Review of the Case
Last week, we began to discuss how this author resolved the following situation. One Sunday at a Torah Academy of Bergen County softball practice, a student (“batter”) picked up a baseball bat as he went to hit during batting practice. The owner of the bat (“bat owner”) immediately instructed “batter” not to take the bat, since it was an expensive bat whose purchase price was eighty dollars. “Batter” asked if he could use the bat, whereupon “bat owner” stated clearly and unequivocally that if “batter” were to break the bat, he would have to pay “bat owner” eighty dollars. “Batter” agreed to the condition (point of clarification for those not familiar with baseball – non-metal bats break occasionally during normal usage).
Before each pitch during the batting practice, “bat owner” repeated his stipulation of “you must pay me eighty dollars if you break the bat,” and “batter” expressed his consent. All was going smoothly until “batter” swung and broke the bat. The bat cost seventy-five dollars to replace.
“Batter” and “bat owner” agreed about the facts, but “batter” argued that he did not have to pay eighty dollars as stipulated. He noted that when “bat owner” purchased the baseball bat, it came with a promise of a one-time replacement of the bat if it broke during normal usage. Prior to the incident described above, someone else borrowed the bat, it broke, and the company replaced the bat. “Batter” argued that the eighty-dollar charge should be shared by him and the person who broke the bat the first time.
I responded that the first borrower bore no responsibility, since his breaking of the bat did not cause a loss. His situation may be compared to that of one who dug a Bor (pit) that is less than ten Tephachim (approximately forty inches) deep before another came and added to the Bor, making it ten Tephachim deep. If an animal fell in and died from the fall, only the one who completed the ten Tephachim is responsible to pay for the loss of the animal, since a Bor that is less than ten Tephachim deep is not capable of causing an animal to die of a fall within it (Bava Kama 51a and Shulchan Aruch Choshen Mishpat chapter 410). Similarly, only the second person to break the bat, not the first, caused the monetary loss.
Damages versus Replacement Value
Last week, we concluded that “batter” must compensate “bat owner” for the broken bat, despite the fact that it is a case of Meitah Machmat Melachah and despite the fact that “batter” did not make a Kinyan Suddar to seal his commitment to pay in case he broke the bat. However, it is not clear how much he must pay, despite his agreement to pay eighty dollars in case he broke the bat.
When one damages something, he is obligated to pay in accordance with the damage he caused but is not obligated to pay replacement cost. Only if the item he damaged does not have a market value must he pay replacement cost. For example, if one rendered an automobile inoperable, then one does not pay replacement cost of the car; rather, one pays the value the automobile had at the time it was damaged. However, if one broke someone’s eyeglasses, one would most likely have to pay replacement cost, since there is no market for used eyeglasses of a specific prescription (see Rav Yonatan Blass’s essay in Techumin 13:388-406 in which he deals with this issue at length). We should note that the creation of internet marketing sites such as eBay has greatly expanded the marketability of a wide variety of used items.
A used item is almost always worth less than it would be if it were brand new. Thus, Halachah demands that “batter” pay the value the bat had at the time he broke it, not the amount it would cost to purchase a brand new bat (assuming there is a market for used high-quality bats). Thus, it seems that “batter” did not do eighty dollars’ worth of damage. Accordingly, we must explore the validity of “batter’s” conditional agreement to pay eighty dollars in light of the Halachot of Asmachta.
Asmachta refers to a party’s agreement to pay a penalty, which exceeds the damage he causes, in case he does not perform a specific task. The Mishnah (Bava Batra 10:5) presents the following situation:
Someone paid a part of his loan and sought an extension of the loan. The borrower gave the original promissory note to a third party and instructed him that if he (the borrower) does not pay the loan by the specified time, the third party may present the original promissory note to the lender, enabling the latter to collect the entire loan, despite the fact that part of the loan was paid. Although Rabi Yose validates this agreement and would instruct the third party to hand the note to the lender, the Halachah (Shulchan Aruch Choshen Mishpat 207:12) follows the opinion of Rabi Yehudah, who invalidates such an agreement.
The Gemara (Bava Batra 168a) explains that Rabi Yehudah and Rabi Yose disagree whether an “Asmachta” is a valid condition or not. Rashi (ad. loc. s.v. Asmachta) explains that Asmachta is a case in which one makes a condition in order to convince someone to do something with the promise that the former will do something in the future. He thinks, when he makes the condition, that he will be able to meet the condition, but when it comes time to do so, it is beyond his ability to meet the condition. Rashi (Sanhedrin 24b s.v. Kol Ki Hai Gavna) explains that Rabi Yehudah regards such an agreement as invalid, since the person never had the intention to pay the large amount he promised in case of default.
