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Ruling: [Last time we saw that the price estimate, not the plans, are the binding guide for what pl was obligated to do and def was obligated to pay.]
Mekach ta’ut – Mekach ta’ut can void agreements, but it must pass a high bar. Also, after a fair amount of work was done, def came to pl’s house with a payment and a bottle of wine in appreciation for pl’s good work. Pl presented himself as an expert contractor, which def has not refuted. The fact that he made mistakes due to a lack of experience with the location’s unique topography and soil does not mean that he could not learn certain things on the job. One dayan adds that one cannot claim mekach ta’ut based on a blemish that can be fixed without the need to totally discard that which was previously done (see Shulchan Aruch, Choshen Mishpat 232:5), such as the flaws pl was responsible for. Furthermore, even if we were to employ mekach ta’ut, there is still a requirement to pay for the great majority of work, which had value, so the question of mekach ta’ut is close to academic.
After calculations, beit din found that def owes pl 30,233 NIS.
Linkage of debt: Poskim are against linking debts to the CCI because it is not a true indicator of the value of money, and therefore this violates ribbit (usury). This is particularly so here where the delay did not cause pl to encounter more expensive building costs. Regarding linking to the consumer price index (CPI), some base permission to do so on the Yam Shel Shlomo (Bava Kama 9:13), who says that when someone who owed money, inexcusably pushed off the creditor and the currency of the loan changed to a more expensive one, he can be made to pay in the new currency. However, the Shach (CM 74:27) disagrees. In any case, nothing as dramatic as a currency change occurred here. On the other hand, Rav Auerbach (Minchat Shlomo I:27) says that when one does not pay a loan when he was supposed to (ribbit is classically when one returns more money later, based on agreement, not refusal to pay), he needs forgiveness, and increased payment as forgiveness is not ribbit. In this case, instead of linking the payment per se, beit din obligated def 6,000 NIS for taking years to submit to beit din.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
753 - Profits from Formerly Joint Swimming Pool – part III
754 - Disagreements over Renovations – part II
755 - Damages of Movers
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Beit Din Eretz Hemda - Gazit
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