We had an interesting case in beis din recently and we wanted to hear your opinion. Whenever it rained, rainwater would seep into the downstairs neighbor’s apartment from the upstairs neighbor‘s porch. As you wrote (Parashas Mishpatim), the upstairs neighbor was obligated to fix his porch. However, the upstairs neighbor did not want to spend money to repair his porch so he denied the downstairs neighbor access to his porch until he signed an agreement whereby the upstairs neighbor would not have to pay more than three thousand dollars for the repair. (The upstairs neighbor agreed that this is what transpired.) The downstairs neighbor then brought two companies to give estimates. One said he would charge twelve thousand dollars for the repair and the other said he would charge fifteen thousand dollars. The downstairs owner chose the more expensive company because he felt more confident that they would do the job properly. In order to check out prices, beis din brought its own expert who said he would have charged only ten thousand dollars for the job. Our question is how much to charge the upstairs neighbor? Is the limit agreement binding and if not, how much do we charge the upstairs neighbor: the fifteen thousand dollars that was actually spent by the downstairs neighbor, or the ten thousand dollars that the beis din expert said it should have cost, or the twelve thousand dollars that the downstairs neighbor knew he could have the leak repaired for?
Since the answer to the question about the validity of the limitation agreement depends on the answer to the question of how much the upstairs neighbor has to pay, we must begin with the latter question.
Before we can decide how much the upstairs neighbor needs to pay we must determine on what grounds he must pay and what he is paying for. In order to decide these issues we must understand the work relationship that was created between these two neighbors.
The downstairs neighbor paid for a company to perform work that the upstairs neighbor was obligated to perform. When one performs work on behalf of someone without having been hired for the job, the status of the work performer is a yoreid. He is a worker who did not intend to work for free but wasn’t hired by the beneficiary of his work. The fact that the downstairs neighbor paid for a company to do the work is basically the same as if the downstairs neighbor did the work himself. Thus, we have determined that the status of the downstairs neighbor is that he is a yoreid.
You will recall that we wrote in a previous article (Parshas Vayero) about a tenant who paid for a snake trapper to catch his neighbor’s escaped snake and we wrote that the owner of the snake had to reimburse the one who hired the snake trapper because he paid for someone to fulfill the snake owner’s obligation. In that case too, the neighbor who hired the snake trapper was a yoreid and the grounds for making the owner of the snake pay is that one must pay a yoreid.
In order to decide how much to pay we have to determine what type of yoreid the downstairs neighbor is. The Gemara divides yoreid into two classes. There are people who are a yoreid bershus. They received permission to perform the task that they performed. While the worker wasn’t hired, nevertheless he acted with permission. For example, if a landlord permits his tenant to improve the property he is renting, the renter is a yoreid bershus. However, if a squatter improves the property on which he is squatting he is a yoreid shelo bershus because the property owner granted him no permission: not to squat on his land nor to improve the land.
In the classic situation of a yoreid bershus the worker was given permission by the owner of the property that he improved. However, even if he did not receive permission from the owner but received permission from beis din – or would have received permission from beis din – he is also classified a yoreid bershus. For example, the Gemoro (BM 39A) explicitly rules that if a person tended the land of his captive relative he has the status of a yoreid bershus since beis din would have given him permission to look after his captive relative’s property.
We should note that the fact that the downstairs neighbor was only interested in improving the upstairs property in order to avoid being damaged does not detract from his status as a yoreid as we see in the case of the captive since in that case too the only reason the relative was interested in improving the property was in order to eventually inherit it. The one who hired the snake trapper also was a yoreid bershus.
Having established that the status of the downstairs neighbor is that of a yoreid bershus we can determine how much he deserves to be paid.
Whenever someone is a yoreid bershus he is entitled to have his expenses reimbursed in full. Expenses include the cost of materials as well as labor costs. If the yoreid does the work himself, he only is paid as much as the cheapest common price which in this case would probably be ten thousand dollars. However, when one hires someone else to do the work it is clear from the Rambam (Geneivo 10, 10) and the Shulchan Aruch (CM 375, 8) that he is entitled to be reimbursed for whatever he paid as long as he acted reasonably.
In fact, the Pa’amonei Zahav (CM 375) proves this from a ruling of the Ramo (182, 3) that if someone asked an agent to perform a job on his behalf he must reimburse the agent for all reasonable expenses. The rationale is that we presume that when one asks another to perform a task that involves an outlay of money, he intends to pay all reasonable expenses. However, if the agent acted in an unusual manner we assume that the one who hired the agent never accepted liability for unusual expenses.
This is also the ruling of the Sha’ar Mishpot (14, 4) in case one caused another an expenditure. He rules that the one who caused the expense must pay all reasonable expenses. Even if there are people who charge less, one does not have to make a survey of all available companies before hiring since that is not usual behavior. For example, if a plaintiff refuses to have his case heard in beis din, causing the claimant to have to go to secular court, the plaintiff must reimburse the claimant for the additional expense of having his case heard in court. However, the plaintiff does not have to reimburse the claimant for extravagant expenses.
Similarly, the Rashba (cited by Beis Yosef 333) ruled that if a worker who was obligated to work quit, the employer may hire a replacement at the worker’s expense provided the worker charges a reasonable price. The employer does not have to ascertain that he is hiring the cheapest worker that can be hired.
Since the price of twelve thousand dollars seems to be reasonable, the downstairs neighbor is certainly entitled to be reimbursed this amount. However, since normally when a person receives two quotes from reliable companies he hires the cheaper company, we cannot obligate the upstairs neighbor to reimburse the downstairs neighbor for the full fifteen thousand dollars that he actually paid.
Having determined that the downstairs neighbor deserves to be reimbursed twelve thousand dollars, we can consider the validity of his agreement with the upstairs neighbor that he will only make him pay three thousand dollars.
When a person forces someone to sell him something the sale is valid (See BB 48) because we assume that the seller honestly agrees to sell because in the end of the day he receives the value of what he sold. However, if one is forced to give a present, the recipient must return the present because the giver only gave it under duress. Similarly, the Shulchan Aruch (CM 205, 4) rules that if one is forced to sell at a cheap price the sale is invalid because a sale at a cheap price is classified as a present.
Since we saw earlier that the downstairs neighbor is entitled to be paid twelve thousand dollars, he was coerced to forego payment of nine thousand dollars. Since it was only done because of your neighbor’s threat to prevent him from repairing the leak, it is like being forced to give a present. Therefore, his waiver is invalid and he is still entitled to twelve thousand dollars.
In conclusion: The upstairs neighbor must reimburse the downstairs neighbor the sum of twelve thousand dollars.