Limitation on Asmachta
One could possibly invalidate “batter’s” agreement to pay replacement cost instead of the actual monetary loss caused, since he agreed to pay the larger amount in order to obtain consent to use the bat, and therefore his agreement constituted Asmachta. However, Halachah does not regard a situation in which one pays only slightly more than the actual damage as Asmachta. Thus, we must refine our previously stated definition of Asmachta as referring only to cases in which the penalty fee is disproportionately high relative to the damage done (and not simply when the penalty exceeds the damage).
Two classic situations illustrate this principle. In the times of the Mishnah, a standard clause in a sharecropper’s contract would state, “Im Ovir VeLo A’avid Ashaleim BeMeitvah,” “If I do not work the field, I will compensate you generously” (Bava Metzia 9:3). This means the sharecropper agrees to pay the landowner based on a high-end estimate of what the field would have produced had he worked the field. The Beit Meir (cited in Pitchei Teshuvah Even HaEzer 50:9) explains that since only a small exaggeration is stipulated, it does not constitute Asmachta. In such a situation, we do not assume that the one making the agreement had no intention to fulfill it.
This distinction is apparent from the Rama (C.M. 207:13) as well. He explains that while the condition of “Im Ovir VeLo A’avid Ashaleim BeMeitva” does not constitute Asmachta, it is considered Asmachta if the sharecropper stipulates, “If I do not work the field, I will pay you one thousand Zuz.”
The second classic example is the traditional Ashkenazic practice, recorded and endorsed by the Rama (E.H. 50:6) to stipulate penalties when making Tena’im, engagement contracts, which call for penalties if either side breaks the engagement. Tosafot (Bava Metzia 66a s.v. UMinyumi; cited as authoritative by Beit Shmuel 50:14) explain that the payment does not exceed the damage (i.e., is not Asmachta) because the payment is construed as Demei Boshet, compensation for the embarrassment caused by one’s engagement’s being called off. Recall that Halachah calls for compensation for serious embarrassment caused to others (Bava Kama 83b). Beit Shmuel (ibid.) adds that even if there is no such great embarrassment caused by the breakup, the money paid is nonetheless sufficiently similar to Demei Boshet that the obligation is not considered to be Asmachta. The Beit Meir (ibid.) explains, “This is similar to the Im Ovir VeLo A’avid Ashaleim BeMeitva agreement, which is not considered to be an exaggeration; so too, here, if one obligates himself only somewhat more than exact Demei Boshet, it is comparable to the sharecropper’s commitment to pay Meitva (a commitment to pay a generous amount, which one cannot say one does not intend to pay).”
I consulted Rav Mordechai Willig to voice his opinion if agreeing to pay replacement cost instead of paying for damage is an exaggeration or analogous to Meitva. He ruled that it is comparable to Meitva, and thus “batter’s” obligation to pay replacement cost is legitimate and not an Asmachta.
Eighty or Seventy-Five Dollars
Somewhat surprisingly, however, Rav Willig ruled that “batter” is obligated to pay only seventy-five dollars instead of eighty dollars as agreed, since the actual replacement cost was only seventy-five dollars. Rav Willig argued that since it is obvious that “bat owner’s” intention was to recover the replacement cost for the bat and not specifically eighty dollars, he is entitled to only seventy-five dollars and not the eighty he stipulated.
One may question Rav Willig’s ruling based on the following case recorded by the Gemara (Kiddushin 49b): A certain individual sold his property with the intention to move to Eretz Yisrael. However, he did not specifically condition the sale upon his successful move to Eretz Yisrael. When, afterwards, he was unable to move to Eretz Yisrael, he was not entitled to demand the right to repurchase the house, even though he sold the house with the intention to move to Eretz Yisrael. The reason for this, states the Gemara, is that Devarim SheBeLeiv Einam Devarim, unarticulated thoughts carry no Halachic significance. It would appear from the Gemara’s ruling that we should consider only “bat owner’s” words, not his thoughts, and therefore award him eighty dollars as he specifically stipulated.
Tosafot (ad. loc. s.v. Devarim SheBeLeiv Einam Devarim), howver, clarify that there are exceptional situations in which the parties’ intentions are so clear that we follow those intentions. Tosafot state that in those situations, “We assess that this was his intention.” In our case, Rav Willig felt that “bat owner’s” intention was obvious and assessed that his intention was merely to recover replacement cost.
Although this matter may seem trivial to some, and they may wonder why so much effort was expended to resolve a matter of relatively little money, this attitude is not shared by the Torah. The Gemara (Sanhedrin 8a) teaches us to treat a dispute involving a small amount of money as seriously as we do a case involving a large sum of money. Moreover, the Gemara (Shabbat 10a) teaches that one who makes the effort to properly adjudicate a monetary dispute is considered to be a partner in Creation. No wonder this small-scale dispute merited the attention of Rav Mordechai Willig, a leading Halachic authority.