Payment for Car Damage

Hi, when I was riding my bike, I accidentally scraped a car. It wasn’t a new car, it was an old car that already had scratches on it. So do I still need to pay, or maybe a scratch on such a car isn’t really considered damage?

Thank you for your question.

This is a very practical day to day question, and so I would like to take the opportunity to discuss it is detail and the different cases that could arise.

Small scratches:

In a case like yours, where someone accidentally scratches another person’s car, like with his bike, etc., the halacha would depend on the type of damage and the type of car involved.

If the scratch is very small and insignificant, the kind that people generally do not bother fixing, then the damager is not liable to pay since such a type of scratch people normally do not repair.

However, every case must be evaluated individually since it would depend on the type of car we are speaking about. For example, if it is a brand-new car, even a small scratch may reduce its value, and the owners are also very particular about fixing even small scratches. In such a case, one would have to pay for the damage they did, if it is an older car, and people would not even bother to repair such a scratch, then one would not need to pay.

The question that one could ask is; Why does it depend on whether the owner would fix it or not? Shouldn’t we just say that since you damaged it pay up! And let the owner decide if he wants to fix it?

The source of this halacha is brought by the Shach in Choshen Mishpat 95:18 and 387:1. He explains a fundamental concept in the laws of damages as follows: A person does not pay for the damage, rather, his obligation is to repair the damage.

This is a very important yesod in dinei nezikin. The responsibility of the damager is to restore the item to its prior condition. Therefore, if this type of damage is not something that people normally repair, then there is no obligation, to pay.

Big damages:

It is important to note that we look at the damage in a general way, meaning this type of damage, would people repair or not? we do not look in a individual case. For example, if it is a type of damage that people fix and this particular owner is not planning on fixing it, one is still obligated to pay since it's something that one normally repairs, and so he has to pay for the repairs, and it’s the owner's choice to decide what he wants to do with the money.

Also, if the damage was so severe that the owner had to give it into the garage for repairs, and he now has to rent a car, nevertheless, the damager does not need to compensate the owner for the car rental.

Since such a type of compensation is called “sheves” loss entailed to a person who was injured due to the loss of income that he incurred during the time of his recovery. This is written in the Torah with regard to a person injuring another person (there are actually five forms of compensation one has to pay Nezek Tsar Ripuy Sheve U’boshet), with regard to damaging animals or item one only has to pay only Nezek, for damages, as explained above.

The source and explanation to this is found in Tosafot;

תוספות מסכת גיטין דף מב עמוד ב

ור"ח אומר דלא שייך שבת אלא באדם דשבתו לא הוי בכלל נזק דמשום שבת לא פחתי דמיו כל כך אבל שור פשיטא דשבתו בכלל נזק הוא דפחתי דמיו ומתחלה כשהוזק שמין אותו כמה דמיו פחותים לימכר.

Tosafos, Maseches Gittin 42b:

Rabbeinu Chananel says that the concept of sheves only applies to a person. For a person, the loss of work is not automatically included in the category of nezek, because the fact that he cannot work for some time does not reduce his actual market value so significantly.

However, by an ox it is obvious that its sheves is included in nezek. Why? Because when an ox is injured and cannot work, its value actually goes down. Since its ability to function is part of its worth, once it is damaged, we evaluate how much its market value decreased, and that reduction already includes the loss of work.

So we see from Tosafos that by a human being we separate between nezek and sheves, but by an animal the loss of work is automatically part of the damage itself, since its sale value is directly affected.

For further depth on this topic, see.

• The discussion between the Rambam and the Raavad in Hilchos To’en veNitan, Perek 5, Halacha 2.
 • The Shittah Mekubetzes on Bava Metzia 5a.
 • The Chazon Ish in Bava Kama, Siman 6, seif katan 3.

Wishing you well and much success.

1. Azamroh Lishmecho - 321
2. Shach, Choshen Mishpat 95:18
3. Shach, Choshen Mishpat 387:1
4. Tosafos, Gittin 42b
5. Rambam, Hilchos To’en veNitan 5:2
6. Raavad, Hasagos to Hilchos To’en veNitan 5:2
7. Shittah Mekubetzes, Bava Metzia 5a
8. Chazon Ish, Bava Kama 6:3