Question:
Reuven carelessly caused $1000 worth of damages to his friend Shimon. Reuven happens to own a soap factory and is offering to give Shimon 500 bars of soap, which are sold retail for $2 each, as compensation. Shimon is arguing that he is a dentist – not a soap salesman. How can he be expected to sell the soap to regain the amount that he was damaged?! Even if he would sell them to a store wholesale, he would have to sell each bar of soap for less than $2, and would not be able to recoup his loss!
Who is correct?
Answer:
A. The Torah is very lenient on a damager (Mazik). Even if he has cash on hand with which he could pay for the damage that he has done, he is permitted to pay for the damage with items that he owns, even against the will of the person damaged (Nizik). The value of the items is determined by their retail value in that community at the time of the payment.
B. However, this is only permitted if the Nizik is able to sell the items that he has received, either in his own store or from his home, for the full retail value. Any advertising costs to let people know that he has these items for sale are at his own expense.
On the other hand, if the Nizik can not personally sell these items, and must find other people to sell them for him, he is not obligated to take these items as compensation for the damage. Similarly, if the Mazik is giving him items that are out of season, and the Nizik will only be able to sell them if he waits until they become seasonal, he is not obligated to accept them as payment.
C. Based on the above, in our case, since it is not common for people to purchase soap from a private person such as a dentist even if they did know that it is for sale, and it is most certainly not common for the dentist to be able to sell them within a short span of time, the Mazik may not use the soap as payment. However, if the Nizik would be able to immediately sell the entire amount of soap to a retailer at a wholesale price, the Mazik may give him the soap plus the difference between the wholesale and retail price, or give him more soap to compensate for the loss that he will take by having to sell it for the wholesale price. (1)
Sources:
(1) The Gemara in Bava Kamma (7b) states that although the Torah says that when collecting compensation from the real estate of the damager, the one who was damaged may take the choicest land (Idiyos), when repossessing movable items (Mitaltilin) the Mazik may offer whatever he wishes, and the Nizik has no choice but to accept it as payment. The Gemara’s rationale for this is that “if the item can not be sold here, it can surely be sold somewhere else.” The Rosh there (1:5) states regarding a borrower who is unable to pay his lender with cash and is offering possessions as payment, that although the lender must take the items offered by the borrower based on the above mentioned rationale, the _value_ of these items is determined by what the lender is able to receive for them immediately by selling them himself from his home or store. He can not be expected to run from place to place to find a customer willing to pay what the borrower has determined as the value of this item, nor must he wait for the item to “come into season” so that he can command a better price. If the lender is unable to find anyone to immediately purchase these items, he can not be forced to accept them as payment. This is because we do not want to discourage lenders from lending their money to needy people out of concern that they won’t be able to repossess items of actual value from them if necessary. This is stated as the Halacha in the Shulchan Oruch, Choshen Mishpat 101:9.
The Tur (Choshen Mishpat 419:1), quoting the Rosh, extends this Halacha to apply to payment of damages as well. Although the Nizik must involuntarily accept payment from items owned by the Mazik even when the Mazik does have cash on hand (as opposed to a loan where the lender can demand the cash if there is any, as stated in Choshen Mishpat 101:1), this is only if the Nizik can easily find buyers. In addition, the value is determined by what those buyers are willing to pay. Although the reason stated by the Rosh of not discouraging lenders would not seem to be applicable in a case of damages, the Shulchan Oruch (Choshen Mishpat 419:1) accepts his opinion in this matter as the Halacha, as do the commentaries there on the Tur.
The Perisha (101:9) states that even if there is no one in the community where this payment is being rendered who is interested in purchasing these items, we still estimate the value of the items based on what the typical person would pay for this item if there _were_ a demand for it. However, the Taz (101:9 and 109:1) and the Nesivos Mishpat (109:1 in the Biurim) argue strongly against this, and conclude that the items can only be considered as having value regarding this if we actually do have demand for these items in the community where the payment is being made. Otherwise, they have no value at all.
It appears logical that although the value is determined by what people in that community are willing to pay for these items, this is only if the value is not being artificially suppressed. In other words, if people are only offering to pay less because they are aware that the lender or Nizik is under pressure to sell off as quickly as possible, but if they would not realize that they are under pressure to sell, the people would be willing to pay a higher price, the actual value would be the higher price. However, if this is not a factor, and people in this community are simply paying less for these items because of real dynamics of the marketplace, the value is what they are actually willing to pay, as stated by the Taz and the Perisha.
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This week’s class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet 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. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available from your local Sefarim store.
Feedback is appreciated! It can be sent to[email protected].
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!