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Shabbat Parashat Vayakhel| 5765

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Question: My car got a deep scratch in the door when it was parked. The offender drove on without leaving a note. Because it was expensive to fix, we decided to leave it. Some time later, a similar damage occurred, but this time, the damager left a note and is willing to pay to have it fixed, if he is obligated. Once the door is removed to be fixed, there is little difference in price between fixing one scratch or two. Can I make the second person pay for damage which is significant in its own right but, given the fact that the door was already scratched, did not change very much?
Answer: We want to commend you and the person who made the accident for wanting to do the right thing without regard to coming out monetarily ahead. May many follow in your footsteps (but drive more carefully than he). (The question ignores any involvement of insurance companies, and the answer follows suit.)
 There are two alternative approaches to compensating for causing damages that might be appropriate. One is to pay for the property’s depreciation in value that was incurred as a result of the damage. The other is to see to it that the damage is rectified. At times, the former is more expensive and at times the latter is. The question of which of these the damager is responsible for is likely at the heart of a dispute between the Rambam and Ra’avad (Toein V’nitan 5:2), whether when one asks for payment for rectifiable damages to a field, the claim relates to money or to the field. The Shach (CM 95:18) and Chazon Ish (Bava Kama 6:3) imply that the Ra’avad (who seems to posit that the payment is for monetary loss, not to rectify the situation) agrees that when the normal course of action is to fix the damaged object, then the payment is geared to that need.
 Yet it appears that according to both approaches on the fundamental issue you are not entitled to demand full payment to fix the door. That is because the second damager is not responsible for previous damages you incurred but just for those that he did. Regarding depreciation of the car’s (re-sale) value, there is probably little difference between a car with one scratch and a car with two scratches on the door. The possibility that the same, second scratch would have made a bigger difference in the price had it been the car’s only blemish is not relevant. If one severely damages a luxury car and a second person subsequently “totals” it, the second person is responsible to pay only the value of a severely damaged car.
 From the perspective of paying to fix the car, you probably do not have a claim. The fact that you decided not to fix the door after the first scratch indicates that the damage is one that does not warrant fixing, given its relative cost and gain. In such a case, even the Rambam should agree one does not pay to have it fixed. Is it logical to require an exorbitant price to fix something of little value or improve it only slightly? Under two circumstances, you could demand the second damager to pay to fix the scratch he made: 1) If the average person would pay to have the car fixed and for personal reasons, you decided not to fix it the first time. If so, you can now decide to fix it, but you can only charge for the added price of the second scratch. 2) If the added damage from the second accident is that which causes the car to be in such a state that the average person would fix it despite the expense. If so, the second person would have to pay the whole price of fixing the scratch he made, not half. Again, we compare the situation before and after the accident in question and make the damager make up the difference. (Of course, you could not charge him for any added charge for fixing the first scratch.)
Responsibly figuring out the car’s depreciation and whether fixing it is warranted requires an experienced appraiser. Hiring one is probably expensive enough to make a compromise that all can live with the best option for two honest people.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.,
Yitzchak Eliezer Ben Avraham Mordechai Jacobson o.b.m.

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