A ten year old boy went to his neighborhood grocery store and purchased
two chocolate bars. The candy was purchased with money that he took from
his mother's purse, without her knowledge. When his parent's discovered
what had happened, they demanded that the grocer return the money, since
the sale was performed without their consent.
The grocer argues that even if the facts are as stated, since it is very
common for many parents to send even very young children to purchase food
and sweets for their families, how is he to know that, this time, the
child was not authorized to purchase the chocolate?! Therefore, the
grocer claims that he should not have to return the money.
Who is correct?
In our society, if a child purchases an item that parents commonly send
them to the store to purchase, the sale is Halachically effective even
though it was unauthorized.
This is true even if the child did not actually pay money for the item,
but told the grocer to put it on the parent's credit account.
Therefore, if parents want to prevent this from happening, they should
ensure that no money is left in a manner that a child may take it without
permission. Also, if they do send young children to the local grocer to
purchase certain food items, they should inform the grocer which items
their child is permitted to purchase. Another possibility would be to
inform the grocer that he should only give the child items that are on a
list that they will send with the child.
If the item purchased by the child is something that parents do not
commonly send their children to purchase, or if it was in a quantity not
commonly purchased by children, if the parents argue that they never
authorized the sale, the sale is void and the store owner must return the
money and accept the loss (if the item has already been consumed or lost).
There are many instances where we find that the Rabbis have decreed a
"Takanas HaShuk" (Ordinance of the Marketplace). In other words, although
there may be situations where technically a sale should be Halachically
void, in order that the marketplace be run efficiently and properly, and so
that people not refrain from engaging in commerce because of a fear of not
having all of the information available to them at the time of the purchase
(through no fault of their own), the Rabbis decreed that certain
transactions are effective anyway.
For example, if someone were to unknowingly purchase stolen goods, although
technically he would be obligated to return the item to the original owner
without compensation when he discovers that it was stolen (since the thief
clearly had no right to sell it to him), the Rabbis have decreed that such
a sale is effective and the owner must pay the purchaser the amount that he
paid for the item, and must then try to get his money back from the thief.
This is because of the above mentioned Takanas HaShuk, so that store
keepers do not have to be concerned that they may incur a loss because of
factors that they are unaware of, thus preventing smooth flow of commerce
in the marketplace. This Halacha is discussed in the Shulchan Oruch
(Choshen Mishpat 356:2).
Similarly, if a married woman were to make a purchase using her husband's
money without his knowledge, although technically the money may not belong
to her, the Rabbis have decreed that such a sale is effective, and the
husband is obligated to pay for it if it was made on credit, and has no
right to request the money back if it was made with cash. This Halacha is
discussed in the Shach (Choshen Mishpat 96:9) and in the Nesivos Mishpat in
his Chiddushim (11) there. The Nesivos points out that this is true even if
the husband derives no benefit at all from the purchase.
Technically speaking, the acquisition or the sale of a minor is
Halachically null and void. The only situation in which we find that it
would have validity would be the case of an orphan (R"L) above the age of
six with no father or mother or court appointed guardian. In this case, a
specific decree was made that his sales are effective, so that he should be
able to support himself, as is discussed in Choshen Mishpat 235:1-2. But if
the minor has a parent or guardian, technically, his acquisition would be
void, especially if it was made with stolen money.
However, since the common market practice today is to send children to the
local grocery for certain items needed in the home, the market has created
a situation where it is difficult for the grocer to engage in such
practices unless the consumer is willing to accept any risk involved.
Therefore, the Takanas HaShuk would also apply in this situation, similar
to the case of the wife's purchase with the husband's money. However, this
clearly only applies to items that children are commonly sent to the
grocery to purchase, and not for major purchases.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his
permission and approval.
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
We hope you find this class informative and stimulating! If you do not see a subscription form to the left
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!