Dudi was assistant coach of his community’s Junior League basketball team, comprised of fifth and sixth graders. Among the players was his younger brother, Dovy, who had just turned eleven.
Twice a week Dudi would meet with the boys after school in the park for practice. One afternoon, when practice was over, Dudi said to his brother: “I have to run to Minchah and then go learn. Could you please take the ball home?”
“No problem,” said Dovy. “I’m going to play a little longer, and then go on the swings for a few minutes.”
“You won’t forget the ball?” asked Dudi. “It belongs to my chevrusa; I borrowed it for the afternoon.”
“I’ll make sure to remember,” said Dovy. “I’m already eleven!”
Dudi headed to Minchah. Dovy shot a few more baskets and then went over to the swings. He put the ball down on the side of the playground. While he was on the swing, some friends came to the park with their skateboards; Dovy ran over to join them. Half an hour later, as it grew dark, they all headed home.
But boys will be boys, and the basketball remained at the swings…
Late that night, Dudi returned home. He looked in his room for the ball, but didn’t see it.
“Did Dovy bring the ball home?” he asked his parents.
“I don’t recall seeing it,” replied his father.
“It wasn’t smart to ask Dovy to take the ball home,” his mother commented. “You know children his age are not reliable.”
“Dovy assured me he wouldn’t forget,” said Dudi.
In the morning, Dudi asked Dovy about the basketball. “Oops,” said Dovy. “I ended up meeting my friends and left the ball near the swings!”
“You assured me you wouldn’t forget!” said Dudi. “That was irresponsible of you!”
Dudi stopped at the park on his way to school, but the ball was gone.
When Dudi got home that afternoon, he walked straight to Dovy’s room. “The ball’s gone! You’re going to have to buy my chevrusa another one from your allowance money!”
“I was just trying to help you,” said Dovy. “You could have taken the ball with you! I’m not paying.”
Dudi asked his parents what to do. “This is an interesting question,” said his father. “How about we all go and ask Rabbi Dayan?”
“You mean the one who writes in The Jewish Press?!” asked Dovy. “The column we read at the Shabbos table?”
“Yes,” said his father.
The three went over to Rabbi Dayan. Dudi related what had happened. “Who is liable for the basketball?” asked the boys’ father, “Dudi, Dovy, both or neither?”
“Dudi is liable for the basketball to his friend, who loaned it to him” answered Rabbi Dayan. “Dovy is not liable, though, even after he becomes bar mitzvah.”
“Why is that?” asked Dudi.
“A child under bar mitzvah is considered unreliable to entrust something to,” explained Rabbi Dayan. “Therefore, Dudi was negligent in entrusting his friend’s ball to a minor, even if it is someone from his own household, such as his younger brother.” (C.M. 291:21)
“And why isn’t Dovy also liable to me for his negligence in leaving the ball in the park?” asked Dudi.
“A child does not accept legal liability of guardianship,” replied Rabbi Dayan. “By choosing to place the ball in the hands of someone who is liable to lose it, you displayed a lack of concern for it and a willful risk of loss.” (See C.M. 188:2; Pischei Choshen, Pikadon 1:17)
“Do I have to pay when I become bar mitzvah, though?” asked Dovy. “I remember I once broke something, and was told we should pay.”
“A child who damages or steals, though no legally liable when he is a minor, carries a moral responsibility to pay when he becomes bar mitzvah,” replied Rabbi Dayan. (C.M. 349:3,5; Rama O.C. 343:1) “However, in this case, you do not even have a moral obligation, since Dudi displayed recklessness in entrusting the ball with you him.”
Rabbi Dayan then turned to the boys’ father. “Dovy does not owe anything,” he said. “However, if you feel he should pay partially, as an educational measure to teach him responsibility for property, that is your prerogative as an educating parent.”
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
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