Question
Shortly before Succos I was checking through esrogim at an esrog stand in order to find one that I liked. I picked up a seventy-five dollar esrog but I dropped it and it was seriously damaged. I told the esrog dealer what happened and wanted to pay him for the damage, thinking that I should pay the full seventy-five dollars. To my pleasant surprise the dealer replied that I should pay him twenty-five dollars since he had asked a rabbi who told him that he should take one third of the sales price for damages. I paid what he asked and left. Was he correct and if not, do I now owe him money since he made a mistake?
Answer
It seems that the reason he asked for a third is that is about the cost of an esrog for an esrog dealer. (That is what the questioner in the Mishpat Shlomo (1, 7) wrote.). Therefore, your first question is how much one must pay when he damages an object in a store: Must he pay the amount that the store charges or the amount the store paid for the object?
There are two sections of Gemara that indicate clearly that he must pay the amount the store charges. One section is a discussion (BM 99B) that questions how much must one who stole a bunch of fifty dates pay. If the bunch is sold together, it sells for forty-nine prutos. However if the owner sells each date separately, as he planned to do (Rambam), he would charge a pruto for each. So his loss of potential revenue was fifty prutos.
The Gemara (as explained clearly by the Rambam (Gezeilo 3, 3) and CM (362, 12)) rules that we are lenient and the thief who stole the entire bunch must pay only forty-nine prutos. We do not accept the owner’s argument that he planned to sell them individually and earn fifty prutos. Even though the Gemara discusses one who stole, it is clear (the source that we are lenient and do not charge on an individual basis is a rule stated concerning damages) and specifically mentioned by the Rambam, that the rule applies to damages as well.
We should note that there is no mention of how much the owner paid for the dates. It is obvious that the owner paid less than forty-nine prutos and certainly less than fifty prutos for the dates since one operates a store in order to earn a profit. Moreover, the only time the thief only pays forty-nine prutos is when he stole the entire group of fifty dates. However, if he steals or damages one or several dates he must pay a full pruto per date which is certainly more than the storeowner paid. (This is obvious from the Gemara and written explicitly by the Chazon Yecheskel (BK 6, 10).) Thus, it is clear that one who damages must pay the price that the dates are sold for and not the price the storeowner paid.
The other relevant section of the Gemara (BM 99B) discusses a porter who broke a storeowner’s barrel of wine. The storeowner had two different prices for the wine: a high price on market days when demand was greater and a low price on non-market days when demand was much lower. The issue that is discussed by the Gemara is whether the porter must pay the high price or the low price. However, there is no mention again of how much the storeowner paid for the wine. Therefore, it is clear that what the storeowner paid is irrelevant.
The Gemara adds an important point that is very relevant to your question. The Gemara rules that the porter is not assessed the full price that the store charges because we must reduce the price by the storeowner’s costs that are sale-related and are factored into the price. The costs that are mentioned by the Gemara are the amount that the storeowner pays to the one who installs a spigot, and the cost to transport the wine to the market. The reason for reducing the price by these amounts is because these are expenses that one only has when he sells wine and since the wine wasn’t sold the storeowner saved these expenses. Thus, if the esrog dealer’s price of seventy-five dollars includes, for example, sales tax that he will not have to pay since he didn’t sell the esrog, we would reduce the price by the amount that reflects sales tax.
The Mishpat Shlomo (1, 7) also rules that the one who damaged must pay the retail price. His argument is that whenever one damages, even when the owner is a private individual, we do not take into consideration how much the owner paid for the damaged object. For example, if someone damaged an object which the owner received as a gift, we do not say he does not have to pay for the damage.
We should note further that R. Mordechai Gross writes (Teil Talpios 68, page 74) that he once asked Rav Eliashev this question and Rav Eliashev also ruled that the one who damaged must pay the price the store charges. His reasoning was that besides the cost of the object, the storeowner has other expenses such as store rental and labor costs that are factored into the price. It would seem that this wasn’t Rav Eliashev’s only reason since part of the price is also the profit that the storeowner earns and if one were to understand that Rav Eliashev’s only argument is the storeowner’s costs then the price would be reduced by the portion of the price which constitutes the storeowner’s profit , which he did not rule. Thus it is obvious that the argument of Rav Eliashev was only secondary.
We should note that Rav Eliashev added that one does not always have to pay the price charged by the storeowner whose object he damaged. If his price was higher than what is charged by other stores then one does not have to pay his higher price.
The Shumas Nezikin (page 61) rules that we should consider the prices of two other esrog stands in the vicinity and the amount one needs to pay is the amount charged by the storeowner who is neither the most expensive nor the cheapest. The rationale is based on the general method used by the halacha to assess the value of an object. This issue is pertinent in many situations.
The Shulchan Aruch (CM 103, 2) writes about this in the case of a person who borrowed money but only has goods with which to repay his loan. The Sema (103, 5) rules that we follow the opinion of those Rishonim who rule that we ask three experts, and we fix the value of the goods at the valuation of the middle opinion. The rationale for this is that this is the amount that is at least correct according to two of the three opinions. It is as if we consider each valuator as a member of beis din and just like in a beis din of three we follow the opinion of two out of three, so too with price we determine the price by the amount that is agreed to by two out of the three opinions.
Thus, if one store charges seventy dollars and one charges ninety and your store charges seventy-five dollars you would have to pay seventy-five dollars since two of the three opinions maintain that you owe at least seventy-five dollars and these two outweigh the one who maintains that you only owe seventy dollars. In case the other two stores charge higher prices than your store, you would not need to pay more than seventy-five dollars because it is as if your storeowner waived the additional amount that he was entitled to receive.
In conclusion: The ruling that the storeowner cited that he is only entitled to one third of the amount he charges is wrong. You really owed something in the vicinity of the amount he charged for the esrog. To determine the exact amount you would need to ask two other owners of stands in the vicinity how much they charged for this esrog and also determine if the storeowner saved anything because the esrog was damaged and not sold.
Next week we will B’ezras Hashem discuss your second question: Do you need to pay the stand owner the money that he waived based on ignorance of the correct halacha?
