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Who is responsible to pay for damages caused by minors? By Dayan Yehoshua Grunwald
The owner of a retail store must be vigilant to avoid damage to his merchandise by potential customers. This is especially true with regards to damage caused by children. Not only are children more likely to break and damage merchandise, there also may not be any party the owner may hold accountable for the damage. Whereas in most situations, damages caused by an adult may be collected by the owner, Halacha exempts minors from paying for damages. How, then, can store owners protect themselves should such an incident occur?
The Gemara[1] states that damages related to a minor are malicious, since one who causes damage to a minor is responsible to pay, whereas, when a minor is the one causing damage to an adult – the minor is exempt.
Some Poskim[2] hold that when the minor becomes an adult, they should pay as a measure of Teshuva and to satisfy the Heavenly court (לצאת ידי שמים). Others[3] hold that it is unnecessary to pay fully, even to absolve oneself from the Heavenly court; rather, the now-adult should pay a mere portion of the loss as a Teshuva measure.
Some Poskim recommend that the parents, if they can afford it, pay immediately to absolve their child from this obligation. If, however, the child was below the age of Hinuch (around 5-6 years old), and certainly below the age of three, then the above-mentioned “Heavenly obligation” does not apply to the child.
The Complacent Parent
All of the above applies only to damages in which the parent had no involvement whatsoever. What if the parent plays a role in the damages?
The Poskim[4] consider a case in which a parent puts their child on a table, which directly causes the child to break an item lying on the table. In this case, numerous Poskim obligate the parent to pay in Bet Din, if we can ascertain that the damage was “Bari Hezeka” – certain to happen. When it wasn’t certain to happen, the Poskim classify it as a mere Gerama – causative damages, which cannot be collected in Bet Din, but are nevertheless a count in the Heavenly court, which one must satisfy on their own accord.
The situation in which a parent brings their child into a store, and the child damages merchandise, can be compared to the above case involving placing the child on the table. If it was certain that the child would cause damages upon being in the store, then the parent would be obligated – according to the aforementioned Poskim – to pay for the damages. However, if it wasn’t certain to happen, then, if the minor is below the age of Hinuch, the parent should still pay for any accidental damages, to absolve themselves from their own Heavenly obligation . If the child was above Hinuch age, the child (or parent on child’s behalf) should pay at least a portion of the damage to absolve themselves from the Heavenly court.
It follows, that a store owner usually has little to claim in Bet Din when a parent brought their child to the store and the child damaged merchandise. Nevertheless, if the parent can afford it, they are encouraged to pay. It would therefore behoove the store owner to be watchful of children brought to the store, scrupulously remind the parents to watch their children, and, as much as possible, keep merchandise out of children’s reach .
You Break It, You Take It
As a possible measure, the store owner may also post a sign stating that: “All those who enter these premises with children are only permitted to do so if they accept upon themselves the obligation of paying for any damages caused by the children that they brought with them”. A stipulation phrased in this manner may possibly obligate parents to pay for their child’s damages even in a Bet Din.
Accepting a Parent’s Payment
On a final note, if a parent in the above scenario willingly volunteers to pay for the cost of the damages caused by his or her child, the store owner may accept the payment under the assumption that the customer realizes that they are exempt, and are merely paying to absolve themselves of the Heavenly court, or out of a sense of Yosher – uprightness . In the case, however, that the merchant has good reason to believe that the parent is only paying because of a misunderstanding of the Halacha, then the store owner is obligated to present to the parent that Halachically he or she is exempt[5] .
Sources:
[1] ב”ק פ”ז ע”א
[2] משנה ברורה סי’ שמג סק”ח
[3] שו”ת שבות יעקב ח”א סי’ קעז
[4] ע’ פתחי חושן ח”ה פ”ה הערה פז, וספר משפט המזיק פי”ב סעיף מא
[5] ע’ ספר משיב בהלכה עמ’ לט הערה סד