Rabbi Meir Orlian
David was visiting his friend Moshe. “I need to run over to the pharmacy to pick up something,” he said. “I wish I had my car here!”
“You can take my car,” said Moshe. “I’d drive you, but I have to watch the kids.”
“Are you sure?” asked David.
“Yes,” replied Moshe. “Just please be careful.” He handed David the keys.
David drove carefully to the pharmacy. As he parked, though, he neglected to see a small pole fixed in the ground and severely cracked the front fender.
When David returned, he apologized to Moshe and offered to pay for the replacement of the fender.
“I’ll have to take the car to the body shop for an estimate but don’t have time to take care of it this week,” said David. “Meanwhile, I can still drive with it.” He taped the fender and put some screws in to strengthen it.
A few days later, Moshe was involved in a much more serious accident, which affected the whole front of the car. Baruch Hashem no one was injured, but the front fender, headlights and hood all had to be replaced.
While at the body shop, Moshe checked what it would have cost to replace the cracked fender. He asked David for that sum. “I wonder whether I still have to pay,” David said hesitantly. “What’s the point of paying to replace the cracked fender when it was completely ruined anyway in the second accident?”
“The second accident is irrelevant,” countered Moshe. “You damaged my car and owe me for the damage. What happened later is of no consequence!”
The two came to Rabbi Dayan to clarify the issue.
“A first glance, this might depend on the nature of damage payments,” replied Rabbi Dayan. “The Shach (C.M. 387:1; 95:18) maintains that the primary obligation is to repair the item and restore it to its former status. One could argue that, in this case, there is no longer any need to replace the fender. The Chazon Ish (B.K. 6:3), however, maintains that the damage immediately becomes a monetary obligation. Thus, he writes that whether the owner chooses not to repair the damaged item, or the repair becomes pointless, or the cost of repair changes, the monetary obligation remains, based on what it was at the time of the damage.
“However, according to the Shach as well, David has to pay here,” said Rabbi Dayan. “The Shach agrees that where there is a loss in monetary value and it is not possible to repair the damage, there is a monetary obligation. Thus, since the cracked fender is already replaced, the Shach would agree that a monetary obligation exists.”
“Are there any examples of this?” asked David.
“Ulam Hamishpat (C.M. 387) writes that if a person damaged another’s property by digging holes in it and the owner relinquished ownership of the courtyard (hefker),” answered Rabbi Dayan, “the one who damaged cannot discharge his obligation by filling the holes, even according to the Shach, but would have to pay the former owner the value of the damage.
“A somewhat similar halachah exists regarding a person who injured another,” continued Rabbi Dayan. “The halachah is that the medical expenses, ripuy, are evaluated and the one who was injured is paid that amount. If the injured person subsequently died, that amount is paid to the inheritors, even though it is now no longer needed for medical care” (Tosefta B.K. 9:2, Rashi, Sanhedrin 78b s.v. nosein).
“Thus, even though Moshe had another accident and the damaged fend