QUESTION: In some communities, it is customary for parents to keep money that their sons receive as Bar Mitzva presents. Is this proper?
ANSWER: The Shulchan Aruch appears to suggest that such parents are stealing from their sons. However, this is not so.
The relevant ruling of the Shulchan Aruch (Choshen Mishpat 270:2) states, “Presents given to a minor (i.e. boy younger than 13 or girl younger than 12), who resides with his parents, belong to the parents. However, this is not so for a child who has come of age (i.e. a present given to a child at least 13, even if he resides in his parents’ abode, belongs to the child).” Therefore, it seems that a Bar Mitzva child’s monetary presents belong to the child.
The Gra (note 6) suggests that there should be no difference between a minor and a child who has reached the age of 13 because the Torah grants a minor the same standing as an adult to acquire gifts. According to the Torah, a minor does not acquire property that he finds, but he does acquire gifts.
The S’ma (note 8) is troubled by the same question as the Gra. However, the S’ma offers a solution – the ruling of the Shulchan Aruch concerning presents is based on the intention of the gift giver. Minor children are not generally mature enough to care properly for their possessions. Therefore, we assume that one who “gives” a present to a minor intends to give the present to the minor’s parents.
It follows from the S’ma’s logic that where there is a well-known custom for parents to keep their children’s monetary gifts, a parent is justified in following that custom. We may assume that most gift givers are aware of the local custom that monetary gifts to children are intended for the parent(s).
We will presently show that Bais Din cannot force parents to surrender their children’s monetary gifts even in locales where this is not the custom.
The Mishna in Bava Metzia (12A) writes, in reference to a child who finds a lost object, “A father is entitled to any object that his minor child finds. However, a child who has come of age retains ownership of the objects that he finds.” The Gemara records a dispute between Shmuel and Rav Yochanan about what is meant by a child who is a “minor” and one who has “come of age.” Shmuel’s opinion is that these expressions are to be understood literally and the Mishna is differentiating between boys younger than 13 and those 13 and older. Rav Yochanan, whose opinion is authoritative, maintains that the Mishna uses the term “minor,” to refer to a child who lives with his parents (or is supported by them), no matter his age, and the expression “who has come of age” refers to a child who supports himself.
Thus, according to the Halacha, even when a child is at least 13, the objects he finds automatically become his parents’ possession provided he is supported by them. According to the Torah, objects found by a child at least 13 belong to him since he has standing to acquire objects. However, the Rabbis promulgated an edict that objects found by children belong to the parents in order to avoid conflict between them and their children.
The Gemara discusses lost objects but not the status of presents received by a child at least 13, who lives with his parents. Earlier, we mentioned the ruling of the Shulchan Aruch that the child retains ownership. This is based on the Ran’s commentary to Bava Metzia (12B) and the Nemukei Yosef’s (Page 6A of the Rif) explanation of the Gemara. These commentators mention an anonymous dissenting opinion who maintains that the legal status of presents received by a child is the same as the status of lost objects found by the child. According to this opinion, when a child, even over the age of 13, who lives with his parents, receives a present, the present enters his father’s possession. The rationale is that when the Rabbis ruled that the lost objects found by a child enter the parent’s possession, they effectively invalidated the standing of someone who lives with his parents to acquire property of his own. Other commentators assert that this dissenter is Rabbainu Tam. The basis for this assertion is that in Rabbainu Tam’s discussion of an unrelated Halacha (how one makes an Eruv Chatsairos), he writes that a child who lives with his parents does not have the standing to acquire objects for himself.
The opinion of Rabbainu Tam is followed by many other Rishonim including the Rosh, Tur, Semag, and Smak. The Shulchan Aruch (Orach Chaim 366:10), in fact, records the opinions of Rabbainu Tam and the Ran, et al. and does not render a decisive ruling. Thus, the ruling of the Shulchan Aruch in Choshen Mishpat is actually the focus of a major dispute that is recorded in Orach Chaim but not in Choshen Mishpat. The Maharsham (Responsa; Volume 3, responsum 313) explains that the Shulchan Aruch in Choshen Mishpat takes into account his ruling in Orach Chaim and merely intends to say that the father cannot force his son to yield ownership of his presents since the matter is the subject of a dispute. A basic rule in Choshen Mishpat is that, in a circumstance of contested ownership, a person cannot be forced to surrender possession (Homotsey maichavairo alav haraya).
Since the ownership of presents given to a child at least 13 who lives with his parents is the subject of a dispute among the Rishonim, parents who take possession of these presents, cannot be forced to give them to their child. At the same time, they cannot force their child to surrender ownership, except in circumstances where we may assume that this is the giver’s actual intention.
In conclusion, where it is well-known that parents keep their child’s monetary gifts, parents may keep the money and, where it is not the custom, either the parents or the child may keep the presents.
This discussion has focused entirely on the strict Halacha. However, in certain situations, educational considerations would dictate a different response on the parents’ part.
