Hilchos Choshen Mishpat

Volume II : Number 11

Liability Of A Minor

Question:

A ten year old child borrowed a book from his neighborhood library. While he had it, his mother and other members of his family also read it. When it was due, the child was on the way to the library to return it, but happened to meet a group of his friends on the way. He decided to play for a while, and put the book down. When he finished playing, the book was no where to be found. The library administration is requesting that the parents pay for the lost book.

Is there a Halachic obligation on the parents or the child to pay for the book?

Answer:

In the above case, both the parents and the child would be Halachically exempt from paying for the lost book. However, it would be proper for the parents not to insist on their rights and to compensate the library.

There are certain similar cases in which the parents would be obligated to pay. These situations are discussed below.

Sources:

The Mishna in Bava Kamma (8:4), which is quoted as the Halacha in the Shulchan Oruch (Choshen Mishpat 424:8) states that a minor that damages someone's property has no obligation to pay for it, even B'Dinei Shomayim (In the heavenly court). However, our case is not exactly similar, since in our case the minor did not actively damage something, he was negligent in his obligation to protect it. Do we say that the parents or the child have the duties of a Shomer (Watchman) on the book, or not?

Many libraries will only issue cards and lend to minors if their parents sign for them, guaranteeing to compensate the library for any kind of loss that may be incurred through lending to their child. In this situation, the parents are clearly liable under all circumstances.

However, if the library lent the to child without any such commitment from the parent, as is the case in many "neighborhood" libraries, or in the case of borrowing books from a school library, the parents would have no responsibility for loss or damage in this case. Giving any item to a child to care for is considered Aveidah Midaas (financial suicide), as is stated in Bava Basra (87b). Therefore, anyone who entrusts anything to a minor has caused his own loss, if the minor was to lose it.

Because of the Halacha that giving a minor an item is Aveida Midaas, the Shulchan Oruch (Choshen Mishpat 261:4) states that if someone was to find such an item that had been entrusted to a minor, he would not be obligated to return it to the original owner. (See the Ketzos HaChoshen and the Nesivos Mishpat there S"K 1). However, this does not mean that a person is permitted to take it out of the minor's hands. Although it may have been irresponsible to entrust the item to a child, this does not mean that it is now ownerless for the public to take it. The Gemara (Bava Basra 88a) states that in this case, the person who uses the item without permission would be a Gazlan - a thief, just as anyone else who borrows an item without permission is a thief (Sho'el Shelo MiDaas).

Therefore, in the case of our question, although we may want to argue that the family members should be responsible for the book, since they did not have permission to read the book, practically speaking it should be assumed that the library lends with the realization that other family members will also read it, since this is the accepted practice. However, if this is true, why not argue that the adult family members are responsible as borrowers of the book once they pick it up to read, and they should not have sent it back to the library with a minor, and should be obligated to pay as borrowers, as is stated in the Shulchan Oruch (Choshen Mishpat 188)?

The answer to this is, since the librarians themselves gave it to the minor originally, despite the fact that if it would get lost on the way home he would not be obligated to pay, they have shown that the care that the minor could provide for the book is sufficient for them. He is therefore the only Shomer here, even if adult family members also read the book.

Feedback is appreciated! It can be sent toatendler@torah.org.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais 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.

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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!