Destroying (Un)Abandonded Property

Question

Itzik had his eye on the ancient car parked at the end of
the street that was covered by layers of dust. He told his friends that the
owner had abandoned the car and there was therefore nothing wrong in "having
fun". He forced open the lock, allowing him and his pals to – turn the car
into a wreck! A week later, the owner showed up. He had just spent five
months in South America, caring for his elderly, sick mother. Who has to pay
for the damage? Is Itzik solely responsible, since it was on the strength of
his declaration that the other boys damaged what they assumed to be ownerless
property, or is each one liable for the damage he personally caused?


Answer

Firstly, one should be aware that if Itzik and his friends
are below bar mitzvah age, they cannot be held financially liable for
the damage. Our Sages teach us (Bovo Kamo 82a) that even though an
adult does have to pay compensation if he harms a minor or his property, the
minor would be exempt from payment for such damage inflicted on an adult.
However, Beis Din would take steps to suitably admonish and chastise
the offending child (see Choshen Mishpot 349:5 and Pischei Teshuva,
Note 2 ad loco). Assuming he has reached the age of
majority, we are now
confronted with the question of whether he is responsible for the results of
his giving misleading information. We do find that a professional
money-changer who mistakenly approved a worthless coin is liable for the
resultant loss sustained by his client (Bovo Kamo 99b). By the same
principle, since Itzik’s misleading information turned his friends into a
wrecking crew, he should be liable for all the resultant damage to the car.

However, there is a distinction between the two cases,
says Rav Spitz (Mishptei HaTorah, Bovo Kamo, No.63). There is a
very good reason why a professional moneychanger is liable for his mistaken
appraisal of a coin. Since he is known to be an expert in coins, people rely
on his advice. If he asserts that this coin is good, then I will accept this
information and act accordingly. By the same token, when such a moneychanger
gives his appraisal of a coin, he does so knowing that any error on his part
will cost him dearly. The same cannot be said in our case. Did Itzik’s
friends join him in dismantling the car since they were confident in his
expertise in the owner’s financial affairs? It would be more likely to assume
that they agreed with his logic, based on the age of the car and its heavy
dusty coating. Furthermore, he never told them that they could rely on his
declaration to wreck the car (as opposed to the money-changer, who knew that
this coin would be accepted on the strength of his word). We can therefore
conclude that each boy is liable for the damage he personally caused. This
could be difficult to assess. Does each boy remember what he actually did?
Does he know in what state the dashboard was before he ripped out all the
fittings? The boys may argue that the burden of proof is on the claimant (hamotzi
mechaveiro ollov hora’ayoh).

Accordingly, as long as the owner is unable to prove what
damage each individual caused, they are all exempt from payment. We would
answer them as follows. True, the car owner will not be able to extract money
from you in Beis Din, since he lacks the necessary proof. But you have
transgressed the Torah prohibition of, "Do not steal," which includes causing
a loss through inflicting damage. As long as you are not sure that you have
fully compensated your victim, this prohibition hangs over your head (sofek
d’Oraiso l’chumro).
The preferred option is therefore that the bill for
the total damage be divided equally amongst the boys (see Choshen Mishpot
365:2). Additionally, each one should say to the others that if he has
paid more than his fair share, he does not mind.