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May 28, 2015 / 10 Sivan, 5775
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Fence Value

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Mr. Sam Braun stood at the back door of his house with another man dressed in rugged jeans and a baseball cap, surveying the back yard. The man had a tape measure in his hands, and took measurements along the length and width of the yard. The two then walked to the side of the house and again measured and talked, gesticulating with their hands.

In the adjacent yard sat Hillel Farber, reclining in a lounge chair and reading a book. He kept peeking up to see what his neighbor was doing. Finally his interest piqued him. “What’s going on, Sam?” Hillel called out. “Whom are you talking to?”

“We’re doing some renovations,” answered Sam Braun. “This is the contractor, Tom Green.”

“What are you building?” asked Hillel.

“I’m adding a sundeck in the back of the house and a wooden structure for the kids to play in,” Sam answered. “We’re also putting a wooden floor in the dining room. I’m considering building a wooden fence to separate our two properties. What do you think of that?”

“That’s a good idea,” said Hillel. “It would also give us more privacy.”

“Are you willing to split the cost of the fence?” Sam asked.

“Could be,” replied Hillel. “How much will it run?”

Sam turned to Tom. “What do you expect the fence to run?”

“In the range of $2-3,000,” said Tom. “It depends on the exact measurements and the type of wood used.”

“That sounds fair enough,” said Hillel. “I’m willing to chip in my half.”

“Great,” said Sam. “We’ll settle when the work is complete.”

Sam decided, in the end, to run the wooden fence around most of his property. When Tom finished the work a month later, Sam said to him: “You remember that our neighbor, Hillel, said he’d split the fence between the properties? How much would you reckon that part of the job was?”

“It’s worth $3,000,” Tom answered. “Let him pay $1,500.”

Sam told Hillel that the fence cost him $3,000.

“Can I see the invoice?” asked Hillel.

“The invoice is for the entire job,” said Sam. “The part of the fence that we share is not listed separately. The figure of $3,000 is what Tom told me it’s worth.”

“If you don’t mind,” said Hillel, “I’d like to double-check with another contractor about that valuation.”

“I don’t mind your checking,” replied Sam, “but I think we should follow Tom’s appraisal anyway, since he did the work.”

Hillel spoke with another contractor, who said: “That kind of fence generally runs about $40 per foot.”

Hillel calculated the shared part of the fence, which ran 60 feet, and came to a total of $2,400. “Based on what I spoke with the other contractor,” he told Sam, “the fence is worth less than $3,000.”

“Who’s to say that his appraisal is more accurate than Tom’s?” Sam replied. “Anyway, as I said before, Tom did the work.”

“But he didn’t give a clear price beforehand for the shared part of the fence,” argued Hillel. “At this point, his appraisal is no different from anybody else’s. Why should I pay more than it may be worth?”

Sam scratched his head. “Maybe that’s what he charges, but Tom charges more?” he responded. “I suggest we take this up with Rabbi Dayan.”

“Great idea!” exclaimed Hillel. “I’ve been waiting for chance to ask him a business halacha question!”

Sam and Hillel met with Rabbi Dayan, who said: “In general, when a person agrees to a job and no price is stipulated, if there is a fixed going rate he must pay that amount.” (C.M. 331:2)

“What if there is a price range?” asked Hillel.

“Then he only has to pay the lower end of the range,” answered Rabbi Dayan, “in accordance with the principle hamotzi mei’chaveiro alav ha’reaya – the burden of the proof is on the plaintiff. This is true even if most people charge a higher price.” (Ketzos 331:3)

“But I stipulated a price with the contractor,” objected Sam. “Hillel agreed to reimburse half the price that Tom charged for the fence.”

“That is correct,” said Rabbi Dayan. “Had Tom assigned a specific price for the shared fence, Hillel would have to pay whatever the cost was, even if it could have been a cheaper fence or a cheaper contractor. However, there was no explicit price for the shared fence.”

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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