Too Late To Complain?
Chezky moved into his brand-new apartment at the end of summer. Towards the
end of the following winter, he noticed that the solar water-heater was leaking.
He notified the construction company, who referred him to the manufacturer.
After numerous phone calls, it became clear that the heater manufacturer had
no intention of honouring his guarantee. He therefore went back to the construction
company. They claimed it was not their responsibility, but solely that of the
manufacturer. Are they correct in their assumption?
A few days before Pesach, Chezky took a ladder to bring
down the Pesach dishes from the boydem (storage space below the ceiling).
This was his first visit to this area of the house, since the movers had placed
the dishes in their present position. He noticed that the builders had forgotten
to plaster over the electrical wires which ran along one side of the storage
space. He forgot about the problem till the next Pesach, when he again took
out the dishes. This time he did notify the construction company. To his surprise,
he was met with a complaint—against himself! The manager argued that had Chezky
immediately informed him of the problem, he could have easily carried out the
repair, since he still had workers and materials on site. Chezky's delay would
now involve him in unnecessary expense, which he was not prepared to bear. Is
his rejection of the claim valid?
When a construction company installs equipment manufactured by others, it
is acting as an intermediary between the manufacturer and the buyer. This would
include taps and other sanitary equipment, blinds and water heaters, etc. Accordingly,
if any defect is found in the equipment, the buyer should turn to the manufacturer
for rectification (especially as he usually gives a guarantee). But what happens
if the buyer is unable to obtain satisfaction from the manufacturer? Can the
construction company completely shrug off their responsibility? The Remo
(Choshen Mishpot 232:18)
rules that even where the intermediary was unaware of the defect, he does ultimately
remain responsible to the buyer. Even though he himself has been cheated,
he has no right to cheat his customer, the buyer. We can therefore conclude
that even though the customer's first line of approach is to contact the manufacturer,
if this is unsuccessful (e.g. the firm has gone out of business) the intermediary
remains responsible. Thus, the construction company has no right to reject Chezky's
claim for the faulty water heater. Let them see to the repair, and then fight
it out with the manufacturer.
the second question, we must first examine the wording of the sales contract.
It is common for the construction company to stipulate that any defects must
be reported within a year of taking up residence. Should Chezky have such a
clause in his contract, this would be seem to be valid grounds for rejecting
his claim, since it was made too late. Even if no such clause exists and there
is no time limit for correcting faults, the construction company still has reason
for complaint. When the buyer finds a defect, he must report it to the builders
as soon as possible. There are certain defects which tend to deteriorate if
left unattended. As mentioned in the question, the repair can also become more
expensive as a result of delay through difficulty in obtaining workers and materials.
There is no reason why the builder should have to bear the additional
costs incurred through the buyer's negligence. However, he also has no right
to completely shrug off responsibility on these grounds. He must either carry
out the repair and charge Chezky for the additional costs caused by the delay,
or give him the amount of money it would have cost him had Chezky reported the
defect on time (see Emek HaMishpot 1:39).