P'ninat Mishpat:Amounts and Conditions of Payment to an Architect – part I | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The plaintiff (=pl), an architect, did work on two projects for the defendant (=def). Regarding each, they dispute the amount due and/or the payment’s timing. In the first project, def paid pl 18,000 NIS, per the contract. Two clauses dealt with possible future work. For one, pay is an additional 18,000 NIS; for the other, pl gets 250 NIS per hour. Toward the end of the first project, def asked pl to present updated plans, which he did. Pl says he is to receive 18,000 NIS; def says that he told pl he would receive the hourly rate and brought a witness to that effect.

Ruling: The first topic to decide is whether pl’s witness, a building inspector, is a valid witness, considering that he had worked for pl at the time. Although he no longer works for pl, def is concerned he might plan to work for him in the future. The Ri Migash (Shut 162) rules that a worker is considered like a friend or an enemy of the employer, which does not disqualify him from testifying (he may not be a dayan). However, the Radbaz (Shut I:312) warns that the dayan should investigate whether the worker might benefit from testifying for his employer’s gain (see Rambam, Eidut 16:4). In this case, the witness no longer works for pl and denies having positive or negative feelings about him. Beit din was impressed by his testimony’s candor and therefore accepted his testimony.

On the other hand, he is only one witness, who says that def stated he expected to pay by the hour and that pl agreed. The rule is that one witness is impactful only in regard to court-administered oaths. When a witness testifies that a debt that is found in a contract was already paid, the one who wants to extract money needs to swear, based on a Rabbinical law, that he has not received that payment (Ketubot 87a). While the witness claimed that the extra work fit the description of that which should be paid on an hourly basis per the contract, beit din’s expert disagreed, saying that it was equivalent to a new set of plans, for which the contract calls for 18,000 NIS (although the amount of work was less than for the first round).

Thus, the claim the witness supports is that pl waived his rights to full payment (mechila). Not every claim of a witness requires an oath to counter, as the Rambam says (see Shulchan Aruch, Choshen Mishpat 84:5) that if he testifies that a debt was paid early, the holder of the debt contract receives payment without an oath. The Ktzot Hachoshen (84:4) explains that since the oath for one who is collecting with a contract is an exceptional rabbinic rule, it was not instituted regarding all claims. The claim of mechila is weaker than that of payment, and there is a machloket (in a similar case) whether it can trigger an oath (see two opinions in Shulchan Aruch, CM 82:10), and the stronger opinion is that it does not. The Nachal Yitzchak applies it to a case like ours, although the Sha’ar Mishpat (84:7) disagrees. Our case of mechila is also better than usual because it is mechila which if done, occurred before the obligation began.

We will present application of the above halachic basis in the next installment.