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The Lost Earring PART II

For part I clcik here

Q: A woman borrowed a pair of earrings from her friend, and lost one earing. The value of the pair of earrings was $1,000. The remaining earring can only be sold for $300. How much does she pay?

In a previous post we explored how much a regular mazik, tortfeaser, must pay. We explained that each earring is valued at half of the resale value of the pair. Therefore, if the pair was worth $1000, a regular mazik must only pay $500 for damaging one earring, even though the remaining earring can now only be sold for $300. The devaluation of the remaining earring is viewed as an indirect damage, which  a mazik is not liable for. We will now explore if this remains true if the earrings were borrowed and the borrower became a shomer, a guardian. Is there a difference between a guardian and a regular mazik regarding this type of indirect damage? Does the borrower pay only $500 for the lost earring, or the full $700 that the owner lost?

A central theme of our discussion is the difference between the liabilities of a regular mazik as opposed to a guardian.  A mazik is only responsible for damage caused by his direct action. If the damage is indirect, he is not liable. For example, a mazik is responsible if he actually destroyed the earring. However, if he merely left it in a place where it may get damaged, he is not responsible for the damage. Likewise, he is not responsible for the devaluation caused to the earring  that he did not damage, as that is an indirect loss.

A guardian is different. The very concept of guardianship is accepting responsibility to watch an item and protect it from harm. Negligence is not a direct damage. It is just allowing the damage to happen. Nonetheless, this indirect damage is exactly what the guardian accepted responsibility for. For this reason, a guardian is generally liable for indirect damages (see Maharit 2, CM 110, Divrei Geonim 15,17). In our case, one earring was lost and the remaining earring depreciated as a result. Is this form of indirect damage also included in the responsibility of a guardian?

There is an interesting dispute on this point between the Sha’ch (CM 363,7) and Marshal. A guardian was entrusted with bread and Pesach is approaching. If he does not sell the bread to a non-Jew it will become Chometz Sheavar Olav Hapesach and will be prohibited to eat. It will then be worthless. What happens if the guardian did not sell the bread? Must he pay the owner the value of the bread or can he simply return the worthless bread (harei shelach lefonecha)? The Maharshal holds that the guardian must pay the original value of the bread. The Shach, however, disagrees. He maintains the guardian could return the bread as is and does not have to pay for the depreciation in value.

The position of the Maharshal is easily understood. As we have learned, a guardian is responsible even for indirect damages. Accordingly, the bread devaluated due to the negligence of the guardian because he did not sell it before Pesach. Therefore, he must repay the depreciation. The opinion of the Shach, however, needs explanation. Doesn’t the Shach agree that a guardian is responsible for indirect damages? Why then does the Shach maintain that the bread can be returned as is?

Apparently, the Shach differentiates between different types of indirect damages. The classic form of indirect damage is a physical damage to the item. For example, if the guardian did not watch the bread and it was stolen. The actual bread is missing. Because the guardian accepted responsibility to watch the bread, he must replace it. This form of indirect damage is called ‘grama’. The Shach agrees that a guardian is responsible for such indirect damage. However, when the guardian did not sell the bread over Pesach, nothing physically happened to the bread. The bread is still here. The problem is intangible. This is a lesser form of damage called ‘hezek sheeayno nikar’, an indiscernible damage. Even a direct mazik/tortfeaser is often not liable for such damage. The Shach maintains that a guardian as well would not be liable, and therefore he may simply return the worthless bread.

The Erech Shai (CM 344,2) suggests that the dispute between the Maharshal and Shach should apply to our case about the missing earring as well.  The remaining earring has not been physically damaged. It only depreciated in value. According to the Maharshal a guardian is responsible for all indirect damages, even depreciation. As such, the guardian must pay the full $700 loss caused to the owner of the earrings. However, according to the Shach, a guardian is not responsible for an indiscernible damage. As such, if the item is still here it is sufficient to return it. Since the remaining earring is returned to the owner, the guardian is not liable for its indiscernible deprecation, and must only pay the $500 value of the earring that was lost.

The Divrei Geonim (96,58), however, argues with the Erech Shai and limits the scope of the Shach’s disagreement with the Maharshal. Their discussion was about bread left over Pesach. Bread left over Pesach is definitely an indescribable damage. There is no way to tell the difference between bread that was in the possession of a Jew or non-Jew over Pesach. The difference is completely unnoticeable and abstract. However, the depreciation of a lone earring from when it was part of a pair is readily noticeable. While the earring has not been destroyed, anyone can notice that the earring as is, is not usable. Therefore, this cannot be considered an indiscernible damage (hezek shaino nikar). As such, even the Shach would agree that a guardian is responsible for this type of indirect damage. The Divrei Geonim cites the opinions of the Toafos Re’aim, Shoel Umashiv, and others who concur with this point.  

In conclusion, a guardian is different than a mazik. A guardian is responsible for indirect damages, whereas a mazik is not. Therefore, according to many opinions the guardian is responsible for the depreciation of the second earring caused by his negligence. As such, in our case the borrower must not only pay the $500 for the earring that was lost, but an additional $200 for the depreciation of the remaining earring.