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May 23, 2015 / 5 Sivan, 5775
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Damaged Value


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The beis medrash of Yeshiva Toras Mishpat was packed. The sound of Torah resonated through the beis medrash as the students and avreichim argued over the pages of Gemara and Shulchan Aruch.

Most of the people learning sat at tables, which were often piled high with books. Every once in a while someone would bang on the table emphatically in the course of an argument with his chevrusa (study partner).

Between the tables, a number of shtenders (book stands) dotted the beis medrash. One large shtender belonged to Avrumi Klein, who would rock back and forth on it while involved in enthusiastic debate. The shtender, which was beautiful when new, was already a number of years old and had seen better days. It was still fully functional, but some of the pieces of wood were developing cracks and there were gouge marks on it from numerous falls. The colorful painting that adorned it on top was partially faded.

Mendy Blum sat at his table engrossed in a difficult sugya (topic) about which he was preparing a shiur. He jotted down a few sources and then went over to the library room to pull a few more books off the shelf. He carried the load of sefarim back to his desk.

As Mendy hurried back to his desk, he bumped with force into Avrumi’s shtender, hurling it into the sharp metal legs of the table behind. The shtender hit the legs at an angle and broke.

Mendy righted the shtender and looked at the broken pieces. The wood had splintered badly in a number of places and didn’t look like it could be reasonably fixed.

“What happened?” asked Avrumi.

“I was carrying too many books and wasn’t watching where I was going,” said Mendy. “Definitely my fault. I’ll pay you for it.”

“The question is, how much?” said Avrumi. “A new shtender like this costs $150, but it was already five years old. It doesn’t seem fair that you should pay the full amount.”

“On the other hand, you were using it fine,” said Mendy. “You could have used it many more years and wouldn’t have had to pay anything. Now you have to go buy a new one.”

“It’s still  not right to accept full price,” said Avrumi. “It’s not exactly in perfect condition. There should be some guidelines in halacha how to evaluate the damage.”

“Rabbi Dayan is sitting at his table,” said Mendy. “We can ask him; he should know.”

Mendy and Avrumi took the broken shtender over to Rabbi Dayan.

Rabbi Dayan saw them coming with the broken pieces. “Looks like there’s a case of damage here,” said Rabbi Dayan. “What happened?”

“I knocked it over,” said Mendy.” It’s clearly my fault, but the question is: How much to pay?”

“A person who damages an item is responsible to repair it, if typically repaired,” said Rabbi Dayan, “or to pay the value of the damage, if not typically repaired.” (C.M. 387:1; Shach 387:1)

“How do we evaluate the value of the damage?” asked Mendy.

“If the item was new and the damage was a total loss, it is easy to ascertain the value,” said Rabbi Dayan. “However, it is difficult to ascertain the value of a used item. Classically, the value was the item’s worth on the used-item market. The Nesivos [148:1] even suggests that a person who damages something that cannot be sold is exempt, even if of monetary worth to the owner. Others dispute this.” (Kehilos Ya’akov, B.K. #39)]

“But second-hand items are usually sold nowadays at far less than their actual value,” argued Avrumi. “People are used to buying from stores, so that even brand new, unopened items sold on eBay run at only 80 percent of their cost, and slightly used items lose significant value.”

“That is true,” said Rabbi Dayan. “Therefore, most batei din rule nowadays that we should estimate the item’s true monetary worth to its owner.”

“How can this be evaluated?” asked Mendy.

“One way is to amortize the item’s cost over time,” said Rabbi Dayan. “Thus, if the expected lifetime of an item is ten years and five years passed, it would be evaluated at roughly half its cost. [Mishpetai HaTorah I:24]. Of course, there are additional factors to consider, such as the condition of the item and the depreciation curve of this particular item.”

“What if the damaged item is not a total loss?” asked Mendy.

“Halachically, the damaged item remains property of its owner and the one who damaged is responsible only to pay the differential,” said Rabbi Dayan. “He is not required take the damaged item and replace it for the owner with a new one. This applies whether the item is still usable for its initial purpose or valuable only for its parts.”  (403:1)

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.

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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