Submitted by the Bais Hora’ah
Last week we discussed the case of an artist who partially shredded his painting at the moment it was sold at an auction for $1.4 million. We determined that because the value of the painting rose as a result of his actions, he would not be obligated to pay for damaging the painting.
This week we examine two follow-up questions.
Q: The value of the painting rose only after the news spread and the art world determined that it now occupies a unique place in art history. But when the painting was first shredded, no one knew that it would rise in value. Shouldn’t the artist be liable for the immediate loss in value at that moment?
A: At first glance, this point seems valid. Several Poskim write that if, as an example, someone used another person’s wood to create something with no value, because there is no consumer demand for it, he is considered a mazik for ruining the wood. If consumers later develop interest in this object and its value rises, he is still required to pay. Because when he initially changed the wood he was required to pay, the subsequent rise in value of the object he created does not absolve him of liability (see Chazon Ish, B.K. 14:5; Igros Moshe, C. M. vol. 1, 37; Marcheshes, vol. 3, 14; and Mishpat Hamazik, vol. 2, 1:8).
Upon deeper analysis, however, we cannot apply this ruling to the case of the shredded painting, because the painting never did drop in value. In the above case, when the mazik ruined the wood, there was no reason for its value to rise; only later did new consumer demand cause its rise in value. But the price of art is proportionate to its rarity, so the rise in price was guaranteed at the moment it was shredded; we merely had to wait until the news spread so that a new price could be established. Since the price of the painting never dropped, there is no basis to require the artist to pay.
Q: Given the halachah that a person who causes another person’s property to rise in value is entitled to remuneration for having improved that property (see C.M. 375), can the person who “damaged” the painting demand remuneration from the buyer for its rise in value?
A: If the mazik’s intention in shredding the painting was to increase its value, he could charge the new owner of the painting for the rise in value, just as one who plants in someone else’s fallow field is entitled to remuneration for its rise in value (ibid.). But the Shulchan Aruch differentiates between someone who plants a field that was supposed to be planted and a field that the owner meant to leave barren. If the field was supposed to be planted, the person who planted it is entitled to the amount a field owner would generally pay for this service. If the field was not meant to be planted, we determine the amount invested into planting the field (hotzaah) and the rise in value of the field (shevach), and award the person who planted it the lesser of the two amounts (ibid.).
It would seem that we can apply this ruling here as well. If the buyer bought the painting as an investment, hoping to resell it for a profit, and shredding it would, according to experts, increase its value, the person who shredded it may now charge the buyer for “improving” his painting. [It would be difficult to determine how much the owner would be willing to pay for such an action, so the two parties would have to negotiate a fair price for it.] But if the buyer bought the painting to enjoy as is, then the person who shredded it may charge only whatever payment one could expect for shredding a painting, which is likely negligible. Having ascertained, however, that the value rose precipitously because it was shredded, in most cases the buyer would be pleased with the turn of events, and even if it was not bought as an investment the artist would still be entitled to remuneration for his actions (see Chazon Ish, B.B. 2:3-4).
Clearly, however, if the person who shredded the painting did not intend to increase its value, but to damage it, he would not be entitled to any remuneration despite its rise in value (see Choshen Mishpat 364:4, and Mishpetei HaTorah, B.K. 1).