Classifying the Damage

The first question that must be asked in the context of Jewish law is which category of damages the specific case falls into. Torah law recognizes four categories of causes of damage (Bava Kama 2a); shor (damage caused by a person’s animals or property), bor (damage caused by a pit or something comparable to a pit), hev’er or eish (damage by fire), and mav’eh or adam (damage caused by a person himself).

Each of these categories has different halachos, which are detailed in the first six chapters of Bava Kama.

For damage by a car, the categories of damage that are 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 is not true of a car, which is not alive and cannot move without an external force.

There important halachic differences between adam and eish. Damage caused by fire is exempt from liability where the damaged object is concealed (tamun). In contrast, adam 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 at all times, 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 the man does is push a pedal to cause an engine to work. The car’s force is not the man’s own strength.

The car as a cause of damage can alternatively be compared to a fire. Like a fire that is lit by a human hand but then is spread by the wind (Bava Kama 3b), the car is a damaging force initiated by a human driver, but then proceeds to cause damage “of its own power.”

On the other hand, the fact that the car is constantly under the control of its driver distinguishes it from a fire whose way is to “go forth and damage” (Bava Kama 10a) uncontrolled. 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).

A car might be considered to be like an arrow, which would make it an extension of the damager’s own person.

In his responsa, the Rosh (101:5) was asked a similar question concerning a horse, in which the questioner considered three possible damage categories: shor, eish, and adam. In his response, the Rosh rules that on account of his control over the horse, it is considered as if the rider himself had damaged. Although the force of the horse is not the rider’s force, the damage is attributed to the rider. The same is true of a car.

We therefore conclude that a driven car will certainly have the stringencies of adam, meaning that there are no exemptions for hidden damages perpetrated by cars, and that the driver will be liable even for damages that were beyond the driver’s control (see below).

Circumstances Completely Beyond Control

We have mentioned that a person is liable for direct damages he causes, even if he causes them inadvertently. What is the extent of this halachah? For instance, if the damage was caused because of a skid caused by a sudden oil spill from the car in front – would the driver still be liable?

The answer generally depends on a dispute between the Tosafos and the Ramban.

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

The Ramban notes that Chazal gave examples such as a stone unknowingly situated in one’s lap that falls and causes damages when he stands up (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’ appears to include even wind such as Eliyahu’s… which is among the most extreme cases of oness in the world.”

The only exception to the rule, according to the Ramban, is a case where the damaged party brought the damage upon himself (for instance, if somebody put something in the street in a manner that passing cars can’t see it). If Reuven uses Shimon to cause himself damage, Shimon can hardly be found liable for the damage.

The Opinion of Tosafos

Tosafos and the Rosh, however, are of the opinion 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 entirely out of the individual’s control, he has no liability. Tosafos write (Bava Kama 27b):

“Even though earlier we derive … that [a case of] oness is like a willful act with respect to adam ha-mazik, the Torah did not include oness gamur…. It would seem that we should deduce that an adam ha-mazik is exempt in cases of oness resembling theft…. But in cases of oness resembling loss, which is closer to negligence… it would seem that an adam ha-mazik is liable.”

If the event of damage resembles an act of theft, over which the custodian has little control, the damaging party is exempt. Only if the event resembles a loss, where the custodian was at least somewhat negligent in losing the thing, will the damaging party be liable.

In practice, the Shach (378:1) explains that according to the Rambam and the Shulchan Aruch a person is liable for his direct damages even where the circumstances were entirely beyond his control (see, however, Maggid Mishnah, who cites the opinion of Tosafos in his commentary on the Rambam). However, the Rema (378:1) cites the ruling of Tosafos and the Rosh.

It follows that the driver can rely on this ruling to exempt himself from liability in circumstances beyond his control.

A Stationary Car

It should be noted that the principles above apply to a car that is on the move. What is the halachah of a stationary car?

If a stationary car causes damage, the car is considered a bor, the category of damages caused passively (like somebody falling into his pit).

In one instance, a passer-by tore his shirt as he walked past an awkwardly parked car whose broken and sharp wing mirror protruded onto the pavement in a manner that barely allowed passers-by to squeeze through and was hardly noticable.

Although the driver was clearly negligent in leaving his car parked in this manner, the halachah exempts a bor from damages to kelim –  vessels or utensils (Bava Kama 52a; Choshen Mishpat 410:21). Because the stationary car is classified as a bor, and the shirt is considered a keli (utensil), it follows that the driver was not liable for damages.  It should be noted that some opinions (Birkas Shmuel) maintain that the car owner is chayav bedenai shomayim-after  his death the heavenly court would rule that he was obligated to make amends.

Paying for Repair or Depreciation

When the driver is liable, the question of how much he must pay is not as simple as it might seem. In general, the amount of the liability is related to 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 may be costly. How much then must be paid?

The above question extends to many cases of damage. How much is the depreciation caused by a stain to a second hand suit? What is the devaluation to 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) introduces a novel idea to solve problem. He explains that the reason ordinary damages relate to the depreciation in value is because the damaged item stands for sale rather than repair. However, in case 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 Rashi] that one who stains another’s garment is responsible for cleaning it. 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 Question of Paint

In our case of the dented car, there is further reason to find the driver liable.

Addressing the case of a coin whose face was worn away by a damaging party, the Ketzos Ha-Choshen (396:10, based on Tosafos, Bava Kama 98a) notes that there is a difference between damages that involve actual physical loss (part of the damaged item breaks off), and cases that involve deformation alone. Where there is actual physical loss, the damaging party is liable for repair. It is only when there is no physical loss, such as a coin that was deformed, that the damaging party exempt.

The Ketzos rules that if there is any actual physical loss to a damaged item, the damaging party becomes liable for the entire cost of the repair. In the case of most car accidents, there is some loss: although the principle damage is the dent, there is some actual loss of paint that is rubbed off by the impact. Based on this, there is a further basis to find the driver liable to pay the repair costs.

Tags: Car damage Law Torah

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