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August 29, 2015 / 14 Elul, 5775
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Minor Seller

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A group of fifth-grade boys was playing ball in the park one afternoon. Yosef zoomed into the park on his rollerblades, with a broad smile on his face.

His friend, Eliyahu, approached him. “What’s up Yosef?” he asked. “Why are you in such a good mood?”

“My father bought me new rollerblades for my birthday,” Yosef answered. “It’s a top-rated model!”

“What are you doing with your old rollerblades?” Eliyahu asked. “They’re still in good condition.”

“I don’t know,” replied Yosef. “I put them away in my closet.”

“I’ll tell you what,” said Eliyahu. “I’ll pay you $40 for them.”

“Deal,” said Eliyahu. “It’s better than sitting in the closet. Come by tomorrow after school.”

The following day, Eliyahu went home with Yosef. He gave Yosef the $40 and took the old rollerblades.

A week later, Yosef’s father inquired about his old rollerblades. “I looked in the closet for your old rollerblades,” he said, “but couldn’t find them.”

“I sold them to Eliyahu last week for $40,” replied Yosef.

“I’m upset that you did that,” said his father. “I told your younger brother that I would give them to him. Anyway, you could have asked Eliyahu for more than $40.”

“I’m sorry,” said Yosef, “but what do you want me to do now?”

“Tell Eliyahu that you need the rollerblades back; that I don’t allow the sale,” said his father. “You had no right to sell them without asking me first!”

The next morning in school, Yosef told Eliyahu he wanted the rollerblades back. “But you already sold them to me,” argued Eliyahu. “You can’t retract.”

“My father insists that I get them back,” said Yosef. “He promised them to my younger brother and thinks that you didn’t pay enough.”

“Well, I’m not giving them back,” said Eliyahu. “I bought them fair and square! Anyway, they’re yours, not your father’s.”

As their tones rose, the rebbe came over. “What’s going on?” he asked.

“Yosef sold me his old rollerblades,” said Eliyahu, “and now he wants them back.”

“My father says that I shouldn’t have sold them without checking with him,” explained Yosef. “He wants them for my brother.”

“I heard that there is a special shiur today with Rabbi Dayan,” said the rebbe. “We can ask him after the shiur.”

“Oh, wow!” beamed Yosef. “That’s great!”

After the shiur, the rebbe introduced Yosef and Eliyahu to Rabbi Dayan. “The boys have a business halacha question for you,” the rebbe said.

“I sold my rollerblades to Eliyahu, but my father insists that he return them,” said Yosef. “Does Eliyahu have to give them back?”

“The sale of a minor [below bar mitzvah] who is supported by his father is subject to his approval,” said Rabbi Dayan. “Therefore, your father can annul the sale.”

“Why is that?” asked Eliyahu.

“Selling is a legal transaction that requires da’as, legal competence,” explained Rabbi Dayan. “Therefore, the Torah does not attribute legal significance to transactions initiated by minors, since they lack da’as. However, the Sages instituted that their transactions – with the exception of real estate – should be valid, so that a child should be able to obtain his needs.” (Gittin 59a; C.M. 235:1)

“From what age?” asked Yosef.

“From a minimum of six or seven, provided that the child has some sense of value and business,” replied Rabbi Dayan. “By age ten, it is assumed that almost all children have reached this stage, unless known otherwise.” (See SM”A 235:3)

“If so, what’s the problem?” asked Eliyahu. “Yosef is already ten!”

“Elsewhere, the Gemara [Kesubos 70a] qualifies that the Sages only instituted this when there is no guardian to look after the child’s welfare, but not if there is a guardian,” explained Rabbi Dayan. “In the case where there is a guardian to tend to the child’s needs, the child can only sell with the approval of his guardian. All the more so if the child has a father to look after him. His sale is subject to his father’s approval.” (C.M. 235:2; SM”A 235:18; Aruch Hashulchan 235:1,11)

“Furthermore, in many instances, gifts given to children are not legally theirs, but are considered as belonging to the father,” added Rabbi Dayan. [Rama 270:2; Aruch Hashulchan 270:4] “Therefore, Yosef’s father can annul the sale if he objects to it. Nonetheless, he should consider the educational value of training his child to uphold his word.”

“What about a child who’s bar mitzvah?” asked Yosef.

“Once the child is bar mitzvah, he acquires da’as and his transactions are binding by the Torah,” replied Rabbi Dayan. “He is no longer subject to his father’s approval. For real estate that he inherited, though, our Sages restricted a person’s ability to sell until twenty.” (C.M. 235:8-9)

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 subscribe@businesshalacha.com. 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 ask@businesshalacha.com.


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