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קטן פגיעתן רעה

Moshe was excited about visiting his old town. His family had moved from Monsey when he was eight years old, and now that he was seventeen, it was his first trip back in nine years. The first place Moshe visited was the old Seforim (Jewish book) store. He had loved that place when he was a kid. The owner recognized Moshe right away and was shocked by how much he’d grown.

“By the way,” the store owner said to Moshe, “the last time you were here, I’m not sure if you remember, but you were playing wildly with your friend Shimmy. That day, you broke an expensive candelabra worth $1,200. I didn’t ask you or your family to pay for it then, because you were only a child. But now that you’re grown up, I would like the $1,200 please.”

Moshe remembered, and was stunned. He thought that the broken candelabra had been forgotten and done with. He had felt bad back when he was a child, but had gotten over it... but now his stomach started to churn. He called his father and told him the story. His father couldn’t imagine that his son should have to pay for such a thing that happened when he was a child. So the father called their Rabbi to find out what the halacha is in this situation.

Sources[1] Gemara Bava Kama 87a

[2] Gemara Bava Kama 98b

[3] Rashi, ibid.

[4] Haga’os HaRosh: Bava Kama 8:9

[5] Rambam Hilchos Chovel U’mazik 4:20

[6] Bach Orach Chaim 343

[7] Taz Orach Chaim 343:2

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ӹ Are children liable for damages they cause?

ӹ If not, are their parents or guardians liable for the damages?

ӹ If neither are liable, do the children become liable later when they reach the age of bar mitzvah?

Questions to Consider

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Gemara Bava Kama 87a [1]

A deaf-mute, a mentally deficient person, and a minor – meeting them is bad. If one damages them, he is liable, and if they damage others, they are exempt. The slave and a (married) woman – meeting them is bad. If one damages them, he is liable, and if they damage others, they are exempt, but they pay after time (meaning after the woman gets divorced she becomes obligated to pay it).

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Gemara Bava Kama 98b [2]

Rashi, ibid. [3]

Ameimar said, “One who rules liability (i.e. that one is required to pay) in a case of Dina D’Garmi, we collect the value of a full debt; one who doesn’t rule liability in a case of Dina D’Garmi, we collect from the value of paper. There was a case and Rafram forced Rav Ashi to pay in full. (Dina D’Garmi refers to a cause of damage that was not completely direct but is more direct than a standard case of Grama, indirect damage. For example, the case being referenced here would be if someone burned a document of debt belonging to someone else. That is not a completely direct damage because the direct value of the document is not the same as the value of the debt it contains. But it is not wholly indirect either).

Rafram forced Rav Ashi – who had burned a friend’s document of debt when he was a child.

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Haga’os HaRosh: Bava Kama 8:9 [4]

However, a minor is obligated to pay when he grows up. And Rashi said the same thing in chapter HaGozel Eitzim, where Rafram held Rav Ashi liable for when he burned someone’s document of debt in his childhood and made him pay in full. This is also implied in chapter Shor She’Nagach Arba, where Rav Ashi the son of Rabbi Chanina would appoint caretakers over the property of orphans so that they could pay when they would grow up.

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A deaf-mute, a mentally deficient person, and a minor – meeting them is bad. One who damages them is liable and they are exempt when they damage others. Even though the deaf-mute later becomes able to hear or speak, the mentally deficient person gets better, or the minor grows up, they are exempt from paying because at the time they caused the damage they were not legally considered people with proper mental faculties.

Rambam Hilchos Chovel U’mazik 4:20 [5]

חרש שוטה וקטן פגיעתן רעה החובל בהן חייב והן שחבלו באחרים פטורין. אע"פ שנתפתח החרש ונשתפה השוטה והגדיל הקטן אינם חייבין לשלם שבשעה

שחבלו בהן לא היו בני דעת:

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Bach Orach Chaim 343 [6]

...And this is what led Rashi to explain that when [Rafram] forced [Rav Ashi to pay,] it was that he [Rav Ashi] had done the damage as a child – implying that without this “forcing,” he could not collect from his property, implying that [Rav Ashi] was technically exempt. This also helps make sense of the Rambam’s statement that it is proper to “hit” (a euphemism for “force”) minors, etc., to which the Maggid Mishneh explained that he could not find a source for it. But based on what we wrote, it’s clear that this is why Rafram forced him.

The rule we learn is that if a minor stole or damaged, he is exempt from paying even when he grows up and there was no decree from Chazal to pay – unlike the Or Zarua (who our Haga’os HaRosh above was quoting). Also, for sins that are between man and G-d, the minor does not get punished after he grows up. And about him I say the passuk says, “It is not good for a soul to have no mental faculties.” Meaning, even though a sin committed by a minor is considered as if it was done without any mental faculties being involved, it is not good for the soul because it draws impurity to him because of the evil act committed. Therefore it is a good idea for him to repent on his own when he grows up for everything he did, whether between himself and other people, or between himself and G-d. (And repenting for sins between himself and other people includes making monetary restitution.)

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Taz Orach Chaim 343:2 [7]

Nevertheless, it is good for him to accept upon himself (some way to repent). It seems to me that the words of Rashi in Bava Kama 98 about one who burned a friend’s document of debt. Because it says there was a case and Rafram forced Rav Ashi to pay in full and Rashi says that the case was that Rav Ashi burned a friend’s document of debt when he was a child. And we can infer that of course Rashi’s point was [that Rafram wanted] to save Rav Ashi from this matter (meaning being punished by heaven for it) that he bad burned someone’s document of debt when he was a minor.

And if so, why did he (Rafram) force him to pay? It is an explicit Mishnah that meeting a minor is bad because he is exempt when he damages – of course he is exempt if all he damaged was money. The Or Zarua learned from this that the minor is obligated to pay when he grows up. And he brings a further proof from a case in Bava Kama 39 (that a caretaker was set up over the orphans’ property).

But my father-in-law (referring to the Bach) wrote that we don’t hold like this Or Zarua... And it seems to be that Rav Ashi was certainly exempt according to the letter of the law. Rather, Rafram “forced” him with words (meaning convinced him) so go beyond the letter of the law as we find in the end of chapter Ha’Umnin, where Rav obligated Rabbah Bar Bar Channah to pay his workers who were negligent and damaged his barrel. And Rabbah asked, “Is this really the law?” (Rhetorically, meaning he knew that it wasn’t.) And Rav replied, “Yes, because it says, ‘in order to go in the path of the good and keep the way of the righteous.’” So too Rafram did the same for Rav Ashi. And heaven forbid that we say that Rav Ashi needed to be forced. Rather, he “forced” him with words, as we find in Perek HaMadir that the word “forcing” can mean convincing with words. And Rafram’s intention was that Rav Ashi go beyond the letter of the law and therefore “forced” him with words to do this (to pay in full).

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DISC L A I M ER:The views and opinions presented in this sourcesheet should not be taken as halachah l’maaseh.

Before applying these halachos to real-life situations, one must consult with a competent halachic authority.

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CONCLUSION