Continuing from the Aseres HaDibros of Parashas Yisro, the detailed laws of Parashas Mishpatim focus, among other things, on Torah civil law. In the present article we will focus on a question concerning tort damages that we received recently on the dinonline website.

While driving his well-kept Mazda car, Reuven made a standard stop for a red light. To his great dismay, Shimon, who was driving the car behind him, made his presence more than felt, and crashed his car into Reuven’s vehicle from behind.

Thankfully, no physical damage was incurred, and since Shimon was insured, Reuven’s expectation was that the insurance will take care of the matter to his satisfaction. However, later that day Shimon called Reuven, protesting that the matter should not be taken up with the insurance companies, who do not decide matters by Torah law, but rather based on Torah law principles.

Based on Torah principles, Shimon claimed that he had the right to mend the damage at a garage of his own choice, rather than the official Mazda garage that Reuven was careful to frequent. Moreover, he claimed that he was in fact exempt from paying damages altogether, because the car was only “drifting” forwards (the car was automatic). The absence of human effort exempted him, according to Shimon, from damages.

So how are car damages classified in Torah law? Does Jewish law recognize an obligation of paying for repairs, and how does this translate into numbers? Does the negligence or otherwise of Shimon figure in the question?

These questions, among others, are addressed below.

Classifying the Damage

The first question to investigate is the category of damages into which car damages fall. Torah law recognizes four categories of damages (Bava Kama 2a), namely shor (damages caused by a person’s animals or property), bor (damages caused by a pit or something comparable to a pit), hev’er or eish (damage by fire), and mav’eh or adam (damages caused by a person himself).

Each of the categories possesses a different set of halachos, which are detailed in the first six chapters of Bava Kama.

For car damages, the types of damages that seem to be relevant are adam (direct human damage) and eish (fire).

The category of shor will not apply, because one of the primary characteristics of an animal is that it is alive, and moves without external assistance. This does not seem true of a car, which is not alive, and cannot move without the application of an external force. The category of bor will not apply un this situation, since bor refers to passive, rather than active damages.

There are important halachic differences between adam and eish. Damages caused by fire are exempt from liability where the damaged object is concealed (tamun). In addition, adom is singular in liability for damages that were beyond the damager’s control (Bava Kama 26a; Choshen Mishpat 378:1)

Adam or Eish?

The reason that a car should be classified as adam is because the car is controlled by its driver, and is therefore akin to a stick wielded by a man.

Yet, there remains a difference between a stick, whose entire force is the force given it by the hand that wields it (it is considered kocho, the strength of the person wielding it; see Bava Kama 10b), and a car, in which all man does is push a pedal to cause combustion. The car’s force is not the man’s own strength.

The car can alternatively be compared to the damages of a fire. Like a fire that is lit by human hand but spreads with the wind (Bava Kama 3b), the car is a damaging force initiated by the human driver, which then proceeds to cause damage “of its own accord.” As Shimon claimed, a car in gear continues to move, even without human input.

On the other hand, the way of the car is to be constantly under the control of its driver (providing the driver is in the car), which distinguishes it from a fire, whose way is to “go forth and damage” (Bava Kama 10a) uncontrollably. In addition, a fire requires the assistance of the wind to spread and cause damage, which is not true of a car (see Rashi, Bava Kama 6a).

Yet, we also find that a person’s arrows are compared to the damage of fire (Bava Kama 22a, Choshen Mishpat 418:17). In a similar sense, a car can also be considered an “arrow.” This form a damage, however (an arrow), is considered an extension of the damager’s own person, a case of adam rather than eish.

The primary source for this question is a responsum of the Rosh (101:5), who was asked to classify the damage of a horse being ridden by a rider. The Rosh rules that on account of his control over the horse, it is considered as if the rider had damaged with his own person. Although the force of the horse is not his own, the damage is attributed to the rider.

The same is true of a car. We therefore derive that a driven car will receive the stringencies of adam, meaning that there are no exemptions for damages perpetrated by drivers, and that the driver will be liable even for damages that were beyond the driver’s control (see below).

This basic halachic ruling is given by many modern-day authorities, including Shut Chevel Nachalaso (2:103, referring to a driver who fell asleep at the wheel), Shut Migdal Tzofim (Choshen Mishpat 54), Mishpetei Torah (Bava Kama 22), Shut Shalmei Tzedek (p. 133), and others.

Circumstances Completely Beyond Control

Does this mean that Shimon will always be liable for the damage? What if Reuven makes a sudden stop, leaving Shimon with no chance of averting disaster? And what will be the halacha if Shimon encountered an unavoidable oil spill, which caused him to lose control and skid into Reuven? Will he still be liable? As we will see, the answer to the two questions can in fact be different.

The Ramban (Bava Metzia 82b) takes the principle of adam mu’ad le-olam (a person is always liable for his direct damages) at face value, meaning that a person bears liability for all damages he causes, regardless of circumstances. Even if he causes damage due to circumstances entirely beyond his control—even in the case of the oil spill—he is liable.

