The Contributing Culpable and The Division of Responsibility
We brought a case where both parties breached the lease. However, there may be cases in which one party did not breach the contract, but it may cause the other party to breach the contract, or increase its damage.
Suppose there is a leak in the apartment, and according to the contract the landlord must fix it.
The tenant is negligent and does not inform the landlord about the leak, as a result of which the walls and floor of the room are completely destroyed.
The debate over who is responsible for the damage begins.
As a sign of protest, the landlord refuses to repair the leak.
The court can rule that on the one hand the landlord has breached the contract and must compensate the tenant in the amount of ten thousand shekels.
But on the other hand, the tenant is ‘guilty of contributing at a rate of forty percent for not warning the landlord about the leak.
And in the bottom line, the landlord will compensate the tenant for the amount of six thousand shekels.
It is very difficult to know the degree of responsibility that a court will impose on the victim for ‘guilty contributor’. See an extension on this matter in Aaronel Porat’s book, Defending Guilty Contributor in Contract Law.
This is because it has been ruled that it is advisable to avoid setting rigid tests for the distribution of damage between the parties, and instead a series of auxiliary tests should be used for the purpose of dividing the responsibility between the violator and the victim who is responsible for contributory fault.
In the division of the damage, the relationship between the severity of the violations of the parties, the amount of the damage caused, the causal contribution, and more must be taken into account.