Q: If a parent brings a child into a store and the child damages the merchandise, is the parent liable for the damage?
Discussion
In the previous post we discussed if the damage of a reckless child can be viewed as the action of the parent (Adom Hamazik). In this post we will explore the possibility of holding parents responsible for their children’s damages under the concept of Mamon Hamazik.
The two primary catagories of torts in halachah are ‘Adom Ha’mazik’ and ‘Mamon Ha’mazik’. Adom Hamazik is when a person directly causes damage. In the previous article we discussed the limits of this approach and how a child’s actions cannot be imputed to the parent to create an Adom Hazmazik obligation. The second type of tort is Mamon Ha’mazik, when one’s possessions cause damage. The classic exampleis if one’s ox or dog damages another person or property. While Adom Ha’mazik only obligates a person to pay for damages that are a result of his direct action, Mamon Ha’mazik expands this liability to damage caused by his possessions.
With this in mind, if a parent allows a child wander around a china boutique and he eventually breaks an item, the damage is too far removed to be considered the action of the parent (Adom Ha’mazik). Nevertheless, it is clear that if one brings a bull into a china shop, he would be liable for the resulting damage. The question at hand is whether a parents’ responsibility to watch the child creates the same financial obligations as the responsibility to watch one’s pets.
This question brings to light the age old argument as to why a person is liable for the damage of his possessions (see R’ Shimon Shkop Bava Kama 1, Dibros Moshe BK 1, R’ N. Tropp BK, E’ven Haazel Nizkai Mamon 1,1). Is it a consequence for neglecting the obligation to prevent one’s possessions from causing damage? Or is it because possessions are considered an extension of the person, and it is like the owner himself damaged? Whether or not a child can be considered Mamon Ha’mazik may depend on this question. A parent does not own his children. Being that a child is not the parents’ property, if the responsibility is based on ownership, then a parent will not be responsible the child’s damages. However, if the responsibility stems from neglecting the obligation to watch, it should follow that a parent could be held responsible for damages inflicted by a child under his or her care.
The Rambam begins the laws of Nizkai Mamon by stating that a person is obligated to pay for the damages of any living creature “under his dominion (reshuso)… for his money (mamono) has damaged”. Commentators dispute the intent of this wording. Does the responsibility stem from the animal being his possession, as mentioned at the end of the Rambam’s statement (see Ohr Sameiach), or is it because the animal is under his dominion and he has the responsibility to watch it, as the first words of the Rambam indicate (E’ven Haazel)?
In the fourth chapter of Nizkai Mamon the Rambam rules that a guardian who assumes responsibility to watch an animal is responsible for its damages as well. Rabbi Isser Zalman Meltzer and the Chazon Ish both observe that if a guardian, who does not actually own the animal, is liable, than it is clear that absolute ownership is not needed to be responsible under Nizkai Mamon. Rabbi Meltzer understands that dominion and responsibility are the key factors in the Rambam’s opening statement, not actual monetary ownership. Additionally, Rabbi Meltzer infers from a comment of the Jerusalem Talmud that a custodian appointed by Bais Din is responsible for the damages of the estate’s livestock.
Based on this approach, Rabbi Moshe Sternbuch (Teshuvos VeHanhagos 3,477) suggests that parents could be held liable if they were negligent in watching their children. He argues, just as a guardian who brings a pet into a store must supervise the animal to prevent it from damaging, parents who bring children into a store must do the same. Likewise, just as the guardian is responsible for the animal’s damage although he does not own it, parents can be held liable for their children’s damage resulting from a lack of supervision. Rabbi Sternbuch’s argument is even more compelling if there is a clear policy posted in the store stating that parents may only bring children into the store if they assume responsibility for damages. A final note, Rabbi Sternbuch’s extension of the concept of guardianship from animals to children is rather novel and the actual outcome of a Din Torah may not reflect his view.
Rabbi Micha Cohn is a member of the Bais Horaah of Rav Shmuel Meir Katz of Lakewood, and the author of a popular medical halacha email. He received Semicha from Rav Rabbi Aharon Felder zt”l, Rosh Vaad Harabonim of Philadelphia, and Rabbi Shraga Feivel Zimmerman , Av Bais Din of Gateshead England. He can be reached at mcohen@businesshalacha.com