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Shabbat Parashat Vayigash | 5769

Payment for Indirect Damage When the Plaintiff Could Have Demanded More

Pinat Mishpat

(from Halacha Psuka, vol. 50- a condensation of a psak by the Ma’aleh Adumim Beit Din)


Case: Def admitted responsibility for “totaling” pl’s car. Pl’s insurance company paid the car’s full value, but, according to their agreement, pl must continue paying the premium on the no longer existent car until the end of the year. Pl demands that def reimburse him that premium until year’s end. Def says that he does not have to pay for damage to the car since pl has been reimbursed and not for the premium because this is indirect damage.


Ruling: The Maharsham (IV, 7) deals with one who burns down another’s insured house. He says that at the time of the damage, the damager became obligated to pay and that the homeowner’s external agreement with an insurance company is not a reason to exempt the defendant from paying. It is not the damager’s business whether the homeowner will keep his payment or return it to the insurance company. The Ohr Sameiach (Sechirut 7) and beit din agree with this logic. Thus, pl could have demanded the full price of the car, which he did not. Beit din does not order greater payments than a plaintiff requested (Rama, Choshen Mishpat 17:12) because we interpret the lack of claim as mechila (relinquishing of rights) on the additional money.

Is the outlay for the premium too indirect (grama) to demand? It is not dina d’garmi (which one has to pay) because the Rosh says that this is only when the damage occurs immediately and was an expected outcome of the action. In this case, neither condition is met because pl pays the premium later and not everyone has this type of policy. Nevertheless, one can obligate payment for two reasons. First, def benefited from the insurance policy, in which case, he should pay the indirect expenses that are related to it. The Minchat Yitzchak (II, 88) employed this logic to obligate payment for an increase in premium of the damaged party after he was mochel the damage payment because of the insurance coverage. (Beit din inferred this position from the Rosh.) Even those who argue with the aforementioned Maharsham would agree that one should reduce the added expense from the insurance in considering whether the policy actually covered all of the expenses. If not, one can make a claim on the direct damage. Also, beit din can obligate one who causes grama damage as a penalty when it is a common case (see opinions of Shach (386:3) and S’ma (386:8)). Since car accidents with insured cars are common and the public has an interest to discourage negligence, it is appropriate to be stringent.

Even if def is not obligated for the premium, def stills owes the amount that pl is claiming due to the direct damage. Because of the indirect damage, pl is unwilling to be mochel the entire amount. If one wants to consider there to have been mechila, it is a mistaken and thus invalid one. Therefore, def is obligated to pay.


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