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Case: The defendants (=def), yishuv residents of modest means, employed the plaintiff (=pl), a builder, to do renovations. Their contract portrayed pl as a building inspector, receiving a fee as a percentage of money spent, and def as their own contractor. In actuality, pl was the contractor, and the formulation was done to eliminate a contractor’s usual level of responsibility. At some point in the middle of the work, war broke out, so that pl went to reserve duty and his Arab workers were banned from the yishuv. Eventually, pl returned to work, but had great difficulty finding workers. He unilaterally changed the mode of pay for the work he did, to a paid worker (1,500 NIS a day). In a third stage, after def looked unsuccessfully for another contractor, def agreed to pl’s new mode of pay. This lasted until pl finished the job, with much of his own work and some of workers. [The sides argued on different elements of the pricing; it will be presented in installments.] 1. Def presented a long list of deficiencies in the building, and pl argues that he is exempt from responsibility. 2. Pl is charging a rental fee for the scaffolding, which def refused to pay because it was not mentioned as a charge. 3. Arab workers sued pl for withholding social benefits, and they came to a compromise arrangement. Pl wants def to cover the cost of the settlement. 4. Pl wants to charge def a fee as an inspector for work that other workers did in stage 3. Ruling: 1. Deficiencies – Beit din exempted pl from around 80% of the claimed deficiencies. Pl was obligated only for deficient work that he carried out himself, when incorrect materials were used, and when the work did not follow the plans that def gave pl. These are not included in the exemptions of the original contract. 2. Scaffolding – Erecting or renting scaffolding is something that contractors usually charge for. However, if it is fully clear that pl waived rights to ask for payment on them, then this is binding, even if it was not explicit (see Ktzot Hachoshen 12:1). In this case, the maximum that def were willing to pay was made very clear and the degree of specificity in line-item pricing was high. Therefore, since there was no line item for scaffolding, we can assume that pl agreed that it did not need to be paid (not charging is even stronger than waiving rights after they are created). 3. Settlement with Arab workers – Considering the limited amount of work the workers did on the project and that significant work must be done in order to be entitled to social benefits, the workers must have worked significantly on other projects. If pl did not fulfill his obligations toward them, that is not def’s responsibility. 4. Pay as an inspector – Pl, both actively and passively waived rights to this payment. Only late in the adjudication process, did pl claim that if he is not paid for X and Y, then he will demand pay for extra days as an inspector. One cannot add on a claim that he has already waived.
P'ninat Mishpat (834)
Beit Din Eretz Hemda - Gazit
867 - A Non-Contractor in Changing Times – part II
868 - A Non-Contractor in Changing Times – part I
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