Question:
Greetings to the esteemed Rabbis, shlit"a:
We have a question regarding matters of Choshen Mishpat. We understand that posing a question via the internet cannot be equated with a formal Din Torah proceeding, wherein the judges have the opportunity to question and thoroughly examine all the parties involved. Therefore, any response provided does not constitute a ruling from a Beit Din. Nevertheless, we are eager to know what the halachic ruling might be in a case such as the one described below. Thank you very much!
Reuven and Shimon own two apartments on the top floor of a building. About four years ago, they hired a company to waterproof the building’s roof. All the apartment owners in the building to contributed to the cost (as mandated by law). The sealing work was provided with a five-year warranty.
A few months later, Reuven sold his apartment to Levi. In the sale contract, Reuven took responsibility for all leaks into and from the apartment he sold for the next five years.
After taking possession of the apartment, Levi hired a contractor (a Jew) to enclose one of the balconies. The construction included electrical work.
The contractor hired a subcontractor (a non-Jew) to perform the work. As part of his tasks, the Arab subcontractor drilled a hole in the roof above an electrical cabinet, thereby voiding the warranty provided by the sealing company to Reuven and Shimon. (Levi became aware of the drilling and the warranty voiding only after the fact.)
Shimon rented out his apartment to Yehuda. Yehuda now claims there are leaks from the roof and is demanding that Shimon repair them.
Question: Who is obligated to pay for the repairs?
Shimon argues that Levi must pay because the warranty was voided due to Levi’s actions. Without Levi’s construction work, the repairs could have been done under warranty at no cost.
Levi argues that he is not liable because he did not personally damage the roof or void the warranty through a direct act but only indirectly caused the warranty to be voided.
Shimon contends that it is undisputed that Levi hired a contractor whose subcontractor caused damage to the shared property. Levi, however, claims that since he did not act directly, he is exempt from payment. Shimon responds that, according to Levi’s reasoning, one could evade responsibility for any damage if others are hired to perform the work. (See Responsa Shaarei Shlomo, Siman 43, Section 5.)
Levi counters: (a) The act performed by the subcontractor was not inherently damaging but was a reasonable construction task on the roof. (b) The act itself did not cause the leak but only voided the warranty. Therefore, even if Levi had personally performed the act, he would still be exempt from payment.
We await your esteemed guidance on this matter.
Answer:
Hello,
As you so correctly write, such complicated questions, where there are two opposing opinions, has to be discussed in person with dayanim. However, in a theoretical sense, it is the contractor that did the damage, and it isn’t considered gramma, because it is like a person who burned someone else’s contract, (the warranty) which is considered garmi. Again, this is only a theoretical answer.
Sources:
שולחן ערוך חושן משפט סימן שפו סעיף ב' "וכן השורף שטר חוב של חבירו, חייב לשלם".
