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Ruling: [After seeing that pl can remove def, we now deal with monetary issues. Part of the complication is that after initially taking part in the process, def later boycotted the hearings.]
Although the rental contract is for 20,000 NIS a month, in pre-hearing letters, def’s lawyer essentially admitted that during the year, def expanded their usage of prp and accepted a 5,000 NIS raise in rent. Based on the records pl presented, this raises rental debt to 133,600 NIS. If def reengages in the process and brings claims and/or documentation to dispute the numbers, beit din will reconsider.
It is difficult to determine the exact debt for electricity because the meters do not reflect price differences according to time of day and season. The contract allows pl to charge def according to an estimate. The system pl proposed is reasonable in beit din’s eyes and results in a charge of 12,780 NIS. The same is true of the charge for water (12,876 NIS). Beit din reduced pl’s charge for def’s participation in municipal tax by a few hundred NIS (to 38,322 NIS) because it did not agree with pl charging for full months in the first and last month in which def was not present for a few days in the beginning and end, respectively.
The contract states that def will pay an agreed penalty of 1,000 NIS per day for as long as def refuses to leave prp, in addition to regular charges for usage. One could claim that def is exempt because this is an asmachta (an exaggerated obligation that people accept without believing it will come to fruition). The fact that the contract states that obligations should not be considered asmachta does not remove the ability to claim asmachta. However, the "admission" in the contract that a retroactive kinyan was made on the terms does overcome asmachta (see Shulchan Aruch, Choshen Mishpat 207:15). Also, the fact that the law and minhag are that arbitrators are expected to lower the penalty payment to reasonable levels removes the element of exaggeration at the base of asmachta. Therefore, def is obligated to pay 11,000 NIS up to the date of 19.7.21 and an additional 1,000 NIS a day until they vacate prp.
P'ninat Mishpat (832)
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Beit Din Eretz Hemda - Gazit
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