The Torah obligates a person to pay for damage that he causes. Traditionally, this is calculated by determining the market value of the object before and after the damage, and paying the difference. This approach works well for automobiles and other items that have a developed market for used and damaged items. However, in our society there is little demand for many used items such as clothingor eyewear. If a person damages six-month old designer eyeglasses, how do we assess the damage? People simply do not buy used eyewear, and therefore if they are actually sold, it would only be for a token amount of money. Does this mean that the mazik (tortfeaser) need not pay the victim? A related question involves items that have sentimental value. How does halacha evaluate such goods? The market value of your great grandmother's knitting needles is dismal, but to you it is priceless. Does the one who damaged them pay their market value, or the sentimental value it has to the owner?
The Sha"ch (CM 72,128) writes that even if an object is very dear to its owner, a mazik still does not pay more than its market value. Along the same lines, Rabbi Yaakov Reischer (1670-1733, Shevus Yaakov 2,29) discusses a case where a person paid a handsome sum of money for an esrog, which was subsequently damaged. The question was whether the mazik pays the value of a regular esrog or the large sum of money paid by the owner. Is this considered a more expensive esrog, or simply that the owner overpaid? Rabbi Reischer answered that an esrog is only considered more expensive if there is a market that pays more money for these qualities. Therefore, if it is common for customers to pay a higher price for this type of esrog, then this is considered its' value and the mazik must pay the higher amount. However, if customers generally would not pay more money for these qualities, it is considered that the owner just overpaid and the mazik must only pay the price of a regular kosher esrog.
These sources teach us an important principle about value. Value is not subjective; it is based on the existence of a market that is ready to pay that price. Therefore, if I am willing to pay $300 for an esrog because I find it to be beautiful, that does not necessarily become its' value. Only when it becomes accepted to pay more money for these qualities does this price become its' value. For this reason, there is no obligation to pay the sentimental value of an item as long as there is no market for it. For example, if my grandfather's fountain pen has a resale value of $30, but to me it is worth $1000, its' value is still $30. However, if my great-grandfather was a great Chasidic Rebbe and there are numerous Chasidim willing to pay $10,000 for the pen, that becomes the value.
When considering how to determine the value of used clothing and eyewear, the application of these principles becomes complicated. If there is no real market for personal items, does that mean they have no value? Indeed, the Nesivos Hamishpat (148,1) writes that one does not pay damages for an item that is only valuable to the owner and cannot be sold. However, many commentaries have great difficulty with this approach. Rabbi Shlomo Zalman Aurbach (1910-1995) suggests that this idea is limited to an intangible right, like a right to pass through someone else's property. Because it is not a physical item but an abstract right, its' entire worth is based on the existence of people who would actually purchase it. However, a tangible item, like a shirt or pair of glasses, is considered valuable even if there are no people who would buy it.
The difference between sentimental items versus used personal items needs clarification. Why do we follow the market and consider my grandfather's pen as being worth only few dollars, but consider a usedshirt as having value in spite of the fact that nobody would buy it? The answer is that value is not inherently dependent on whether or not there are customers willing to purchase the item. However, because value cannot be subjective or personal, the market usually serves as an indicator if this item can truly be considered valuable. An example of this is Rabbi Reischer's case of the esrog. If I prefer a certain shape or color, it does not make the esrog inherently worth more. However, when there is a market for this specific type of esrog, then we consider the qualities that the market appreciates more than my personal preference. In contrast, it is universally accepted that a pair of glasses or suit are valuable items. That is why people pay so much money for them in the first place! Rather, because people do not wear used clothing or eyeglasses, the market does not reflect that value. For this reason we do not follow the market in these situations.
One question still remains. If used personal items have value which is not reflected by the market, how do we determine the dollar amount that should be paid for damages? Some contemporary poskim advance an interesting solution. Value is connected with usage. If a person buys a shirt for $40 and expects to wear it for two years, he is essentially paying $20 for each year of use. After wearing it for a year we can say he has 'used up' half of its value. Therefore, if it gets damaged after one year, there is about $20 of value left. However, this solution is not perfect. Clothing looks and feels better when it is new, and gradually deteriorates. Therefore, the first year of use has more value than the second year of use. None the less, determining value based on usage gives a general framework to work with when there is no market for such items.
For part II click here