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).
Sources: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.
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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!