Hilchos Choshen Mishpat
Volume II : Number 29
Damaging A Merchant: Retail Or Wholesale? v
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?
- 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
- 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)
- 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
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)
(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
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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!
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