Submitted by the Bais Hora’ah
A recent incident has set the art world abuzz. A painting was auctioned at Sotheby’s in London. As soon as the gavel came down, awarding the painting to the buyer who had bid $1.4 million for it, the canvas suddenly began to descend within the frame. Seconds later, thin strands of the painting were dangling from the bottom of the frame. The reclusive artist who painted the piece later revealed that he had installed a shredder in the bottom of the frame, though he did not disclose how he activated it to shred half the canvas at the exact moment the painting was sold.
Shredding half of the painting should have devalued it, but because this painting is now the first piece of art in history to be destroyed upon its sale, its value actually rose drastically after the artist’s prank.
Q: Our question is a theoretical one, since this case will not be adjudicated in beis din: Is the artist obligated to pay the buyer for having destroyed the painting? And would the halachah differ if a third party, not the artist, had pulled this prank?
A: The first aspect of this case is fairly straightforward. In order for this prank to be executed with such precise timing, the shredder must have been activated by remote control at the moment of the sale. Is damage set in motion remotely considered direct damage, or grama — indirect damage?
The answer is unequivocal: Activating a remote control is no different from shooting an arrow, which causes damage in a location other than the place where it was released. Just as we consider such damage to be a direct result of the shooter’s action, a person who activates a device via remote control would be liable for the resulting damage (see Mishpetei HaTorah, Bava Kamma 67, note 3, and Mishpat Hamazik 12:25).
The next factor to consider is who owned the painting when the shredder was activated. In both a direct sale and an auction, an agreement on the part of both parties to finalize a sale may be considered some level of kinyan, called “situmta” (Tur, Choshen Mishpat 201; Kesef Hakodashim, ibid.; and Chukas Mishpat, Mechirah, p. 269). Whether this is considered a final sale of the object or just an obligation to complete the transaction is dependent on the prevailing custom in the jurisdiction where the auction or sale took place.
In jurisdictions in which a winning bid is considered a final sale, the seller would be liable for damage he caused. In many jurisdictions, however, situmta is an agreement to complete the transaction. In such jurisdictions, the seller would not be required to compensate the buyer for the damage (and the buyer would not be required to pay for the object).
But what would happen if a third party damaged the painting, causing its value to rise? Would that third party be liable for the damage he caused, even if the value of the painting was not adversely affected?
A similar she’eilah has been discussed at length in the yeshivah world, based on a case considered by Harav Chaim Brisker (cited in Ohel Yeshayahu, Bava Kamma p. 478):
A person owned two identical rare stamps, the value of which we’ll set hypothetically at $500 each. Someone burned one of the two stamps and the owner brought him to a din Torah. The arsonist claimed that now that there was only one stamp of its kind left, its value had risen, and the owner had therefore not suffered any real loss as the result of his actions.
Some say that Rav Chaim Brisker ruled that if the value of the remaining stamp had risen sufficiently to replace the full loss — i.e., it is now worth $1,000 — then the arsonist would not bear any liability. But if the value had risen to replace only part of the full value of the burned stamp, the arsonist would be required to pay the full price of the burned stamp, because once he is a considered a mazik, he must make full restitution for the damage he caused.
Others say that Rav Chaim Brisker ruled that the arsonist owes the stamp owner the full value of the burned stamp regardless of the value of the remaining stamp, because a mazik is liable for the loss of the object he damaged, not for the loss to the total value of the owner’s assets (see Shu”t Ohr L’Tzion, Choshen Mishpat 11, who rules that the mazik is required to pay).
It would seem, however, that neither of these rulings would apply in our case, because the value of the painting — which still exists, albeit partially shredded — in fact rose, and therefore, the person who shredded it did not cause damage altogether (see Choshen Mishpat 403:1).