Question: Does a child who breaks a window need to pay the owner when he reaches bar mitzvah?
Short Answer: No, he does not need to pay, according to many poskim, including the Shulchan Aruch. However, in many circumstances, it is “lifnim mi’shuras ha’din” (equitable and above the letter of the law) for him to pay when he gets older.
Explanation:
I. The Source
The Mishnah (Bava Kama 87a) states that if a “cheireish, shoteh, v’katan” (a mute/an insane person/a child) damages, they are not liable for the damage. Similarly, a slave and a woman are not liable for damages. However, the Mishnah adds that the slave and woman must pay after the slave is freed or the woman divorced.
The Mishnah implies that a child does not need to pay for damages done as a child, even after he grows up. Indeed, this is codified in the Rambam (Hilchos Choveil U’Mazik 4:20), who adds that the child need not pay damages even when he gets older because he caused damage when he was not a “ben dei’ah” (a person with intelligence).
II. The Other View
The Gemara (Bava Kama 98b) discusses “dina d’garmei,” liability for indirect damages, and the case of burning a loan agreement. In the middle of that discussion, the Gemara recounts how Rafram forced Rav Ashi to pay damages under the doctrine of dina d’garmei. Rashi explains the episode. Rav Ashi, as a child, burned the lender’s loan agreement, causing him damage. Rafram forced Rav Ashi to pay full damages, including the loan amount as listed in the loan agreement.
Rashi appears to be holding that Rav Ashi was liable for damages based on a tort he performed as a child under the age of bar mitzvah. This contradicts the view of the Rambam. Indeed, the Hagahos HaAshri (Bava Kama 8:9) cites Rashi as holding that a child, when he gets older, is liable for damage done as a child. The Hagahos HaAshri adds a proof to this opinion, from Bava Kama (39b) that an apitropus (guardian ad litem) must pay for damage done by his minor’s ox, but he may be repaid when the minor gets older.
III. How to Pasken
The Shulchan Aruch (Choshen Mishpat 424:8) paskens like the Rambam, that a child is exempt even after he gets older. The Vilna Gaon (Biurei HaGra, ibid) notes the opinion of Rashi. But why isn’t Rashi’s proof from the Gemara dispositive? In other words, why doesn’t the Shulchan Aruch follow the opinion of Rashi?
First, the Vilna Gaon himself notes that Rashi in a different Gemara (K’subos 86a) has a different interpretation of the story with Rav Ashi. Rashi explains there that Rav Ashi and Rafram disagreed about the halachah of dina d’garmei, but not that an actual episode happened with Rav Ashi.
Second, the Maharam Padawa (90), cited in Mishnas Yehoshua (Chinuch HaBanim, p. 161), notes that perhaps Rav Ashi was a “child” when he damaged, but “child” means above the age of bar mitzvah. He proves this from the pasuk in MiKeitz (37:7) that “ha’yeled einenu” – that Yosef was 17 but still called a “child.”
Third, the Bach (Shu”t 82), cited in Binas HaMishpat (siman 130), explains that the Gemara simply means that when Rav Ashi got older, he got scolded and “hit” by Rafram for his actions as a child. Surely, though, no money was paid. Similarly, the Taz (Orach Chayim 343:2) explains that Rav Ashi was urged by Rafram to perform t’shuvah.
Moreover, the Pilpula Charifta (on the Rosh 8, n. 7) dismisses the Hagahos HaAshri’s proof from the Gemara about the guardian ad litem. The child must repay the guardian in that example because his ox gored, and this is a necessary protection because of “tikun ha’olam.” Here, however, where the child himself gores, no such enactment is necessary, as the parent can just educate his child not to act in such manner.
IV. Practically Speaking
The sefer Chinuch Yisrael (2:6:3) cites the Nachal Yitzchak (Rav Yitzchak Elchanan Spektor zt”l) who rules that a child should pay the damages to be yotzei his obligation “biydei shamayim” to pay. This is based on the idea that a non-Jewish child must pay damages if he performs a tort, so surely must a Jewish child.
Finally, the Mishnah B’rurah (Orach Chayim 343:9) codifies the Taz, that “lifnim mi’shuras ha’din,” the child should pay for damages from torts performed as a child. This appears to be the ruling of the Igros Moshe (Yoreh Dei’ah 2:10), as well.
V. Collecting from the Father
Can you at least make the father pay?
The sefer VaYeishev Moshe (cited in Chinuch Yisrael, ibid) rules that if a father is warned that his child is too young to attend shul, and then he damages in shul, the father must pay.
Similarly, Rav Moshe Sternbuch shlita (T’shuvos V’Hanhagos 3:477) holds that a father who is negligent in watching his child, such as bringing him to a place where he will likely cause damage, the father is liable. See also T’shuvos V’Hanhagos (4:317 and 5:385).
The Chashukei Chemed (Bava Kama 23a) writes that a father is not liable for giving his son a ball to play with and the child does damage with the ball. Since the ball was meant to be played with, we don’t view the ball as an item of the father that should have been watched better.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
