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Terumo-Sofer Damaged the Tefillin Shel Yad of his customer




Someone gave me his tefillin to check and repair, if necessary. While I was repairing a letter of the tefillin shel yad I wasn’t careful enough and accidentally made the letter posul. Since one cannot write a letter of tefillin out of order and this letter is near the beginning of the first parsha, these parshiyos are a total loss. When I informed the owner of the tefillin of what occurred, he demanded that I pay him the cost of brand new parshiyos written by his sofer-both for the shel yad and also the shel rosh. The reason he asked to be paid for new parshiyos of the shel rosh is because some opinions maintain that one needs to write the parshiyos of the shel yad before the shel rosh and therefore, he does not want to use the shel rosh either because his shel rosh will have been written before the new shel yad. I have three questions. First, do I have to pay the cost of new parshiyos since his tefillin are six years old? Second, do I need to pay what his sofer charges or can I pay the price of other sofrim (scribes)? Third, since many people are not careful to buy parshiyos in which the shel yad was written before the shel rosh, perhaps I don’t owe anything for his shel rosh?


Before we answer your questions we must clarify what your status was at the time of the damage and how we view your action from a halachic standpoint. The Mishna (BM 80B) writes that all craftsmen have the status of a shomer sochor (a paid watchman) since (according to Rav Yehuda, whose opinion is authoritative) the object they are working on is situated on their property in order to enable them to earn money. Therefore, since the object you returned was damaged while it was in your possession, one reason you are liable is because you were a shomer sochor who was not careful enough to prevent it from being damaged during the time it was on your property.

Additionally, since your action damaged the parshiyos you are also liable as an ordinary mazik, just like any other person is liable if he damages parshiyos. Even though you did not intend to damage, you are liable based on the rule that odom mu’ad le’olom-man is always liable for his damaging actions that are not beyond his control.

In either case, the amount you have to pay is the loss in value of the parshiyos. There is a basic dispute concerning valuation between the Nesivos (148, 1) and most poskim, including the Chazon Ish (BK 6, 3).

The Nesivos maintains that we always value an object at its sale value. Therefore, one does not owe anything if he damages an object that cannot be sold, like prescription eyeglasses. Following this opinion, the amount you need to pay is the amount that your customer could have gotten if he had tried to sell his six-year old parshiyos, since that was their value prior to your damage.

However, most poskim maintain, like the Chazon Ish, that one must pay for damaging even an object that has objective (not sentimental) value even if only to its owner and even if it cannot be sold. Therefore, according to this opinion, halachically the amount you have to pay is the value that the parshiyos had to your customer. Even though the market price of the parshiyos was perhaps only half of what they cost brand new, since for your customer they were almost as good as new since parshiyos that are properly cared for last a lifetime, you have to pay almost as much as the parshiyos cost if they are brand new. The amount you can deduct from the value of brand new parshiyos is the amount that a person who had these parshiyos would have paid to exchange them for brand new parshiyos, which is very little. We should also note that it is very likely that you will be paying more than your customer originally paid for the parshiyos since damages are valued at present value, which is probably higher than what your customer paid six years ago.

Your second question was whether you need to pay what his sofer charges. Since the determinant is the value of the parshiyos, it does not depend on what his sofer charges but the actual value of the parshiyos. Therefore, if similar quality parshiyos are available at a cheaper price, you only need to pay the lower price.

In order to answer your third question it is necessary to clarify the issue. The Ramo (OC 32, 1) writes that it is preferable (lechatchilo) that the parshiyos of the shel yad be written before the parshiyos of the shel rosh, since that is the order in which the mitzvah is presented by the Torah. The Ramo’s source is just one opinion (Ri Alexandri) of a Rishon that is cited by the Beis Yosef, but has no source in the Gemoro or nor any other citation by any of the major codifiers of Jewish law. The Beis Yosef himself does not cite this opinion in the SA, which indicates that he did not feel it is significant.

He certainly does not maintain – and no one else does – that the parshiyos will not be kosher. It is just a preference that they should be written in this manner, according to an opinion that is mentioned by the Ramo and not the SA. Moreover, others, including the Ari, maintain the opposite, namely, that it is preferable to write the parshiyos of the shel rosh first. In fact, the Beis Shlomo (res. YD 1, 163) writes that in his time all the sofrim wrote in accordance with the Ari.

Since most people, when they purchase tefillin don’t even inquire if the sofer wrote the shel yad first or not, your customer cannot claim that the value of his tefillin declined because his new parshiyos will be ones whose shel rosh was written first. Moreover, people who sell tefillin do not charge anything less when they just sell a shel yad, even though the shel yad will have been written after the shel rosh. Since we have seen that one must only pay for loss of value you definitely do not have to pay anything for his shel rosh since its value has not declined at all.

We note that even if the value of his shel rosh had gone down, according to many poskim you would still not be liable for the loss in value of the shel rosh. The reason is because you did not directly damage his shel rosh. You damaged his shel yad and the damage to his shel rosh was only a secondary consequence since it is only due to the damage done to the shel yad that the value of the shel rosh decreased. This question is an instance of a general question that comes up when one damages only one member of a set, but the value of the remaining member is less than half of the total original value like, for example, if a cleaner damaged the pants of a suit but the jacket was not damaged but its value declined since the owner no longer had a suit.

We mentioned at the outset that there are two possible grounds on which you can be liable: as a shomer and as a mazik. This is important for this discussion. One reason that many poskim rule that no compensation is required for the secondary loss is that, with respect to this item, the damage is not discernible, which is known as hezek she’eino nikar. The Gemoro (Gittin 53) rules that one is not liable if he accidentally damages in a manner that is not discernible.

In your case nothing happened to the shel rosh. It is only that perhaps its value dropped due to halachically unnoticeable considerations. Therefore, following these poskim, there is an additional reason why you are not liable as a mazik for the shel rosh.

However, as we mentioned at the outset, you have the status of a shomeir as well and there are opinions (e.g. Maharshal cited by the Shach 363, 7) that a shomeir is liable for non-discernible damages. According to these opinions had there been a loss of value for your customer, you are liable.

However, many including the Shach (363, 7) maintain that even a shomeir is not liable for accidental non-discernible damage. Moreover, even in the heavenly court (dinei shomayim) many, including the Chasam Sofer (Gittin 53A) maintain that one is not liable for accidental, non-discernible damages. In your particular case, since there is no decline in value, the discussion is not really relevant and you are certainly not liable.

In conclusion: You must pay close to the retail cost of similar quality new parshiyos for his shel yad, but need not pay anything for the shel rosh.




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