Parshas Toldos 5787
Monetary, Interpersonal Laws and Din Torah (82)
Paying for Damage: Valuating the Damage. We have been discussing various cases regarding when one is required to pay for damages or not. Many times the value of the damage is not clear. Sometimes the value of a second-hand item that was damaged is not easy to assess. If a professional assessor has to be called in who charges for his service, the damager has to pay for it because it is his deed that caused this expense. There is a detailed discussion about this in Teshuvos Vehanhagos (1) whether this is a grama or worse, and if there are other reasons to make him have to pay. His ruling is that the damager has to pay.
Paying or Restoring. There is a very basic detail to analyze regarding the nature of the monetary payment of the damager. Is one paying for restoration? In other words, when an item can be be fixed, is his obligation to pay for the repair or is he required to pay for the depreciation (decrease in value on the market) because of the damage. Many times, i.e. car damage repair, the amount needed to fix is more than the depreciation. The Shach (2)
rules that for an item that can be fixed one must pay for the repairs. For an item that can’t be fixed, the payment is for the amount of depreciation. Similarly, if the victim is not interested in fixing a small damage, but there was depreciation, the logic is that he doesn’t owe for fixing, but still must pay for depreciation. There might be some variables, such as a situation where the car will never be sold and a Dayan should be consulted in this case.
Similarly if one broke a window, which would not cause a decrease in the home’s purchase price (no depreciation), as people fix such things, the damager must pay for it. Also in the opposite case where the depreciation is more than the cost of fixing he can just pay the cost of fixing. In all the cases when he pays for fixing we are referring to the money, but he is not obligated to go to the trouble of calling the workman which the victim can do himself. In other words he is not obligated to fix, but to pay for fixing.
If the damager wants to fix it himself, the owner can say he’d rather a payment. This is explained based on the principle that he has a monetary obligation to pay for fixing and not to fix it (3).
(1) ה:שפו (2) חושן משפט שפז:א (3) עיין חזון איש בבא קמא ו:ג