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The Jewish Ethicist: Contractor Malpractice

The Jewish Ethicist: Contractor Malpractice

Do I have to pay a contractor for unnecessary work?

by

Q. When I brought a contractor to look at dampness in my basement, he told me he was pretty sure there was seepage and excavation would be needed to fix the problem. After thousands of dollars of work, the dampness was no better! In the end the problem turned out to be condensation, which required a very inexpensive solution. Do I have to pay the contractor for the unnecessary work?

A. The problem of bad advice is hardly a new one. The young advisors who suggested to Rechovam to rule with harsh discipline were probably well meaning, but the King would have been better off following the advice of the elders who advised him to be a servant of the people. (I Kings 12.)

Jewish law makes an interesting distinction regarding liability for bad advice. If the person giving advice is an amateur, yet gives an opinion knowing it will be relied on, then he is liable for any losses he causes. But an expert is exempt. The reason is that an amateur has no business giving advice; if he gives it, he'd better take full responsibility. But an expert is giving valuable professional advice; even if he happens to be wrong, we assume that he gave the best possible suggestion.

Another distinction: Even an expert is liable if he receives payment for his advice. One of the things that the client pays for is for the expert to stand behind his judgment.

How does this apply to your situation? One way of looking at it is that the contractor wears two hats. In his "advisor" hat he diagnosed the problem, giving a free estimate; an expert advisor who works free is not liable. Afterwards, in his "workman" hat he carried out your own directions. Thus he deserves full payment.

According to this understanding, the contractor would still be liable if he is not really sufficiently knowledgeable and experienced to make a proper diagnosis of basement dampness.

Another point of view is that the estimate is not really free; it's just included in the price of work. Then the contractor could be responsible for his misdiagnosis, unless he clearly explained that he was not completely sure and the work is on your responsibility.

Bottom line: if the contractor is really experienced and qualified, and you knew you were getting only his best efforts, then your case is just one of bad luck. If you suspect that a more experienced contractor would have saved you the headache and expense, then you are within your rights to negotiate some kind of compromise, or to demand arbitration.

SOURCES: Shulchan Aruch, Choshen Mishpat 306:6

Send your queries about ethics in the workplace to jewishethicist@aish.com

The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.

The Jewish Ethicist is a joint project of Aish.com and the Center for Business Ethics, Jerusalem College of Technology. To find out more about business ethics and Jewish values for the workplace, visit the JCT Center for Business Ethics website at www.besr.org.

JCT Center For Business Ethics

Copyright © JCT Center for Business Ethics.

Published: March 2, 2002


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Visitor Comments: 2

(2) Larry Schoen, March 5, 2002 12:00 AM

Basement waterproofing contractor not so innocent?

The response does not address the potential conflict of interest on the part of the contractor in his dual roles as consultant and workman. This can be as innocent as seeing problems as solvable by the tools you know best (in other words, the contractor may have been an excavation specialist, not a condensation specialist) and as dishonest as making work when business is slow or even worse, as a normal mode of operation.

What does "pretty sure there was seepage" mean? Was there physical evidence? Was a joint decision made by the contractor and customer? Did the customer receive some benefit in better drainage even though it did not fix the root problem?

How did the thousands of dollars of work compare to the labor? Can this be used to apportion the value of the contract between the bad advice and the work carried out?

Also, what is the contractor doing now -is he still selling bad advice? The marketplace is filled with apparently unscrupulous basement waterproofing contractors who sell their often unnecessary wares at exhorbitant prices and under high pressure to the unwitting homeowner customer. This has been written up in Washington Consumer's Checkbook and perhaps other locations. Doens't this make a difference?

Again, what also seems to be missing is communication and relationship. What does the contractor say now? Does he admit to his mistake and offer a compromise? Does he still feel his efforts were worthwhile? Or does he not return phone calls? Doesn't this play into the resolution?

(1) reuven avraham, March 5, 2002 12:00 AM

Wisdom

I enjoyed the dialog.
We must use the word of G-d to apply to our lives. The Bible "speaks"..There is wisdom in a multitude of counslers.
Did not Solomon ask of the Lord in 1Kings for wisdom? Not only did he recieve wisdom but, also provision that exceeded above any of his day.

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