Yeshivas Limud HaTorah hosted a lulav and esrog fair. “Best selection; best prices!” the signs announced. “A dozen sellers! Prices $60–$250 per set!”

Mr. Freilich’s esrogim were good quality; he did excellent business the first day. The next morning, as he was setting out his esrogim, he realized that the carton with his most mehudar, highest-quality esrogim was missing. Maybe the box got mixed up with one of the other sellers’ wares, he thought.

Numerous customers asked Mr. Freilich that day for his best esrogim, but he had to apologize, “They are missing.”

On Simchas Torah, a neighbor mentioned to Mr. Freilich that he had been at the home of one of the sellers, Mr. Weiss, over Sukkos, and saw a box of esrogim in the basement with Mr. Freilich’s name on it.

Mr. Freilich “visited” Mr. Weiss right after Yom Tov. When he mentioned the missing esrogim, Mr. Weiss shifted uneasily. “I believe that my box is in your basement,” Mr. Freilich finally said.

Mr. Weiss broke out in a cold sweat and stared at the floor for a minute.

“I admit it,” he finally said. “I took your esrogim; I’ll get them for you.”

Mr. Weiss went downstairs and brought up the missing box. “Here are your esrogim,” he said. “I am now returning them to you.”

Mr. Freilich stood there stupefied. “You’re returning them now?” he spluttered. “I can’t sell them anymore!”

“I apologize,” Mr. Weiss reiterated, “but I’m returning what I stole.”

“That’s not called returning,” Mr. Freilich ranted. “The esrogim are now almost worthless!”

“So what?” answered Mr. Weiss. “I’m giving back exactly what I took. The esrogim haven’t changed at all.”

“But the value is not the same!” Mr. Freilich said in exasperation. “There are 20 esrogim, each one worth at least $150 before Sukkos. You owe me $3,000!” He stormed out of the house.

A week later, Mr. Weiss received a summons to a din Torah before Rabbi Dayan.

After the beis din heard both sides, Rabbi Dayan ruled: “Mr. Weiss is obligated to pay Mr. Freilich the value of the esrogim before Sukkos, when he stole them.

“In truth, the Gemara (B.K. 96b) teaches that someone who stole chametz before Pesach and returned it after Pesach is exempt from payment. Although it is prohibited to benefit from the chametz after Pesach and it is worthless, the thief can still say, ‘Harei shelcha l’fanecha — Here is yours.’ This is called hezek she’eino nikar — damage that is not evident, since the item remains intact.”

“Why, then, should I have to pay?” asked Mr. Weiss. “Isn’t our esrog case similar to chametz?”

“Some authorities compare an esrog after Sukkos to chametz after Pesach,” replied Rabbi Dayan, “but the vast majority differentiate for a number of reasons. Pri Megadim (Mishbetzos Zahav 656:1) explains that although you returned the stolen object, you still caused a direct loss (garmi) and are therefore obligated to pay for having caused damage. Although regarding chametz, Chazal did not institute payment for having caused a loss, that is only because it is uncommon to leave chametz over Pesach, but they did require payment for other items.”

“What other differences are there?” asked Mr. Weiss.

“Pischei Teshuvah (C.M. 363:1) and many others explain that chametz after Pesach is considered non-evident damage, because the average person who sees the package of chametz does not realize that it is worthless,” continued Rabbi Dayan. “However, it is clear to everybody that esrogim after Sukkos have lost value and are almost worthless. Therefore, it is considered hezek nikar, damage that is noticeable.

“Some even suggest that an esrog after Sukkos is considered a totally different item,” added Rabbi Dayan, “since before Sukkos it is an item of mitzvah, whereas afterwards it’s just an ordinary fruit.

“In light of all this,” concluded Rabbi Dayan, “you are required to pay the $3,000 you stole and cannot exempt yourself by returning the esrogim.”