The Little Monkey Who Ate Bananas
A delivery of fruit and vegetables was made to the home of Family Silberberg. Little Avremi (age 4) and Moishi (age 3) decided to sample the goods. Avremi is a real monkey; he ate three bananas! Moishi creatively converted the tomatoes into a puree. Worse still, when Mrs. Silberberg took a look at the delivered goods she realized that they had been delivered to the wrong address. She phoned the fruit store to advise them to collect the goods, but is not sure whether there is any liability to pay for the consumed goods. If the children have money of their own are they liable to pay? Is her husband liable to pay? Do the boys have to pay when they reach adulthood?
The Gemoro (Bovo Kama, 112a) discusses a case in which a father passed away, leaving a cow to his sons. The sons had the cow slaughtered and ate the meat. They then discovered that this cow did not actually belong to their late father. He had only borrowed it!
The law is that the sons must pay the cow’s owner for the cow that they slaughtered and ate.
However, the reason that they must pay is not because they damaged another’s property. The sons were under the reasonable impression that this cow was part of their late father’s estate. Their resultant destruction of another person’s cow is therefore deemed causing damage through circumstances beyond their control (mazik b’oness) for which there is no liability to pay (see Tosafos, (Bovo Kamo (28b).
Nonetheless, quite apart from the damage that they did, they also enjoyed a good meal on someone else’s account! They must therefore pay the owner the value of the benefit derived from the meat.
(There is a difference in the evaluation of liability between paying for damage done and paying for benefit derived. Damages are evaluated as the value of the object damaged, which in our case would be the full value of the live cow. Benefit derived, however, is usually considerably less, because it is evaluated as how much the person who benefitted would be willing to pay for this benefit, which in this case is assumed to be the cheapest rate that one could get hold of a similar meaty meal.)
The Nesivos Hamishpat (232:5) therefore points out that had the sons destroyed the cow, without deriving any benefit, they would have been completely exempt from payment.
To return to our story of the tomatoes and the bananas, it would therefore appear that even if an adult had accidentally eaten and damaged another person’s food under similar circumstances, he would be exempt from paying for the damage and would only have to pay for the benefit derived from eating the food. So there would be no compensation for the squashed tomatoes, but whoever ate the bananas thinking that they were his would have to pay for the benefit derived.
In fact, there is an additional reason to exempt the boys in our case.
The Mishna in Bovo Kama (87a) informs us that a minor is not responsible for any damage that he causes. The reason for this is that a young child is not considered to have a sufficiently developed mindset to make him responsible for any of his actions. It therefore follows that even when he reaches adulthood, he will remain exempt from any damages that he caused in his childhood, and indeed so rules the Shulchan Aruch, (Choshen Mishpot, 349:3, 424:8)
As for the parents, according to the Halachah a parent bears no financial liability for damage done by his children.
So Moishi, who crushed the tomatoes, is exempt from liability for damage that he caused to the tomatoes, even if he had known that they didn’t belong to him, because he is a minor.
But what about Avremi? He didn’t just cause damage, he actually benefitted from the bananas that he ate. Perhaps he is liable to pay at least for the benefit derived?
Shvus Yaakov (Vol. 1, No. 177) understands that there is no reason why a minor should not have to pay for benefit that he derives from others. He is exempt from damages that he causes because he is considered to have acted without intent, but if he benefits from another he would have to pay because with regard to this kind of liability intent if not a factor at all.
Shvus Yaakov’s source for this ruling is the case (Shulchan Aruch 335:15) of an adult lending money to an orphan to buy food, with the intention of collecting the money when the child reaches adulthood and has money of his own. Our Sages gave the lender the right to reclaim the loan. The reason for this, says the Shvus Yaakov, is because a minor who benefits from another is obliged to pay for that benefit.
In fact, though, the Shulchan Aruch itself quotes other opinions regarding the orphan who borrowed money. Some say that only if the child is an orphan and needs the loan to survive is there an obligation to return a loan that was lent to him, but otherwise one who loans a minor cannot reclaim the money even when the child grows up.
In that case it would appear that the fact that a minor derives benefit from another’s property is not actually grounds for obliging him to pay for the benefit.
To sum up, then, Moishi, who created the tomato puree, would be exempt from paying for the damage that he caused, but whether Avremi must pay for the benefit derived from the bananas appears to be a matter of debate.
One final point. Although a minor need not pay for damage that he caused even when he subsequently grows up, there are sources that indicate that there is a chiyuv latzeis yedei shomayim – a “moral” obligation (alternatively, a requirement lifnim mishuras hadin – to go beyond the letter of the law) to make amends to the damaged party when he has grown up (see Shvus Yaakov ibid, Mishneh Berurah, 343:9)
This was written by Rabbi Yoel Yosef Moore Shlit”a and is being reprinted with his permission. To see more of his articles or for any questions you can email to: firstname.lastname@example.org