(based on ruling 83063 of the Eretz Hemdah-Gazit Rabbinical Courts)
Case: The defendant (=def) hired the plaintiff (=pl) to do renovations for 400,000 NIS. Pl completed most of the project, and def paid pl 95% of the fee. Due to disagreements between the sides, pl did not complete the job. Pl sued for the unpaid 23,400 NIS and for additional payment due to claimed extra work. Def countersued for flaws in the work. In an interim ruling, beit din required def to allow pl to fix flaws. Pl agreed to do so, whereas def was unwilling for pl to continue working, despite beit din’s warning of financial repercussions. Def claims to be justified in losing confidence in pl, who all but admitted that he is incapable of completing the job.
Ruling: There is little question as to what pl did and did not do, and the main question is whether the sides were allowed to abrogate their parts of the deal before its completion.
The gemara (Bava Metzia 75b) states that if a kablan (someone paid by the job) starts but decides not to complete a job, he gets paid no more than the amount he was promised for the job minus the amount it will cost the employer to get someone else to finish the job. The Shulchan Aruch (Choshen Mishpat 333:3-4) also rules this way. The Rama (ibid.) adds that if the employer backed out, then the worker receives proportional partial pay for the work he did, even if finishing up the job will exceed the envisioned final price. Regarding the work he did not end up doing, the gemara (ibid. 76b) states that the worker gets paid for the work he was promised to be paid for, but we reduce the amount a person normally agrees to in return for the freedom of not having to work (this reduced fee is called po’el batel).
The Perisha (333:2) says that if the worker is able to replace that work with another job, he does not get paid for that which he did not yet do. The Netivot Hamishpat (333:7) says that we do not consider whether he could have gotten another job, because for a kablan we view it that one job does not preclude another, and therefore he always receives partial payment for what he was not allowed to do. In this case, because beit din warned def that he should allow pl to fix what he can and def did not listen, pl should get paid a significant percentage of what he did not do.
The Taz (ad loc.) rules that the reduction of a po’el batel is by half of the amount due him on the undone work. While some Rishonim are of that opinion, the Rashba and others say to reduce the amount due by less. Many poskim say that the specifics of the case, including how hard the work is, can play a role in the determination. In this case, we estimate that two thirds of the fee is correct. In a case of building, one must consider that much of the fee goes toward building supplies and workers (for whom the contractor pays). It is also not clear here that only 5% of the work (= the amount that was not paid) remains, as the end of a job is full of surprises and taxing finishes, while on the other hand, it usually does not require extensive materials.
We will continue next week.
