Hilchos Choshen Mishpat
Volume II : Number 11
Liability Of A Minor
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
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.
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
Feedback is appreciated! It can be sent email@example.com.
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
We hope you find this class informative and stimulating! If you do not see a subscription form to the left
of the screen, access the Advanced Learning Network to
subscribe to Business-Halacha.
For information on subscriptions, archives, and other Project Genesis
classes, send mail to firstname.lastname@example.org for an automated reply. For
subscription assistance, send mail to email@example.com.
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!