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Ki Sovo-Temporary Losses from a Car Accident



I am the guilty party in a car accident and paid for the repair of the other party’s car. However it took the garage two days to repair the car and since the other party needed the car for his job he rented a car for the two days. Am I obligated to pay for the rental?


If we set your question in general halachic terms, your question is whether one who damages another person’s object is liable for temporary damages.

The Torah states that one who damages is obligated to pay for temporary damage where a person damaged another person. One who injures another person must pay for five types of damage that may result from the injury. One type is permanent damage known as nezek e.g. if one cuts off another’s arm he must pay for the loss in value of the victim that results from the fact that he no longer has an arm. Additionally, the one who damaged must compensate his victim for temporary loss of income when he is unable to work due to his injury, which is known as sheves.

The Rishonim discuss if payment for temporary damage is limited to the case where one person damaged another person or applies to other damages as well. The particular case that is discussed by the Ba’alei Tosafos is where a human damaged another person’s animal, thereby causing the animal to be unavailable for work for a limited time. The Ba’alei Tosafos (See Tosafos in Gittin 42B) dispute whether the one who damaged is liable for the owner’s loss of income or not.

The issue essentially is how to classify temporary damages since there are in general two types of damage: inherent damage where the victim or his property was damaged, and causative damage where the victim suffers a loss but nothing concrete of his was actually damaged. In the latter case the one who caused the loss is not necessarily liable.

For example, the Gemara (BK 98) writes that if someone knocks someone’s coin into water he is not liable even though in order to retrieve the coin the coin’s owner must hire a diver. The reason is that the coin was not damaged. It just became inaccessible. Since there is no damage to the coin, the one who knocked the coin is not liable in beis din. The issue is thus if damage that is temporary is viewed as being inherent or causative.

Several Ba’alei Tosafos ruled that if one borrowed or rented a horse and because of negligent misuse the horse became temporarily lame (i.e. unusable) even after he returned  it, the borrower or renter is not liable because the lameness was only temporary and one is not liable for sheves if the victim is not a human being. Essentially, their argument is that from the fact that the Torah split liability for a human who damaged a human into two payments: nezek for the permanent damage and sheves for the temporary damage, the Torah taught us that only permanent damage is viewed as inherent.

Tosafos, however cite R. Chaim Cohen who disagreed and ruled that the borrower is liable. His argument is that even though it is correct that, when the injured is not a human, one is not liable for temporary damage per se, nevertheless since when one damages an animal, the temporary loss from being unable to work lowers the animal’s sale value immediately following the damage, therefore, he argues, the temporary damage is included in nezek for which the borrower is liable. His position really is that whenever the sale value of the damaged object goes down, the damage is inherent.

We should note there still is a difference between damages to a human and damages to an animal since when one damages a human he pays the victim’s full loss of income, but by an animal he pays the temporary damage only to the extent that it affects the animal’s sale value. Nonetheless, the victim is compensated to a certain extent for his temporary loss.

The Tosafos Horosh explains slightly differently. He says that R. Chaim maintained that one is always liable for temporary damage just as one is liable for permanent damage because even temporary damage is inherent. He rebuts the proof that the first opinion brought from sheves with the argument that the only reason the Torah separated sheves from nezek when the victim is a human is because the victim’s temporary incapacity may not affect the human’s sale value. Therefore, it was necessary to separate sheves from nezek and compute it directly based on lost wages. However, where the object that was damaged is an animal or an object, since its temporary incapacity affects its present sale value, it is not necessary to separate sheves from nezek in order to impose liability for temporary damage.

The Acharonim dispute how to understand the opinion that one is not liable for a victim’s loss due to temporary damage. One approach is that of the Nesivos (340, 3). He was very troubled with the lenient opinion because at the end of the day the victim suffers a monetary loss that is uncompensated and he found it difficult to call the damage causative. Therefore, he claims that the only time some are lenient is where the animal was damaged in a manner that the damage will totally repair itself even without human intervention. However, if even after repair the object will remain even slightly damaged (he cites as an example where the self-healing wound will leave a scar) even the lenient opinion agrees that the one who damaged is liable for the victim’s temporary loss. Additionally, if in order to heal a wound the services of a veterinarian are required, the victim is entitled to compensation even for his full temporary losses.

Thus, if one follows the approach of the Nesivos you would be liable for the car rental since cars do not self-heal.

However, the other meforshim (e.g. Chazon Ish BK 13, 2-3) do not agree with the Nesivos and they understand the lenient opinion to be that one is just not liable for all temporary damage. (It is also clear from the questions of others who maintain that one is liable (See Ohr Zorua BM 262-3) that they did not understand the lenient opinion in the way the Nesivos did.)

Moreover, it would seem from what we have written so far that even the stringent opinion would rule that you do not have to pay for the cost of the car rental since the sale value of a car is not affected by the fact that the car will not be available for two days.

However, this requires careful scrutiny since there is a general dispute among the poskim how to evaluate damages that do not affect the overall sale value of the damaged object. The opinion of the Chafetz Chaim and Rav Chaim of Brisk was that one need not pay for such damages since one values a house, for example, as a single entity. Thus, if one broke the window of a house, according to these opinions, he is not liable for the damage since the sale value of the house is unaffected by a broken window.

The Chazon Ish (BK 6, 3) however, disagrees and his position is followed by batei dinim, nowadays. He proves that damages are assessed according to the individual who was damaged, so that one is even liable for damages that would not bother most people but affected the individual whom (or whose property) he damaged. Furthermore, he argues that one cannot apply the rule that we evaluate damages by their resale value if the owner does not intend to sell it now but rather to repair the damage. Since people repair broken windows he says that the one who broke a window is liable.

It would seem, therefore, that according to the strict opinion you could be liable for the cost of the car rental since the owner of the car suffered a monetary loss from the fact that he was unable to use the car for two days and people who need a car, rent cars when their car is temporarily unavailable.

However, whether we can apply the Chazon Ish’s position to temporary damage depends on the way we understand the opinion of R. Chaim Cohen. If one understands, as Tosafos did, that he agrees that one is not liable for temporary damages beyond their effect on the sale value, then where they have no effect on the sale value one is not liable because temporary damages are not damages on their own.

However, if we understand his position, as the Rosh did, that even temporary damages are damages, just that normally they are incorporated into nezek, here where they can’t be incorporated into nezek it would be similar to damage to a human where one must compute the temporary loss by itself and you would have to pay for the cost of the rental.

The Mishpat Hamazik (2, 42) raises another issue that is critical to your situation. You write that it took the garage two days to repair the car. If it took two days of work to repair the damage then everything we wrote above is correct. However, if the only reason the garage took two days is because they had other jobs it is not certain that anyone would maintain that you are liable, because time spent waiting is probably not an inherent damage, according to anyone.

Thus, we have seen that there is a dispute whether the stringent opinion would maintain that you are liable for the car rental. However, in either case according to the lenient opinion if one does not follow the approach of the Nesivos you would not be liable.

We must thus clarify which opinion is authoritative. This is the subject of a dispute as well. The Ramo (307, 6) rules that one is not liable for temporary damage. The Shach (307, 5) however maintains that it is undecided and the Chazon Ish (BK 13, 4) rules that one is liable for temporary damage. However, since according to one approach, even the stringent opinion maintains that you are not liable, beis din would not make you compensate the victim for the cost of the car rental.

In the next article we will discuss whether you should pay either to avoid heavenly punishment or to go beyond the strict letter of the law.




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