Dealing with Shortcomings of Building Project | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The plaintiff (=pl) hired the defendant (=def) to carry out a major expansion project, with charges in the contract of 950,000 NIS. Pl has paid 815,000 NIS. Pl has complaints of many flaws in the work, which he wants to fix through a different contractor, for a price of 73,550 NIS. Def agrees to 24,730 NIS of the charges, but there is a general question if def has the right to fix them himself. Def made claims of 23,430 NIS for extra work not included in the original agreement; pl agrees to 19,007 NIS. The two sides disagree about how broadly to fix/replace damaged floor tiles. The contract states that for every week that def is late in finishing the job, 1,500 NIS will be taken off from the money due him, and the sides disagree on this condition’s implementation. The job was finished around two months late. [Most of the ruling is on technical matters and involves the report of an expert in building. There was a tremendous amount of agreement and honesty on both sides. We will focus on a few fundamental points.]

Ruling: Def’s ability to do the repairs: The contract requires a period at the end of the project for fixing deficiencies within a short period of time. Pl was able to document repeated requests for such work, and def was very slow, for whatever reason, in coming forward to work. The Shulchan Aruch (Choshen Mishpat 306:8) says that a worker who was warned to fix his work and does not do so can be fired. It suffices for him to be warned to fix, and he does not have to be warned that he will be imminently fired. As far as the time frame, not only were the delays objectively unacceptable, but also they were not in line by the standards spelled out in the contract. Therefore, def lost his right to fix the problems himself.

How to fix the tiles: The shade of tiles that were installed are no longer available. Although def blames pl for not ordering enough tiles to be able to switch those that must be replaced, according to the expert, pl ordered more than enough. At one point, def admitted that the first tile setter he brought was not professional enough. According to the expert, the number of problematic tiles makes it proper to switch the tiles in all the "public areas," which he estimates as costing 27,489 NIS.

Payment for lateness: Pl demanded to take off 13,000 NIS for lateness, and def agreed to 10,000 NIS. Def does not feel obligated for the two weeks he attributes to the worker’s absence due to exposure to Covid. Beit din rejects that claim. It is true that one is exempt from obligations that he ostensibly is bound to because of oness (extenuating circumstances). However, since def signed the contract a year into the pandemic, he was aware of the likelihood of delays due to Covid and yet he still obligated himself without condition (see Rambam, Mechira 19:6). Although one could have exempted def based on asmachta (he didn’t believe the obligating circumstances would happen), here since we are not making def pay but only receive less payment, asmachta is not an exemption (based on Shulchan Aruch, CM 207:11).