Q: If a parent brings a child into a store and the child damages the merchandise, is the parent liable for the damage?
A: According to halacha, parents do not have traditional liability for their children’s actions. If, however, parents were negligent in supervising their children, contemporary poskim advance a number of reasons to possibly hold them accountable. In this post we will examine the prospect of viewing a child’s damage as the action of the parent. As we will see, this presumption is not without challenges.
1. The Tur writes ‘Just as it is forbidden to damage [another person’s possessions]… there is also an obligation to guard one’s possessions so they should not damage’. The prohibition applies also to indirectly causing damage(grama be’nizakin assur, Bava Basra 22b). However, although it is prohibited to indirectly cause damage, there is typically no financial liability for such damages- in general, one is obligated to pay only for damage that was a direct result of your actions. Determining whether a damage is considered direct or indirect is a complex and is subject to differing opinions. This post presents an approach based on the comments of the Rashba and a responsa of the Ma’sas Binyomin.
2. In the early 1600s Rabbi Binyomin Ashkenazi (Ma’sas Binyomin 27-28) wrote an important responsum about infringing on trade rights. In his discussion he clarifies how to define an action as direct, and writes ‘If he inflicts the damage himself or if it occurs immediately, he has a Torah obligation to pay’. According to Rabbi Ashkenazi, if an action immediately causes damage, then it is considered direct. However, if the damage does not occur immediately, it is considered indirect. (See Pischai Teshuva 386, 1)
3. Along these lines, the Talmud (Bava Kama 56b) and Shulchan Aruch (CM 394, 3) rule that a person who brings another person’s animal to a pile of grain is responsible for the animal’s consumption. The Rashb’a explains that since it is expected for the animal to eat, it is considered like he actually fed the grain to the animal. Apparently, the Ma’sas Binyomin considers the animal’s natural inclination to eat as both likely and immediate, and therefore this is considered a direct damage.
4. This seems to contradict the Talmud (Bava Kama 24b) and Shulchan Aruch (CM 395, 1) who rule that if one incites a dog to bite, he is not liable for the damage, since it is considered indirect. The Ma’sas Binyomin cites the Ro’sh who explains that the difference lies in the certainty of the damage. A dog, even when incited, usually does not bite. As the person’s action (of inciting the dog) will not certainly cause the damage, the person is not liable even if in fact the dog attacks. In contrast, animals are constantly eating. Therefore leading it to another’s food will certainly cause a loss, and the damage is thus considered a direct result of his actions. The divergent levels of certainty is the reason why inciting the dog to bite is considered an indirect damage, whereas positioning it next to food is considered direct.
5. Rabbi Eliyahu Dushnitzer in his work Nachlas Eliyahu applies this concept to the question of parental liability for a child’s damages. He writes that if a parent placed the child in a situation where he will certainly cause damage, it is comparable to placing an animal next to fodder. As we have learned, a person is liable for the inevitable damage that results from his actions. In the same way, a parent is liable for placing a child in a situation where he will certainly cause damage. (See Pischai Choshen, Nizikin 5, 87)
6. Rabbi Moshe Sternbuch (Teshuvos V’hanhagos 3, 477) points out the limitations of this comparison. As the Ma’sas Binyomin explained, the action of the animal can only be considered the direct action of the defendant if it meets strict criteria. The damage must be certain and immediate. Accordingly, this approach would only obligate a parent in a scenario where the child was sure to damage, i.e. an unsupervised toddler in a china store. However, it would fall short of holding a parent accountable for an older child who was left unsupervised. While it may be likely that the child will damage, it is neither certain nor immediate, and under the Masas Binyamin’s approach, there should be no parental liability. Subsequently, Rabbi Sternbuch offers a more expansive approach, which will be discussed in the next post.
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