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Ruling: Last time we saw that while beit din’s expert said that the additional work fits the description that deserves 18,000 NIS, there is a machloket whether the witness’ claim that pl agreed to receive hourly pay causes pl to be obligated in an oath.
Beit din can employ a compromise in lieu of a required oath (Shulchan Aruch, Choshen Mishpat 12:2), and this is regularly done in our times, when we avoid oaths. In this case, one of the dayanim believes that pl should receive the entire 18,000 NIS because there are reasons to not have the witness’ testimony require an oath. The dayan argued that wtns did not actually hear pl relinquish his right to full payment. Rather, def exhorted pl to finish the work in no more than 5-10 hours, and pl agreed. This can mean that pl should finish the job quickly, to not slow down the project. Since beit din’s expert said that the work should require around 20 hours, it also does not make sense that pl would agree to give up on the flat fee and agree to hourly work. Also, since it is clear that def thought that pl had no claim to 18,000 NIS, it is not logical that he would ask pl to agree to less; so, mechila is unlikely. Although def sent pl WhatsApp messages about sending in the hours he worked and pl did not respond, pl has explained that since this was said after the work was done, and he thought correctly that he deserved the full fee, he did not feel a need to respond. Therefore, according to this dayan, def should pay in full.
The majority of dayanim rule that def should pay only two thirds of the claim for the following reasons. While the expert says that the type of work fits the description of the flat fee, the standard practice is, when the need for extra work arises, the sides negotiate and do not follow the contract’s flat fee. Since according to the amount of work needed, the flat fee would be unreasonably high, for pl not to clarify his intentions would be improper. If def’s intention about 5-10 hours relates to when he would finish, he would have mentioned days to finish. Rather, according to wtns, he expressed his understanding that he would pay by the hour, and if pl did not correct him, he, in effect, agreed. Therefore, the oath is in place, and the payment is only 12,000 NIS in lieu of it.
Next time, we will conclude with the sides’ dispute over the other project pl did for def.
P'ninat Mishpat (829)
Beit Din Eretz Hemda - Gazit
793 - P'ninat Mishpat:Amounts and Conditions of Payment to an Architect – part I
794 - P'ninat Mishpat: Amounts and Conditions of Payment to an Architect – part II
795 - P'ninat Mishpat: Amounts and Conditions of Payment to an Architect – part III
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Beit Din Eretz Hemda - Gazit
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