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Beit Midrash Series P'ninat Mishpat

The Termination of a Contractor’s Work Due to Mutual Complaints

---- ---Iyar 5768
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הלכה פסוקה
הרה"ג דוב ליאור
1 - אחריות לווה על פרעון ההלואה לאחר שנתן המחאה
2 - נזק תוך כדי בדיקת קנייה של אופנוע
3 - שטר שנכתב שלא כדין ובסופו היה קניין
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The plaintiff (=pl) is a contractor hired by the defendant (=def) to renovate her house under a detailed contract with a payment schedule. After def became dissatisfied with pl’s work and halted payment, pl, after a warning, stopped working, prompting def to hire another contractor to finish the job in a manner that raised the total project cost. Pl demands payment for the value of his work, irrespective of the second contractor’s charges. Def says that since pl’s poor work forced the situation, he should be treated as one who backed out.

Ruling : Estimating the compensation due a worker who did not complete his job depends on different factors. If a sachir (worker paid by time) initiates the stoppage, he is paid for what he did. If a kablan (paid by the job) does so, he is paid the lesser of: the percentage of the work done times the contract and the amount promised minus the amount necessary to finish the job (Shulchan Aruch, CM 333:4).
Regarding an employer who backed out, the Shulchan Aruch (ibid.:1) implies that the worker is paid as a poel batel (a discounted rate that takes consideration that people prefer having time off) even on what he did not do. Yet the Tur and Rama (ibid.:4) imply that he is paid only for what he did, just that we calculate its value in a manner that favors the kablan when the employer backs out. Acharonim ask why he is not paid as a poel batel for everything. The Perisha explains that a kablan receives such wages only when he is unable to find other work. The Netivot Hamishpat distinguishes as follows. A sachir doesn’t receive payment on what he did not do if he could have gotten another job. A kablan receives as a poel batel anyway because he is not tied down to specific times and he can thus theoretically hold two jobs simultaneously. Therefore, the possibility of a second job does not preclude his being paid as a poel batel for the first job he was hired for. The Tur spoke about a case where the employer found the worker alternative employment and he chose not to accept it. The Rama (CM 333:5) says that when work is stopped by no one’s fault, the kablan has the upper hand, meaning that the cost to the employer to complete the job done is not reduced and the kablan receives his proportionate due.
The dayanim had different views as to who was responsible for terminating pl’s work. One felt that since def refused to pay, pl was right to cease working. A second felt that since pl did not accept the need to compensate for deficiencies, neither side could be specifically blamed and the work should be evaluated normally. The third dayan saw the matter as a safek as to who was responsible. The ruling was that def should pay for the work done without considering what she paid the second contractor.
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