by Rabbi Baruch Rubanowitz

Q:

About a year ago, someone who works at city hall said he could help us get a permit to do some work in our new house. Shortly thereafter, our contractor’s assistant called us and said that he could get us the permit, and that if we went through the other guy rather than through him, he would block it. He also told us he would gather much of the necessary architectural papers and plans since that would be very helpful, we agreed to do it through him.

A few months later he told us he was ready to start work on actually getting the permit and took from us half the payment that we had agreed upon. Now, many months later, he phoned us to tell us that in fact he cannot obtain the permit and we will have to go back to the first man.

Two questions:

1.Since he took half the money, is the contractor’s assistant liable for any damages that we may incur either in getting the permit (e.g., if man #1 now wants to charge us more since by now we have signed on the apartment and are “stuck,” whereas when we spoke to him last year we had not yet finalized the purchase) or if we cannot get the permit at all? For instance, is he responsible for paying us the difference between the cost of a house with the addition and the same house without the addition?

2.If so, since we have a short-term cash crunch, can we take back most of the money we gave him so many months ago or would this nullify his responsibility to us in any way?

Thank you for you time and energy.

Answer:

Generally, issues regarding money cannot be fully presented in a letter (since I cannot ask questions of each party). Often a question regarding money and legal rights presented by one side will yield an inaccurate response, albeit by no fault of the questioner.

Nonetheless, I will try to give you some direction on this issue, as I understand you have a meeting shortly and wish to proceed with as much information as possible.

I wish to emphasize that this is not to be regarded as a psak on this case, but rather a learning session on some points that may be relevant to your case.

When a person offers to act as an agent to secure a deal, he cannot receive the agreed-upon compensation for his work unless the deal is actually closed. If the endeavor fails, he does not receive the agreed-upon fee. A good example of this would be a shadchan. A contractor also falls into this category.

Mordechai (Baba Kama 173) discusses a case in which Reuven asked Shimon to ask Levi, who lives in another city, to marry Reuven’s sister. Levi came but the shidduch did not go through. Shimon claimed his fee on the grounds that he brought Levi to Reuven’s city. The psak was that Shimon couldn’t claim his money unless it was agreed that he would be paid to bring Levi to the city even if the shidduch did not go through.

The Beis Yosef (185 mechudash 2) understands a Teshuva of the Rosh as saying that payment may be required even when a deal doesn’t go through. See Mishpat Shalom 185, which suggests a distinction between cases in which it is common for people to take risks and people may offer an agent money to do work even though they know the outcome is questionable, and cases where people don’t pay unless the job is completed. He also posits (based upon the Machane Efraim) that it could depend who suggested the job. If the contractor proposed that he do a job and was unsuccessful, then he would not receive anything. But if the contractor was asked to do the job and did what he was asked, then he should be paid, even though the deal didn’t go through. These possible factors may play a role in your situation. These factors are not universally agreed upon.

I do not see how the extortionist you were dealing with would be liable in a court of Torah law for any causative damages you may suffer due to his inability to get you the proper permit. If the new agent charges more money for the service, the first agent is not financially responsible. Nor is it his responsibility if you do not get the permit at all and your house is less valuable.

if you can recoup the money that you gave him, i recommend taking whatever you can get. you might be entitled to all of it, but it would be a battle against a muchzak.

B’hatzlacha!