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Lech Lecho-Damaged a fender which was repaired by another person who also damaged the fender



I was careless in pulling out of my parking spot and dented the front fender of the car that was parked behind. When the owner of the car asked for payment, I requested that he send me a picture of the car. When I received the picture I noticed that there were no dents in the fender and the fender had been repainted. When I questioned the owner he told me that a week after my accident, his fender was damaged by a bus and the bus company fixed the entire fender. Do I owe him anything for my damage since there is nothing that needs fixing at this time?


In order to answer your question we must clarify the nature of the obligation to pay for damages. One approach is that when one damages he incurs a monetary obligation to pay for the loss that was suffered by his victim. In order to determine the amount that must be paid, we evaluate the object before and after the damages and the one who damaged must pay for the difference. There is no relationship between what he pays and any repair of the object he damaged. Another approach is that there is a relationship between what the one who damaged must pay and the actual repair of the damaged object.

In one situation the Gemara (BK 85A) connects the money one pays with the repair of a damage. When a person wounds another person, the Torah obligates the assailant to pay his victim’s medical expenses. The Gemara says the victim can decline the assailant’s offer to heal him even if the assailant is a doctor because the victim may be afraid of his assailant. The Gemara also justifies the victim’s rejection of various other offers by his assailant to have other doctors treat him. In addition, the Gemara says the victim must use the money he receives from his assailant to cover his medical expenses and he may not pocket the money and remain wounded.

Rav Moshe Feinstein (Dibros Moshe BK 57, Anaf 3) deduces from this discussion that the Gemara understands that the payment of the victim’s medical expenses is not a monetary obligation to pay for health damages but rather an obligation to restore the victim’s health. If it were purely a monetary obligation the assailant would have nothing to say about his victim’s subsequent treatment and the Gemara would not need to justify the victim’s refusals because he could simply reply that it was none of his assailant’s business.

The Rishonim and poskim discuss this issue in the context of property damage when the property that was damaged was a field. According to many Rishonim the Gemara (BM 5) discusses a situation where the owner of a field claimed that someone damaged his field by digging two holes in the ground. Many of these Rishonim (Ran, Ritva and others) understand that the field owner was making a monetary claim that the one who damaged must pay for the damages. However, the Ra’avad explains that the Rambam understood (and he agrees) that the field owner was not merely asking for payment for the damages but he was demanding that the one who damaged should restore his field by filling in the holes. This indicates that the damaged party has the right to demand that the one who damaged must actually repair the damages and not just pay for the cost of the repair. Very noteworthy is the opinion of the Shach (CM 95, 18) who rules that many Rishonim concur with the Ra’avad and that his approach is authoritative.

The Shach does not indicate clearly whether the requirement to actually fill the holes is the victim’s entire claim or it is an additional demand that the victim can make, that is to say, not only can the victim demand payment for filling the holes but he can also demand that the damager repair the holes he made. According to the first approach, the Shach views the requirement to pay for damages as a requirement to repair the damage and not as a monetary obligation. According to the second approach, the Shach views the obligation as a monetary obligation, but there is an additional obligation that if the victim so desires, the one who damaged must himself ensure that the repairs are done.

We can prove that the second approach is correct from the Shach’s ruling that if the field was subsequently damaged further, to the extent that it is no longer possible to repair, the first one who damaged must still pay for his damages and he cannot free himself from paying by claiming that his responsibility was only to repair and now there is nothing to repair. If the first approach is correct then the one who damaged could correctly claim that since there is nothing to repair he has nothing to pay. Therefore, even the Shach agrees that the essence of the obligation is to pay for the damages and the requirement to repair the damages is an additional responsibility.

We should mention that the Chiddushei Harim (Commentary to BM 14B) understood the Ra’avad according to the first approach because he writes that those who rule like the Ra’avad maintain that if the holes were filled by natural means the one who dug the holes has no liability. However, that does not seem to be the Shach’s understanding of the Ra’avad.

Additionally, many, including the Chazon Ish (BK 6, 3), disagree with the Shach entirely and maintain that the one who damaged is never required to repair the damage.

The poskim who disagree with the Shach and maintain that the victim cannot force the one who damaged to repair the damage, are divided on the issue if the one who damaged has the right to insist on repairing the damage and not paying for the damage. The Tumim (95, 7) and the Nesivos (95, 6), who agrees with the Tumim, maintain that if the one who damaged wishes to repair the damage he has that right and the victim cannot demand payment.

However, the Chazon Ish (BK 6, 3) proves from the Gemara that we cited earlier that one cannot maintain that the victim’s entire claim is to have the damage repaired because the Gemara needed to give a special reason why in the case of health expenses the victim cannot demand monetary payment. This implies that ordinarily the victim can demand monetary compensation and the one who damaged cannot insist on repairing the damage in lieu of payment.

The Chazon Ish points out that there is huge difference between the Tumim and himself in case the cost of repair changed between the time the damage took place and the time when it was paid for. According to the Chazon Ish’s approach, price fluctuation is immaterial because the amount the one who damaged must pay is the depreciation at the time of the damage. However, according to the Tumim, the one who damaged will have to pay the cost of repair at the time he pays for it. The Chazon Ish (BK 8, 14) proves from many sources that this is untenable and the amount that the one who damaged must pay is the depreciation at the time when the damage took place.

We note that many others agree with the Chazon Ish that the amount one must pay for damages is fixed by the cost at the time of the damage and the Chazon Yechezkel (BK 3, 4) proves this from a Tosefta.

We note that the Meluei Mishpot and the Mishpat Yehonoson in their commentaries to the Nesivos and Tumim respectively, point out that even though the Chazon Ish ascribes to the Tumin and Nesivos the position that the amount the one who damaged must pay is the value at the time of payment and then disproves their opinion, it is possible that the Tumim and Nesivos agree with the Chazon Ish on this point and merely maintain that the one who damaged has the right to repair the damage rather than pay for it.

This bears on your question because if one understands the Tumim and Nesivos as the Chazon Ish did, then you would not need to pay because there is nothing to fix. However, if one rules like the Chazon Ish, Chazon Yechezkel and many others or understands the Tumim and Nesivos not like the Chazon Ish, then the fact that it was repaired by someone else does not free you from paying the cost of the damages at the time of the damage. Additionally, we recall that the Dibbros Moshe also understood that one must pay for damages and not repair them. Therefore, he too agrees that the fact that the dent was repaired has no bearing on your liability.

In conclusion: You should pay the value of the damage and cannot free yourself from paying because the damage was repaired since the only one we saw that would surely free you is the Chidushei Harim according to the Ra’avad. On the other hand, many others maintain you are liable including the Rishonim like the Ran and Ritva who disagree with the Ra’avad entirely, as well as the Shach in his understanding of the Ra’avad, the Chazon Ish and Rav Moshe Feinstein and many others.



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