisions were discussed with and approved by the landowners’ representatives, these decisions are authorized to uproot whatever was written elsewhere. Pl points out that the contract was the same for different types of apartments in the project, so that ins’ input was absolutely necessary and must be binding.

Ruling: A major part of the disagreement relates to the fact that there are different parties in the project. In actuality, the yazam (project developer) is the yishuv, who hired ins and was in charge of the major elements of the project on behalf of the different homeowners. On the other hand, the contracts, signed by individual landowners and pl, describe the agreement as one between individuals and a contractor. Therefore, pl views the decisions of ins, which were approved by the landowners’ representatives as having legal standing for all, even when they contradict the specifications that def (and others) had been given.

According to the updated rules of precedence in decisions, which def signed, ins is indeed authorized to make decisions. The rules do state that this is the case when it is written in the project’s log. It is possible to view that provision as essential, i.e., that an oral decision is not binding even when it is not disputed that it took place, or to look at it as only descriptive, i.e., ins is expected to write things down so that questions do not arise as to what he said, but when not in doubt, his decisions are valid. According to logic and common practice, the latter is correct; matters that are evident regarding parties’ intentions supersede written word (Tosafot, Kiddushin 49b).

Even though we accept ins’ instructions as determining that which should have been done, this does not mean that ins is authorized to relinquish def’s contractual rights. Therefore, if an element from the specifications was not carried out, def is entitled to have the value of that element reduced from the amount due to pl.
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