The Ramban notes that Chazal gave examples such as a stone unknowingly situated in a person’s lap that falls and causes damages when he stands (Bava Kama 26b), and a person who causes damage when an unusually strong gust of wind blows him off a roof (Bava Kama 27a). If the Gemara mentions these cases as instances of inadvertent damage for which an individual bears liability, then “they mentioned all possible cases of oness; for ‘an unusually strong wind’ includes even wind such as Eliyahu’s… which is among the most extreme cases of oness in the world.”

The Ramban writes that the sole exception to the rule is where the damaged party brought the damage upon himself. For instance, if Reuven suddenly reverses into Shimon, making the otherwise avoidable accident inevitable. If Reuven uses Shimon to cause himself damage, Shimon can hardly be found liable for the damage. Another  famous example is found in the Yerushalmi, where a person went to sleep and while he was sleeping someone else placed his wares next to the sleeping individual. The Yerushalmi rules that the sleeping individual is not liable if he damaged while sleeping. The Ramban explains that the reason is because the owner of the wares brought the damage upon himself.

The Opinion of Tosafos

Tosafos (Bava Kama 27b) and the Rosh, however, opine that a person is only liable for damages in non-extreme cases of inadvertent damages. In a case of an oness gamur, where the circumstances were basically out of the individual’s control, he bears no liability. Only in cases in which there is at least partial negligence, or cases that are “close to negligence,” is the damager liable.

There is a dispute whether the Rambam agrees with Tosafos or the Ramban. The Shach (378, 1) is of the opinion that Rambam agrees with the Ramban. However, the Rema (378:1) rules like Tosafos and the Rosh.

It follows that the driver can rely on this ruling to exempt himself from liability in circumstances totally beyond his control. Thus, for some cases of an oil spill, Shimon will be able to claim exemption, based on the fact that the accident was totally out of his control. However, in the case of Reuven’s sudden stop (even if unjustified), Shimon will not be able to claim an exemption, since according to traffic regulations he was at least partially at fault for not leaving enough distance between himself and Reuven.

Paying for Repair or Depreciation

Having decided that the driver is liable, the question of how much he must pay is not as simple as it might seem. In general, the liability for damages is the depreciation in price of the damaged item (Bava Kama 55b). Yet, in the case of a dented car, the depreciation in price can be close to zero, whereas fixing the damage is a costly affair. How much then must be paid?

The above question extends to many cases of damages. How much is the depreciation caused by a stain to a second hand suit? What is the devaluation of a house whose window is broken? In both these cases, the answer is probably zero. Shall we then exempt the damaging party (who spilled wine on the suit or broke the window) entirely? How is this difficulty overcome?

The Chazon Ish (Bava Kama 6:3) explains that the reason why ordinary damages relate to the depreciation in value is because the damaged item stands for sale rather than repair. However, in a case where the damaged item stands for repair, the damage is assessed not by the decreased sale price but rather by the cost of repair.

Among the proofs he cites for this principle is a Gemara in Niddah (58a), where we find [according to Tosafos] that one who stains another’s garment is responsible for its cleaning. Since the norm is to clean sullied garments, the damager must pay the cleaning bill rather than the depreciation in price.

A similar distinction is already made by the Nesivos Ha-Mishpat (340:3). Claiming that it is unreasonable that the damager should not be liable for high costs of repair, the Nesivos likewise cites the above Gemara to prove the liability of the damaging party. The practice of batei din is to follow the ruling of the Chazon Ish.

For cases of a dented car, another clause by which to find the damager liable is the paint that was worn away. The Ketzos Ha-Choshen (396:10, based on Tosafos, Bava Kama 98a) notes that where there is actual physical loss (part of the damaged item breaks off), rather than deformation alone, the damaging party is liable to repair the damaged property. The Ketzos rules that if there is any physical loss to a damaged item, the damaging party becomes liable for the entire cost of repair.

In the case of a car accident, while the principle damage is the dent, there is some actual “loss” in the paint that is rubbed off by the impact. Based on this, there is further room to find the driver liable for paying the repair costs.

Insurance Companies and Garages

Does Shimon have a right to demand he fixes the car by himself? Can he take it to whichever garage he chooses? Is he within his rights to demand that the Reuven make no claim from the insurance company, but rather closes the issue privately with the Shimon?

The answer to some of these questions is in the negative.

Certainly, Shimon cannot demand to have the car fixed by an Arab on the West Bank, since that is not customary. If Reuven is always careful to use the official Mazda garage for his repairs, it appears that Shimon must use the same garage. The reason for this is that it can be argued that Reuven’s exclusive use of the official garage has financial value: when he sells his car, he will be able to claim that all repairs were executed by the official garage, rather than by some unknown entity. Therefore, even if Shimon claims he can achieve the same effect in a different garage or by doing the repair job, perhaps he must use Reuven’s regular garage. Certainly, if the car is under warranty and the warranty will be voided if a non-official garage repairs the damage, Shimon would have to pay the cost charged by the official garage.

Concerning the insurance agent, Shimon cannot prevent Reuven from claiming damages from the insurance company if Reuven stands to gain from this, since this is the universal custom, and anybody driving on the road does so under the understanding that in cases of accidents the claim is made from the insurance. Of course, if Shimon will pay the amount that Reuven would receive from the insurance company, Reuven would have no right to claim from the insurance company since he is merely damaging Shimon for no reason.

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