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Fellow Weekly - Issue 102
WHAT'S THE LAW ™
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Encouraging intelligent and entertaining debate at your Shabbat table.
Fellow Weekly raises issues of business law and ethics through lively emails by featuring your real-life scenarios answered by our leading authorities and professionals.
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CLICK HERE FOR THIS ISSUE'S PDF
Project Fellow is deeply saddened and bitterly mourns the shocking passing of the righteous visionary and backbone of our educational materials
Mr. Frank Beda zt"l.
His fervent and unrelenting dream to see our children following the truth of Yaakov, paving the road for Moshiach, inspired his love, passion and magnanimous generosity towards our projects.
We beg Hashem that Mr. Beda zt"l see from heaven his dream come true, that his legacy not falter and that we be reunited soon in the Ir Hatzedek.
He will be sorely missed by his loving and devoted family, ProjectFellow and Klal Yisrael.
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CASE 202: Parking Rage!
What could be more frustrating than circling around an upper Manhattan block on Sunday night at midnight hunting for a parking space?
Two cars doing so!
Crawling northbound up Overlook Terrace between 186th and 187th St. for the fifteenth time, David's heart suddenly began to skip a beat as he observed a Black Lincoln Navigator in his rear view mirror pull out of a spot some one hundred and fifty feet behind him on the opposite side of the street. With no car in sight, David raced ahead to the intersection, made a quick U turn and glided towards his coveted destination. As he neared the space, William raced backward in his white Prius and began to back in to the spot. David suavely glided diagonally forward in to the spot - with his front right tire suspended over the sidewalk - blocking William's backward maneuvering.
A duel ensued
What is the law?
submitted by: Rabbi Dovid Bashevkin, NCSY
Please email us with your comments and answers at weekly@projectfellow.org.
Read next week's issue for the answer!
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Case # 201: Short Cut!
For years, Vivian Lehman longed to relocate from Kensington, NY to Jerusalem. As her life's dream slowly emerged into reality, Vivian signed on a first floor 100 meter apartment in a new development near Jaffa street, selling at $7,000 per square meter ($700,000 roughly 2,400,000 NIS). Though dealings with the contractor had been thorny and challenging, she continually kept her eyes on the prize. While 60% of the payments to the contractor had been already forwarded, by now, hidden charges came as no surprise.
Her interior decorator worked hard on maximizing the available space; designing state-of -the art furnishings for each room.
As construction of the apartment neared the end , Vivian visited Israel to examine her new home. Entering the living room (salon), she measured its dimensions and worked hard not to lose her temper. The living room and kitchen were each a meter and a half too small and there was no way to reconfigure the rooms.
Arguments between the contractor and Vivian escalated. The contractor offered her a $21,000 refund (cost of 3 meters) but Vivian was unappeased.
What can Vivian do?
If Vivian was to demand "out", what are her financial responsibilities towards her interior decorator?
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What's the Law?
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The Answer
We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below.
Assuming three meters off is deemed locally as a blemish, Vivian can void the sale. Vivian must be her interior decorator. The contractor must pay Vivian for the improvements received and thus the interior decorator can collect her wages from the contractor. |
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Detailed Explanation
Short Cut! implicates the following laws:
- Do not deal fraudulently with weights and measures [Choshen Mishpat 231: 1].
- While post facto we generally assume that a consumer pardons the proprietor and consents to having been overcharged up to 16% more than the fair market value[Choshen Mishpat 227: 7], this is NOT SO with regards to fraudulent measures [Choshen Mishpat 322: 1].
- Instead, when measurements and weights are even slightly erroneous, recourse is permitted ad infinitum. [Choshen Mishpat 232:1].
- When the error is rectifiable (i.e. adding/subtracting an additional unit) the transaction is valid but the plaintiff may demand reimbursement for the difference [Choshen Mishpat 232:1]. For example if the plaintiff received 99 units instead of 100, he/she may demand from the defendant one more unit ad infinitum.
- However, when the erroneous measurements create a different object, the article is viewed as blemished and the plaintiff may void the transaction (mekach taos). The plaintiff may return the article and demand a refund [Choshen Mishpat 232:1].
- Unless otherwise stipulated, transaction terms are subject to local accepted custom. Hence, the classification of blemishes worthy of recourse are subject to local custom [Choshen Mishpat 232:6]
- Unless otherwise stipulated, a solicited worker/service provider may demand wages commensurate with the accepted going rate even if the input price exceeds the output value [ Choshen Mishpat 375:4
- While one is generally required to pay for receiving benefit from an unsolicited service that he/she would otherwise have willingly paid a third party to perform, payment is only due when financial benefit is received. The lower rate a benefit receiver is required to pay in this instance is subject to a different configuration beyond the scope of this week's issue [Choshen Mishpat 375:1, Sma" 375: 1, 2].
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- If a customer improved the merchandise and then discovered a blemish worthy of voiding the initial transaction whereby returning the merchandise, aside from a refund; the customer may demand compensation from the merchant as though he/she was a solicited worker [Nesivos in Choshen Mishpat 235: 16, 205:4 ].
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- When A owes$ to B and B owes $ to C, A becomes obligated towards C. [Choshen Mishpat 86].
Application
Assuming Vivian's measurements were commensurate with local custom, and the contactor indeed shortchanged Vivian three meters, the contractor transgressed the sin of dealing fraudulently with weights and measures and Vivian would be entitled to recourse. As adding space was an impossibility, the apartment could be viewed as blemished (if in the eyes of the locals, three meters off is a blemish) and Vivian can nullify the transaction.
Nullifying the transaction, she would be entitled to a refund but would still be required to pay her interior decorator for the services provided.
Nevertheless, as Vivian would return an improved apartment to the contractor, the contractor would be required to compensate Vivian as though she was a solicited service provider. As the contractor becomes in debt to Vivian, he becomes equally in debt to Vivian's interior decorator.
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Note:
Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.
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