Photo Credit: Jewish Press

Rabbi Dayan received the following e-mail from a relative of his:

I have a halacha question for you. Last week I was babysitting for a family friend for a few days while they went away. After dropping one of the kids off at camp, I pulled out of the driveway and backed into someone’s car that was parked in the street. There was a small dent I noticed toward the back of the car I hit, so I showed it to the owner…. She said it was probably fine and that I shouldn’t worry about it, but I gave her my number.

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She just called me saying that her son noticed that there’s a dent in the front door and the door doesn’t close properly, and asked if I remember anything about it. I told her that with the angle with which I backed out, it only made sense that I hit the back end of the car. However, I can’t be 100% certain that I didn’t damage the front of the car as well.

Am I responsible to pay for the damage? Last we left off, I told her I don’t think I hit the front and she was fine and not upset… I just want to make sure I’m not withholding any money I owe them.

“This case entails two basic factors,” replied Rabbi Dayan. “First, a questionable damage; second, a partial admission.

“Regarding questionable damage, the basic principle of monetary law is hamotzi mei’chaveiro alav hare’aya – the burden of the proof is on the plaintiff. Therefore, if the damage is questionable, you cannot be held liable. Only if we knew that you damaged the door would you be liable.” (C.M. 400:1)

“What if the car owner were sure the damage to the door was done by me?” asked the relative.

“If the damaged party made a definite claim and the driver was uncertain, the halacha might be different,” replied Rabbi Dayan. “A person who admits partially (modeh b’miktzas), is required by the Torah to take an oath about the part he denies. Regarding a Torah-mandated oath, the general rule is that if the person cannot take the oath he is liable –mitoch she’aino yachol l’hishava, meshalem).” (C.M. 87:1)

“Thus,” continued Rabbi Dayan, “if the owner of the damaged car claimed definitively that the car was also damaged in front, whereas the driver admitted damaging the back but was uncertain about the front and unable to swear, the Mechaber and Shach hold him liable for the front. However, the Rama maintains that mitoch does not apply since – unlike the classic case of a borrower who is uncertain how much he repaid – the driver is not expected to know the extent of the damage. Furthermore, in our case, where the damaged party already said not to bother about the dent in the back, everyone would agree that mitoch would not apply, since there is no longer a partial admission of debt.” (C.M. 388:1; 90:10; Shach 90:18)

“I assume there is no difference whether the damage was unintentional, as in our case, or intentional?” asked the relative.

“In cases where a person damaged intentionally, the sages instituted a special penalty,” replied Rabbi Dayan. “The damaged party is believed with an oath as to the amount of the damage, within reason. The same penalty is applied to a thief or one who injured intentionally. It is known as takanas nigzal, an institution regarding one stolen from.” (Shach 388:2; Pischei Choshen, Nezikin 10:38)

“In any case,” concluded Rabbi Dayan, “you should be more careful in your driving.”

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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.