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Case: The plaintiff (=pl) had his house built, including a retaining wall between his property and that which the defendant (=def), a construction company, was paid a set price to build. When def later built the adjacent house, they, in some places, added on to the wall. Pl demands that def pay for half of the cost of the wall pl built (36,250 NIS), which equally benefitted def. Def claims that they are exempt because pl lost nothing from the fact that def also benefitted from the wall. Def also rejected the assumption that pl’s wall helped them, as it made adjustments necessary that made the project more expensive.

Ruling: Beit din rejected the legal claim of exemption from paying for benefit they might have gotten from pl’s outlay (the sources/logic were not appealed). However, pl failed to prove that what he built helped def, and therefore there is no ruling for payment.

Appeal: Pl pointed out that they brought expert witnesses regarding the value of the wall and the need for a wall. If that did not suffice, beit din should have arranged an expert witness to determine the extent of def’s benefit from the wall, instead of ruling that because they did not know, no payment was coming. He also claims that since the difference between what pl built and the addition that def did was18,769 NIS, def should have had to pay at least half of that, without needing an expert. Def rejects the appeal because the failure to bring an expert is not one of the grounds for appeal (which are: a mistake in Halacha, a clear mistake in the understanding of the case, a mishandling of the adjudication). Def argues that pl had enough opportunity to prove whatever he wanted to, and pl’s experts did not prove there was a net gain for def from pl’s wall.

P'ninat Mishpat (802)

Beit Din Eretz Hemda - Gazit

695 - Agent who Did Not Set Agent’s Fee

696 - Did Beit Din Research Enough?

697 - Did He Leave the Elevator Work “Between Floors”?

Appeal ruling: Pl’s claim for the need for an expert has the potential to be a valid reason for appeal, because if he is clearly right, then beit din mishandled the adjudication. Still, though, the appeal judge rejected the claims. The ultimate obligation for proof is that of the claimant (Shulchan Aruch, Choshen Mishpat 28:5). It is true that beit din is allowed to initiate the investigation of facts that were not proven by bringing witnesses, but it is still the claimant’s responsibility to see to it.
In this case, beit din went beyond the requirement and made significant efforts to bring experts, starting with the engineer who designed the plans for both sides, but as the sides were told, the engineer refused to take part. Beit din looked to several other experts and one who they decided upon asked for the building permit and several measurements, to which pl complied only partially. Since pl did not cooperate fully, he cannot complain about the matter. Regarding the claim that it is obvious that the partial wall was helpful, this is simply not always the case, as the way additions and an original part of the wall interact are complex and should not to be taken for granted.

P'ninat Mishpat