Question: Must a tortfeasor pay damages for an item that only has sentimental value but does not have resale value?
Short Answer: According to many poskim, the tortfeasor would not be liable for the sentimental value of an object. However, some poskim would require the tortfeasor to pay such damages if the destroyed item was a tangible item that had a use.
Explanation:
I. The Case of Collateral
The Shulchan Aruch (Choshen Mishpat 72:30) cites a case where Reuven borrowed money from Shimon and gave Shimon collateral. Shimon subsequently gave the collateral to Levi, and the collateral was accidentally destroyed in Levi’s possession. Reuven claims the collateral was worth four zuzim, but Shimon responds that it was only worth three zuzim. The Shulchan Aruch rules that in order to avoid liability for the full four zuzim, Shimon may swear that it was only worth three zuzim and that he no longer has the collateral in his hands.
The Bach (cited in the Shach 72:128) rules that Shimon swears that he was not negligent with the collateral, because if Shimon was negligent, he would be liable for all four zuzim simply because it was worth four zuzim to Reuven.
The Shach (ibid) disagrees. Shimon would not be liable for the full four zuzim simply because it was worth such to Reuven. Rather, Shimon is only liable for the collateral’s objective worth.
Simply put, the Bach and the Shach disagree whether a watchman pays tort damages based on the objective or subjective worth of the destroyed object.
II. The N’sivos HaMishpat
The N’sivos HaMishpat (Choshen Mishpat 148:1) likewise weighs into this question. The Shulchan Aruch discusses a case where a landowner owns land surrounded by fields owned by other people. The landowner has previously purchased a path through the filed of one of the other people in order to get to his field, but he has now “lost” (i.e., forgotten) where the path is located. The landowner needs to purchase a new path.
The N’sivos notes that even if the four surrounding owners all purchased their fields from the same one original owner, the middle landowner has no claim against the original owner of the surrounding fields, as the path is only worth something to the middle landowner, not to any other person. Thus, even though the original landowner of the surrounding fields technically destroyed the middle landowner’s path, there are no damages here, as the path has no “resale value” except to the middle landowner. It is clear from the N’sivos that tort damages are based on the objective value of the destroyed object, not the subjective value to the owner.
The N’sivos proves this idea from a handful of sources in the Gemara. The Gemara (Bava Kama 89a) holds that witnesses who falsely (i.e., are eidim zomemim) testify that a woman already received a k’subah must pay her the “tovas hana’ah” of the k’subah. Tovas hana’ah is defined as the amount that she could have sold the rights to the k’subah to another person, who only would have collected if the woman’s husband died first. If she died first, the purchaser gets nothing, as her husband inherits her k’subah money. The Gemara then notes that the false witnesses are only liable because the woman herself (as opposed to her husband) keeps the amount she receives for selling her tovas hana’ah. Had the husband kept the money, the witnesses are not liable, as they did not cause the woman damages, because it is not worth anything to her. The N’sivos proves from here that even though the woman claims the tovas hana’ah is worth something to her, since she makes no money off its sale, it is worthless.
The N’sivos likewise proves this idea from the Gemara (K’subos 30b), which discusses kam lei bi’d’rabah minei. Tosafos explains that the Gemara views food that can be regurgitated as worthless. The N’sivos asks why the food is worthless, can’t the person re-eat it? He answers that since it has no sale value, as no one would purchase already swallowed food, the item is worthless even though it has value to the eater.
III. Key Distinctions
The Minchas Pri (Rav Yeshaya Rottenberg, 1:114) was asked whether someone who accidentally destroys the eyeglasses of his friend needs to pay damages, as the glasses have no sale value. According to the N’sivos, perhaps the tortfeasor is not liable.
However, the Minchas Pri makes a key distinction. By the case of the swallowed food and the lost path, the item is fundamentally worthless. Thus, the tortfeasor is not liable. By the eyeglasses, on the other hand, there is certainly worth to the eyeglasses, just for an external practical reason (i.e., wrong prescription) they have no sale value. Thus, a tortfeasor would be liable for damaging someone’s eyeglasses. The Minchas Pri notes that this answers the K’hilas Yaakov’s question why Rashi (Gittin 53a) holds that a kohen is liable for intentionally being “mefageil” someone’s korban. Even though there is no sale value to your personal kodshei kodashim, that is only because there is no true “ownership” over the animal, an external point, and thus the kohen is liable because of the fundamental worth of the animal.
The Pis’chei Choshen (10:21, n.44) likewise distinguishes the swallowed food and lost path cases. In those cases, the items have no worth under any circumstances. An item, however, with subjective value, even if not normally sold, has a use and therefore has value.
Likewise, the Business Halacha Institute has an online article in which they cite Rav Shlomo Zalman Auerbach as distinguishing the case of the path because it is an “intangible right.” In other words, because “it is not a physical item but an abstract right, its entire worth is based on the existence of people who would actually purchase it. However, a tangible item, like a shirt or pair of glasses, is considered valuable even if there are no people who would buy it.” (See https://businesshalacha.com/en/materials/articles/47.)
IV. Practically Speaking
The Pis’chei Choshen (ibid) cites numerous Acharonim who follow the ruling of the N’sivos, that a tortfeasor is only liable for damages if the destroyed item has resale value, and that damages are evaluated based on objective, not subjective, value.
For example, the Divrei Geonim discusses a case where a tortfeasor destroys someone’s chidushei Torah and rules that the tortfeasor was not liable. Since the chidushim were not great, and were not worth anything to the world, the tortfeasor did not cause damages, even though the chidushim were worth much to the owner. Similarly, the Orchos HaMishpat rules that a tortfeasor is not liable for damaging the picture of a person’s father. Even though the picture has sentimental value to the owner, the son, it does not have sale value.
Finally, a similar question is raised by the Pis’chei Choshen, who cites the Sho’eil U’Meishiv, regarding whether a tortfeasor is liable for damages to an esrog, which only has worth due to the mitzvah.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
