Question: A person had his car fixed in a garage.  When the car was returned, he realized that although the original damage was repaired, new damage was sustained due to the garage’s improper handling of the car.  When the customer pointed this out to the garage owner, the owner replied, “We’ll repair it free of charge.”  The customer instead took the car to a different shop to be fixed and then asked the first garage to reimburse him for the expense.  The garage owner refused arguing that he would have done it for free and, therefore, he is not obligated to pay anything.  Who is correct?

Answer:  There is a section of Gemoro (Bavo Kamo 85A) that deals with this argument in a slightly different situation.

The Gemoro discusses a person who inflicted personal injury.  According to Torah rules, the victim is entitled to payment for his medical expenses.  The Gemoro discusses a situation where the one who inflicted the injury was a doctor who offered to heal his victim in lieu of payment to another doctor.  The Gemoro rules that the victim may refuse with the argument that in my eyes you are like “a lion in ambush.”  The Rosh (siman 1) explains that the patient’s argument is that he must feel comfortable with his doctor and under the circumstances it is understandable that he doesn’t feel that way.

From this Gemoro it would seem that one can draw two conclusions.  First, it would seem that in general one may repair the damage he has inflicted in lieu of payment for the damages.  Second, in case there are mitigating circumstances, similar in nature to those described by the Gemoro, the victim may reject the damage’s offer.

There is another section of Gemoro which sheds further light on the subject.  The Gemoro (Bavo Metsiyo 5A) is interested in determining the case where we apply the Torah’s rule that one who admits partial liability is not subject to an oath if the object under discussion is immovable.  The Gemoro states that the case is where one dug holes in the victim’s property.  The Rishonim dispute the precise nature of the case.

The Rambam (To’ain Venitan 5, 2) explains that the Gemoro is discussing a case where the owner of a field claimed that someone dug two pits in his land and the digger claims he only dug one.  The Gemoro rules, according to the Rambam, that since we’re discussing an immovable object the one who damaged does not swear the Torah-designated oath.  The Ra’avad, (ibid) in his notes, comments that the Rambam’s ruling is correct, only if the owner of the field demands that the damager fill the holes and not if he demands money as payment for the damage.  The Magid Mishne disagrees with the Ra’avad and claims that one can never demand that the one who damaged, repair the damage.

The Shach (siman 95, note 18) discusses these opinions and remains in doubt if the victim can force the damager to repair the property.  However, he is certain that the one who damaged, can repair the property in lieu of payment for his damages.  The Tumim and Nesivos agree with the Shach that the one who damaged has the prerogative to repair the damages because his basic obligation is to repair the damaged object.

The Chazon Ish (Bovo Kamo 6, 3) takes exception to the previous opinions. He maintains that the one who damages is not required to pay for the repairs to the damaged object but to pay for the damage itself i.e. one must just compute the loss in value sustained by the damaged object and the damager is assessed for that amount. Moreover, when he does pay, the owner is not required to use the money to repair the object. For example, if a person’s second-hand car suffers damage, even if the owner announced his intention to junk the car, he is entitled to payment for the loss in value of his second-hand car.

The Chazon Ish continues that there can be a major difference between him and the others concerning the issue of how much one needs to pay for damage.  He cites as an example an object which initially suffered a loss in value of four dollars but at the time of repair the cost to repair is only one dollar due to price fluctuation.  According to the Chazon Ish, the damager must pay four dollars, whereas according to the Shach, he needs to pay just one.

It is notable that Rav Moshe Feinstein (Dibros Moshe:  Bava Kamo 57, 2) arrives at the same conclusion as the Chazon Ish, i.e. that one is required to pay depreciation and not repairs. He explains that the fact that the doctor could have repaired the damage in lieu of payment for medical bills, if not for the patient’s lack of confidence, is unique. The reason is that the payment for medical expenses is not payment for damages but for expenses.

The upshot of this discussion is that the question if one who damages has the prerogative to repair the damaged object in lieu of payment is a major dispute with the Ra’aved, Shach, Tumin, and Nesivos maintaining that the damager has this right and the Chazon Ish and apparently R. Moshe Feinstein maintaining that the damager does not have this right.  Thus, in our case, the Chazon Ish and R. Moshe Feinstein maintain that the garage owner would lose his case but the Shach, Nesevos and Tumin would rule for the garage owner.

In this particular situation, many times even according to the Shach et al, the car owner will win the case.  The reason is because just as in the case of the Gemoro the victim can argue that he does not want to avail himself of this doctor’s services because of his past experience, so too the car owner may be justified in refusing the services of the garage. This would depend on circumstances e.g. if the garage owner was negligent, beis din would understand the car owner’s refusal to avail himself of the garage owner’s services.

Tags: Liability Malpractice Nezek

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