Q: A woman borrowed a pair of earrings from her friend, and lost one earing. The value of the pair of earrings was $1,000. The remaining earing can only be sold for $300. How much does she pay?
This question has a rich history. In the 1700s Rabbi Yaakov Chaim Ibn Naim of Morroco and Rabbi Eliyahu Israel of Alexandria discussed this exact case. In the 1800s many notable acharonim weighed in on this question as well. In this post we will present an analysis of one aspect of this question and will continue our discussion in a future post.
Let us begin with a very similar case that has a drastically different halachic outcome. If a person damages one shoe, is he obligated to pay the value of a full pair of shoes, or only half? Arguably, the second shoe is unchanged, and therefore, he should only have to pay half the value of a pair of shoes. Although his actions have caused the second shoe to lose its value, that could be considered an indirect damage which a mazik, or tortfeaser, is not liable for since the decrease in value is the result of an action done to another item (i.e. the other shoe). Obviously, this argument is deeply flawed. A pair of shoes is not treated as two separate items, i.e. a right shoe and a left shoe. Rather, the two shoes together are one pair and are treated as one object, since a single shoe has no use. Therefore, if one shoe becomes unusable, practically speaking, the entire pair of shoes has been destroyed. For this reason, a person who damages a single shoe must pay the value of a full pair.
Applying this logic to our discussion about the lost earring would imply that the woman must pay the full value of the pair, which is $1,000. Yet, the discussions about earrings from the 1700s and 1800s assume that a pair of earrings is different. They view each earing as a separate object with its own individual value. Therefore, when one earing becomes lost, we cannot say that you are automatically responsible for the value of the entire pair.
The probable reason why earrings were viewed as separate items is that jewelry is typically made from precious metals and stones. While an earring gains value if it is part of a pair, the gold and diamonds give each one intrinsic value regardless. Therefore, when one earring is lost, the other earring still has significant value. For this reason, when one earring is destroyed, one cannot assert that the entire pair was destroyed. Rather, the loss of one earing has indirectly caused the other to depreciate in value. This is very different than a pair of shoes. As we have pointed out, a shoe only has value as part of a pair. Therefore, if one shoe is damaged the entire pair has been destroyed.
This distinction is important. What is the halacha if the earrings were costume jewelry? Unlike authentic jewelry, there is no real value for a single costume earring. As such, it is comparable to the pair of shoes, and the mazik must pay the entire value.
We can now approach how a lost authentic earring is evaluated. If as a pair they are sold for $1000 but individually each earring could only be sold for $300, how is the value of the lost earring determined? Is it half the value of the pair, which is $500, or the market value of a single earring which is only $300? The poskim assume that the value of a single earring is calculated as half the value of the full pair ($500). This is probably because value is determined based on the normal way an item is sold. Earrings are usually sold in pairs. Therefore, we calculate the value of a single earring as half the pair, which is $500.
The remaining question is whether the tortfeaser is responsible for the depreciation of the remaining earring. If one earing is damaged, does the damager pay only the value of the earring that he destroyed, which, as explained above, is $500, or is he also responsible for the fact that the surviving earring, which had been worth $500 when it was part of a set, is now only worth $300. Must the Mazik pay for the $200 depreciation of the remaining earring? The answer is that depreciation is viewed as an indirect damage. Therefore, a regular mazik is not liable for the depreciation of the remaining earing. A shoel, one that borrowed and lost an earring, would have different halachos, which will explored in the next article.
Another example of the principles mentioned above is when one volume from a set of seforim was damaged. For example, a five volume set of chumashim is sold for $75. Now that one volume is unusable, the remaining volumes can only be sold for $10 each. How much must the damager pay? Because each volume still has some value, this is different than the pair of shoes. We cannot view the entire set as destroyed. More correctly, the damager destroyed one volume and indirectly caused the others to depreciate. Therefore, if he never became a guardian, he is only liable for that volume. As we have explained, it is calculated based on the set’s original sale price. As such, since the five volume set costs $75, the damager pays $15 for the volume, but is not responsible for the loss of $20 on the remaining four volumes.