BS”D

 

Question

I had an issue with my neighbor. As a result, my neighbor decided to get even with me. He told his eleven year old son to throw a stone to break my window, which his son did. Boruch Hashem no one was hurt but I had to replace the window. Can I demand that anyone pay for the damage?

Answer

As far as the child is concerned, the Mishnah (Bava Kama 87A) says that a minor is not liable for his actions. There is a dispute (among the Rishonim) if he must pay when he becomes bar mitzvah, and has his own money to pay. While most Rishonim maintain that he is not required to do so, some poskim including the Mishnah Berurah (343, 9) say that lifnim meshuras hadin the child should pay when he becomes an adult.

As far as the father, who is an adult, there is a Mishnah which issues a clear-cut ruling. The Mishnah (Bava Kama 59B) says, “If one sends a fire by means of a… minor, beis din cannot make him pay for the damages but he is liable in the Heavenly court.” Thus, it would seem that if you take him to beis din they will not force him to pay, but beis din will probably make him aware that after he passes away and appears before the Heavenly tribunal they will rule that he is liable and he will have to suffer the consequences of not having paid when he was alive.

Being liable in the Heavenly tribunal is not to be taken lightly. Besides being punished after death, there are Rishonim like the Meiri (Bava Kama 56A) who rule that even before he passes away he is not a kosher witness as long as he doesn’t pay. Others disagree. But this means that according to the Meiri if someone asks him to be a witness at his chasuna he will have to decline.

Furthermore, there are some possibilities that the beis din you go to will require him to pay. One is that nowadays before beis din hears a case, they sign the parties onto an arbitration agreement. Often, the agreement contains a  clause allowing beis din to rule that one is liable even if according to the strict letter of the law he is not liable. The reason for this is that the arbitration agreement allows beis din to rule someone liable if he acted in a perverted (lo yashar) manner. Rav Zalman Nechemia Goldberg maintains that an action for which one is liable in the Heavenly tribunal is classified as being perverted in this sense and therefore, a beis din which signs the parties onto this type of arbitration agreement has the right to rule that someone is liable for his son’s damages which were done at his behest.

Furthermore, there are Rishonim and Acharonim who rule that beis din should find your neighbor liable even without the arbitration agreement. The Ritva (Bava Metsiya 10B) says that the Mishnah which states that an adult is not liable in beis din for a minor’s actions is only where the grownup did not tell the minor to damage but did no more than make available the means by which the minor damaged. However, if an adult told him to damage, the adult is liable even in beis din. The Shach (182, 1) records a Nemukai Yosef who agrees with the Ritva.

The Shach questions how anyone can advance such a position since, according to Torah law, a minor cannot be an agent. The Nesivos (182, 1) answers that the position of these Rishonim is that if the Torah makes an exception to its usual rule that one cannot act as an agent to perform an aveiro for someone else, and in a particular case does recognize the responsibility of the one who sent the agent, then in that case even a child can act as such an agent. The reason is because when the Torah recognizes the performance a forbidden act by means of an agent, the only issue is responsibility – that the one who commissioned the agent is responsible for his agent’s actions.

The Machane Efraim (Nizkei Momone, siman 7) has a different approach. He understands that the reason the adult is liable is because his actions are classified as garmi – the kind of causative actions for which one is liable.

Regardless of the explanation, according to the Ritva and Nemukai Yosef, beis din would rule that your neighbor is liable for the entire damage. Of course, there are Rishonim (such as Tosafos in Bava Metsiyo 10B) who understand the Mishnah in the more obvious manner and rule that beis din cannot require the adult to pay even if he told the minor to damage.

However, it should be noted that the ruling of the Sema (418, 27) is like the Ritva but the Shach (418, 9) disagrees. The Aruch Hashulchan (182, 11) accepts the Nesivos’s interpretation of the Ritva and rules that this is the authoritative opinion.

In conclusion, your neighbor certainly has complete liability for what was done at his request. However, it is not certain that beis din will make him pay.

 

Share The Knowledge

Leave a Reply

Your email address will not be published. Required fields are marked *