Avi had lost his mobile phone and borrowed a spare one from Yitzi.
“Can I see the phone?” Yaakov asked Avi.
“Sure,” replied Avi as he gave it to Yaakov.
But while Yaakov was looking at the phone, it slipped out of his hands and the screen cracked.
“I’m sorry,” said Yaakov. “I’ll cover the repair. Here’s $40 meanwhile; let me know what it comes to.”
“I’m really sorry,” Avi apologized to Yitzi. “I let someone look at the phone and the screen cracked. How much does it cost to repair?”
“It costs $50, but don’t worry about it,” said Yitzi. ” I have a repair kit that cost me $15 and can do it myself. We’ll settle for $15.”
Later, Avi met Yaakov. “How much does the repair cost?” Yaakov asked.
“It usually costs $50, but Yitzi settled for $15,” answered Avi. “He was able to fix it himself.”
“If so, you should give me back $25,” said Yaakov. “You lost only $15.”
“So what?” replied Avi. “The damage was $50; you should pay the full amount.”
“The phone is not even yours,” said Yaakov.
“But I borrowed the phone, so your liability is to me,” responded Avi.” Who cares what went on between me and Yitzi?”
“I do,” argued Yaakov. “I shouldn’t pay for a loss that you never incurred.”
The two brought the case before Rabbi Dayan. “Yaakov broke a phone I borrowed,” said Avi. “The repair costs $50, but the owner settled with me for $15. How much does Yaakov owe?”
“This question is the subject of a dispute,” replied Rabbi Dayan. “Shiltei Gibborim [Rif B.B. 6a] writes that if a person stole from a borrower and the borrower settled with the owner for a small sum, the thief needs to pay the borrower only that amount.”
“What is his source?” asked Yaakov.
“He bases his ruling on a case in Bava Kama [78b], ” answered Rabbi Dayan. “Someone pledged to bring a korban olah, a burnt offering, and afterward designated an ox for his sacrifice. If a thief stole the ox, he has to pay only the cost of a lamb, since the person can still fulfill his pledge with a lamb. This indicates the thief must pay only the actual loss incurred. This law would presumably apply also to damage.”
“However,” added Rabbi Dayan, Sha’ar Mishpat [C.M. 72:12] rejects this ruling.”
“Why is that?” asked Avi.
“In that case, once the ox was designated as a korban olah, the person no longer has any monetary rights in it; it belongs to hekdesh,” explained Rabbi Dayan. “The liability to the person is because he now has to designate another animal, davar hagorem l’mamon. Thus, since he can designate a lamb, this is the extent of his loss. However, a borrower has monetary rights in the item. Therefore, Sha’ar Mishpat maintains that the thief is liable toward the borrower for the full value of the item, even though he did not suffer the full loss.”
“Does Sha’ar Mishpat have proof for that position?” asked Yaakov.
“He bases it on a Mishnah [B.M. 35b],” replied Rabbi Dayan. “A person rented an animal and subsequently lent it to another, and the animal died – oness. The renter is exempt from oness, whereas the borrower is liable. Tana kama maintains that if the renter swears the animal died naturally and exempts himself from payment, the borrower has to pay him the value of the animal, though the renter suffered no monetary loss.” (See, however, C.M. 307:5; Pischei Choshen, Pikadon 8:24)
“How do we rule?” asked Avi. “Yaakov gave me $40, meanwhile.”
“On account of the dispute, hamotzi meichaveiro alav ha’reaya,” concluded Rabbi Dayan. “Yaakov is not required to pay the remaining $10, but you do not have to return the extra $25 he already paid you.”