Beit Midrash

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based on ruling 80010 of the Eretz Hemdah-Gazit Rabbinical Courts

Receiving One’s Due in a Joint Building Project – part II


Beit Din Eretz Hemda - Gazit

Adar II 12 5782
Case: The defendants (=def) are neighbors who are building a column of reinforced rooms as an extension to their apartments. The ground-floor apartment owner (=sel) signed his agreement to plans presented to the municipal planning board before entering negotiations to sell the apartment. During negotiations to buy sel’s apartment, the plaintiff (=pl) demanded that sel renege on his agreement to the plans, which he did. In the meantime, the planning board rejected the plans to build at location A and recommended location B. Pl, now an owner, rejected location B because of its impact on his garden, but agreed in principle to location C, in return for 45,000 NIS for using his ground as the column’s base. The sides decided to not hold up the building and signed an agreement for a parallel process of arbitration in beit din. Pl is suing for the 45,000 NIS. Def claims that pl may not object to the building since he bought the apartment after sel approved the plans; pl had no right to pressure sel to renege. Def is countersuing, in addition to expenses, for the value of his work to design and promote the project with the planning board, as pl is also benefitting from the new room and having his apartment’s building violations rectified. Pl says that he accepted beit din just for his own claim and not for def’s counterclaim.

Ruling: [Last time we saw that sel/pl were not bound by sel's original commitment and that pl can charge for use of the property, albeit not an exorbitant price like 45,000 NIS.]

Beit din’s authority to rule on the counterclaim: First, while the only specific example mentioned in the sides’ arbitration clause was about def’s possible payment to pl for using his ground, the clause was written in an open-ended manner, including the terms "all claims" and "the sides, one against the other." Therefore, it is wrong to limit the litigation to claims without considering directly related counter-claims. Additionally, our beit din’s arbitration agreement, which the sides signed later, explicitly includes counterclaims arising from the disagreement, even those which the sides raise as the case proceeds. Therefore, beit din has full jurisdiction.

Payment for def’s services: Both sides agree that def did work of significant value and that he made no demands for payment before adjudication began. Def explains that as long as pl was also helping the joint effort by providing the ground, he did not make demands, but now, he has the right to counter pl’s demands with his own. When one performs services on behalf of another with the latter’s knowledge, the recipient needs to pay unless there is proof that he waived such rights (Rama, Choshen Mishpat 264:4). Therefore, pl has to pay, but not as much as def demands because many homeowners in the building benefited, and one cannot make the demand of payment from only one.

Beit din rules based on compromise that is close to din that the two obligations should cancel each other out, and neither side pay the other. This is the way the sides should have and hopefully in the future will approach joint projects that include gain and sacrifice for all.
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