Renovation Runaround

Mr. and Mrs. Landman had dreamed about renovating for years. Finally, plans were drawn, tiles and cabinets selected, and Mr. Fixler, a well-regarded contractor, was hired, with a clear timeline stated in the contract. “It will take three months,” he assured them confidently, tapping the blueprint. “You’ll be back to normal before you know it!”

Two months passed without significant progress. Deliveries were delayed. A subcontractor failed to show. Mr. Fixler had other commitments. The kitchen remained gutted. Wiring dangled from the ceilings. The children tiptoed around stacks of lumber. Dust crept into every closet.

“When are you going to finish?!” Mr. Landman asked Mr. Fixler.

“It’s taking a little longer than expected,” Mr. Fixler said, wiping plaster from his hands. “But don’t worry!”

The noise and debris became unbearable, though. The Landmans packed suitcases and moved in with relatives, but it was cramped and uncomfortable. They decided to take a short-term rental. “This delay is costing us money, comfort, and peace of mind!” Mrs. Landman exclaimed.

When the renovation finally neared completion, Mr. Landman approached Mr. Fixler. “We relied on your schedule,” he said. “We had to move out. We even rented an apartment. This delay caused real inconvenience and expense. I believe we deserve compensation.”

Mr. Fixler shifted uneasily. “I’m sorry,” he replied. “There were supplier setbacks and unexpected issues. But I stayed on the job and completed it. Delays happen in renovations. Compensation wasn’t part of our agreement!”

“So, the burden falls entirely on us?” Mr. Landman asked.

“I fulfilled the contract,” Mr. Fixler answered. “Just not as quickly as we hoped.”

Unsure how to proceed, Mr. Landman turned to Rabbi Dayan.

“Am I entitled to compensation? Can I withhold partial payment from the contractor?”

“When a contractor falls significantly behind schedule, it can sometimes constitute a breach of contract and a basis to terminate his services and hire another contractor,” replied Rabbi Dayan.

“However, if you let the contractor finish the job, albeit behind schedule, whether you can demand compensation or withhold partial payment depends on the circumstances.

If the contract explicitly stipulates a penalty to the contractor, he is liable, provided that the penalty is reasonable. Otherwise, there is an issue of asmachta (insincere conditional commitment) (C.M. 328:2).

If the contract does not stipulate a penalty, we come to the question of gramah – incidental loss.

Some poskim maintain, based on the Ritva (B.M. 73b), that an employee, agent, or broker implicitly accepts liability also for gramah – or even missed clear potential gain (menias revach) – ensuing from his negligence in fulfilling his commitment (Nesivos 183:1, 306:6; Chasam Sofer C.M. #178).

However, the Rosh (B.M. 5:69) and other Rishonim seemingly disagree with the Ritva unless the worker explicitly accepted responsibility for the ensuing loss (see Chazon Ish B.K. 23:1-3; Pischei Choshen, Pikadon 12:15[38], Sechirus 7:23).

Furthermore, the Ritva and Nesivos primarily address when the worker acted with negligence. Moreover, perhaps they refer only to incidental loss resulting from a job intended to earn profit for the employer – e.g., renovation of a rental property when the delay caused loss of rent from a prospective tenant – but not incidental loss for external reasons, such as the family’s personal need to rent an alternate dwelling.

Certainly, if the delay did not cause any financial loss, just an inconvenience to the family while living in the house or with relatives for free, there is no gramah liability. It would clearly be a lack of trustworthiness, though, in not upholding the terms of the contract in a timely manner (C.M. 204:7).

If civil law mandates compensation in such circumstances, it is questionable whether dina d’malchusa applies between two Jews unless the law led to a common practice of contractors regarding delays; employer-employee issues are usually governed by common practice when not stipulated otherwise (Rema 369:11; C.M. 331:2).

In any case, the question of compensation should be brought before a beis din, not a civil court, and you should not withhold partial payment unilaterally.

“I cannot answer your question definitively,” concluded Rabbi Dayan. “A beis din would have to evaluate the specific circumstances of your case.”

Verdict: If the contract stipulates a penalty on the contractor for delay in finishing the job, he is liable for that. Otherwise, there is a dispute as to whether he is liable for incidental damage (gramah). The ruling depends on the specific circumstances of the case, which should be brought before a beis din.