Hilchos Choshen Mishpat

Volume II : Number 29

Damaging A Merchant: Retail Or Wholesale? v

Question:

A. A customer entered a Judaica store, and tripped as he was examining a display of glass Menorahs and crystal wine decanters. He fell headlong into the display, causing extensive damage. He agrees that he should have to pay damages to the store owner, since the accident was caused by his carelessness, but would like to pay the wholesale cost that the store owner paid for the items. The merchant is requesting the full retail price that he would have received from customers for these items if they had not been damaged.

Who is correct?

Answer:

1. A. In the above case, the customer is obligated to pay the full retail value of the items that he broke to the store owner, and not merely the merchant's wholesale cost.

   Similarly, any time a person damages an item that belongs to his friend, he must pay for damages based on the full value of the item, as it is sold in stores in that area. This is true even if the owner of the item actually purchased it at a deeply discounted price, or received it as a present. (1)

2. B. If there are a number of merchants in that area that are selling these same items for various prices, the damager need only pay the lowest retail price charged for these items in any store in that region. However, this is only if it is available to the public at this price, and not restricted to a few select members of a "price club". If the damager would want to purchase an identical item in such a store and replace the damaged item with it, he would most definitely be permitted to do so. (2)

3. C. The merchant can not demand that the damager replace the items, and must accept as compensation, the value of the item, as it was worth at the time of the breakage.

   Therefore, if the damaged item was used, the damager need only pay it's value as a used item, even though the merchant will not be able to purchase an identical item for this amount of money and will have to add some of his own money to replace the item.

   If the damaged item is still somewhat usable, or can be fixed by a repairman, the damager need only pay the amount that the item has been devalued because of the damage, or the price to get it repaired to pre-damage condition. The merchant would keep the damaged item in this case.

   The merchant has no right to demand that the damager keep the damaged merchandise, and replace it with a new merchandise, or money with which to purchase a new merchandise. (3)

Sources:

(1) The Gemara in Bava Metzia (99b) raises a question in the case of a porter who was transporting a barrel of wine for someone on market day and broke it. Does the porter have to pay the owner of the wine the higher retail value of the wine as he would have sold it on the market day, or the lower retail value as he would have sold it on a regular day? At no point does the Gemara entertain the possibility that the porter should only have to reimburse the wine owner the price that he paid wholesale, or his actual cost in making the wine. From this we can infer that the actual value of an item is determined by what the average person would have to pay retail for this item, even if in this case the owner received it as a present, or found it laying in the street ownerless.

The Shulchan Oruch (Choshen Mishpat 103:1, and 419:1) states regarding selling property that the value of property should always be determined by a Bais Din in the region where the property is being sold. The same would apply regarding estimating damages to a specific item, that the determination of how much is owed is based on where the damage took place. Therefore, if, for example, something were damaged in the United States and it was brought afterwards to Israel, and in Israel the valuation of the damage was more (or less) than what it was evaluated to be in the United States, the damager would have to pay the damage as determined in the United States. In this manner, the law of the damager is similar to the law of a thief, in that just as a thief is obligated to reimburse the owner based on the value of the item at the time of the theft, so too, a damager must pay the value of the damage based on the value at the time it was damaged.

(2) Once we have established that the value of the damaged item is determined by what the average person would pay retail for it, it follows that it would have to be available to the average person at this price. This is stated in the Nesivos Mishpat (148:1). Therefore, even if the damager could personally buy this item for a lower price in a store that is restricted to certain individuals, since the average person does not have the ability to purchase this item for that price, this can not be considered the actual price of the item.

However, if the damager wishes to actually purchase the identical item in that store and bring it to the merchant as payment for his obligation, this would be permitted. When it comes to damages we have a rule of "Shava Kesef K'Kesef" - something that can be sold for a certain value can be used as a monetary payment for that value, and this would definitely be considered payment for full value of the damages.

(3) This is discussed in the Gemara in Bava Kamma (7a and 11a), the Shulchan Oruch (Choshen Mishpat 403:1, and 419:1), and the Chazon Ish (Bava Kamma Siman 6:3).

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!