Vov Cheshvan 5774
In the last issue, we related a story about a man who loaned his personal Tefillin to a friend, and they were subsequently lost. Explaining that the Tefillin had been written by a Tzaddik, the lender demanded a high sum as reimbursement. The borrower protested, saying that he was only obligated to pay the value of an average mehudar'dike pair of Tefillin. What is the Halachah?
The Gemara (Bava Metziah 29b) states that if one finds a lost pair of Tefillin, he may evaluate their worth and proceed to use them, and when the owner comes to claim his Tefillin, he can pay him the value. From this we see that Tefillin are to be appraised based on their beauty and hiddur as appears to the eye, without taking into consideration the fact that they may have been written by a unique individual. The borrower would thus only be obligated to pay the worth of an average pair of mehudar'dike Tefillin. He could say, "If I would have known their true value, I would have been more careful. Perhaps I would not even have borrowed them!"
The above is true if the borrower was not aware of the unique quality of the Tefillin. However, what is the Halachah if he knew prior to borrowing them that they were written by someone special? Would he then have to pay a much higher amount if they were lost?
A case is brought by the Poskim (see Mishne Lamelech, Hilchos Maase Hakorbonos, 16:7. Ba'er Heiteiv, Orach Chaim, 656:4) concerning a person who stole a mehudar'dike Esrog from his friend and then caused the Esrog to become possul. Perhaps the thief was only obligated to pay the price of an ordinary Esrog, for he could claim: "If not for the Mitzvah involved, an Esrog would not be worth much at all. All I am obligated to do is grant you the ability to perform the Mitzvah, and for that purpose a regular Esrog is sufficient!"
Most Poskim, however, contend that the thief must pay the full value of the Esrog. But that would only be in a case where the Esrog or Tefillin were stolen. If they were borrowed and then lost, as in our case, everyone would agree that he only needs to pay the average amount, even if he was aware of its high value.
(Shu"t Avnei Zikaron Vol. 2 #69)