A delivery of fruit and vegetables was made to the home of Family
Silberberg. Little Avremi (4) and Moishi (3) decided to sample the goods.
Avremi is a real monkey; he ate three bananas! Moishi creatively converted
the tomatoes into a puree. Mrs. Silberberg took a look at the delivered
goods and realised that they had been delivered to the wrong address. She
phoned the fruit store to collect the goods, but is not sure whether there
is any liability to pay for the “consumed” goods. Is her husband
liable to pay? Do the boys have to pay when they reach adulthood?
The Mishna in Bovo Kama (87a) informs us that a
minor is not responsible for any damage that he causes. The reason is that
he is not considered responsible for any of his actions. It therefore
follows that this exemption remains even when he reaches adulthood, as is
stated clearly in Shulchan Oruch, Choshen Mishpot (349:3) (but see
“Repenting for childhood sins” in this series, that it is advisable to
pay for the good of the child’s soul).
The Gemoro in Bovo Kamo (112a) discusses a case
where a father died, leaving a cow to his sons. The sons had the cow
slaughtered and ate the meat. They then discovered that this cow did not
belong to their late father. He had only borrowed it! The law is that they
are only required to pay for the benefit they derived, namely, the market
value of the equivalent amount of cheap meat. The Nesivos (232:5) adds
that if they had destroyed the cow, without deriving any benefit, they
would have been completely exempt from payment. 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). There is no liability to pay for such damage, as Tosafos
writes in Bovo Kamo (28b).
It would therefore appear that 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. Although
minors are exempt from paying for damage caused during childhood, as
stated above, it is nevertheless advisable for them – or their parents
– to pay, for the good of the child’s spiritual development. Do we
therefore say that there is no need to pay for the tomatoes, since they
incurred damage through a complete accident, but “atonement” payment
should be made for the benefit derived in consuming the bananas? Rebi
Akiva Eiger (Responsa, Vol. 1, No. 147) writes that when a minor consumes
another person’s food, this is considered destruction and not deriving
benefit. According to his opinion, neither Avremi nor his father would
have any moral liability to pay for the bananas he consumed.
However, the Sh’vus Ya’acov (Vol. 1, No. 177)
disagrees. He wishes to compare this case to that of an adult lending an
orphan money 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 – see Shulchan Oruch (335:15). A
child benefiting from another’s property is also the equivalent of such
a loan. Many challenge the validity of this comparison. They assert that
our Sages only required repayment of such a loan in the case of a person
feeding an orphan, but not if food is taken by a child who has parents who
care are for him.
We can therefore conclude that there is absolutely
no moral liability to pay for the destroyed tomatoes. To pay for the
consumed bananas would be going beyond the letter of the law.