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Ki Siso-Responsibility to return money borrowed as a child

 

Question

Once, when I was twelve years old, I boarded a bus. When I reached into my pocket to pay the driver I realized that I didn’t have enough money to pay. I asked someone to lend me five shekels and used the money to pay. Many years have elapsed since then and I never paid the lender. Am I or my father obligated to return the loan? Since I was a minor at the time and my parents supported me, I never felt it was my obligation to repay the loan. However, now I am thinking that perhaps it is my obligation. What should I do?

Answer

This issue is never directly discussed by the Gemara. The primary source is the Rosh (Kesubos 13, 7) who cites a Rama (a Rishon) who derived from a ruling of the Gemara that a child who borrows is obligated to repay his debts when he becomes an adult. The Rosh also cites Rabbeinu Yona who deflects the Rama’s proof and argues that the Rama cannot be correct because if a child who borrows is obligated to repay, people will lend to minors who borrow carelessly and the result will be that children will amass large amounts of debt. Therefore, it must be that one is not obligated to repay any debts that he incurred before reaching adulthood.

The rationale of R. Yona is that all agree that Biblically, a minor is not legally responsible for his actions and therefore, he is not Biblically obligated to repay his loans. The only possible basis for requiring a child to repay his loans is by means of an enactment of the Rabbonim. R. Yona argues that since the Rabbonim only make constructive enactments, they would certainly never enact a rule requiring minors to repay their loans because it will have destructive results.

The Rosh himself disagrees with both opinions and rules that it depends on why the minor is borrowing. If it is clear that he is borrowing because he needs food, then he is obligated to repay even while he is still a minor. But if it is for something else he does not have to repay even after reaching adulthood.

Thus, he is basically agreeing with Rabbeinu Yonah but he makes an exception for the situation where Rabbeinu Yonah’s fear is not applicable and it is indeed constructive to set up a framework to enable a child to borrow. Since people will not lend children money if they will not be repaid, the Chachomim enacted that a child who borrows because he needs food must repay just like an adult is obligated to repay his loans.

The Rosh says that that this enactment is similar to the enactment of Chazal that a child who has reached a certain level of maturity (called pe’utos) can legally buy and sell moveable items, in which case the Gemoro (Gittin 59A) explains that the rationale for this enactment is that otherwise it would be difficult for a child to live since people will not do business with him. The reason people will not do business is because, for example, after a minor sold an item he would be able to demand its return with the claim that his sale was not legally binding. Therefore, the Chachomim enacted that their purchases and sales are legally valid and final.

The Rosh says that here too, since the loan for food is necessary for the minor’s well-being, if the minor is not obligated to return the loan no one will lend him any money. Therefore, there is an enactment that when a minor borrows for something essential for his well-being he is obligated to repay.

The SA (235, 15) cites all three opinions without issuing a ruling. However, the Acharonim (See e.g. S’ma note 43) explain that the authoritative opinion is the Rosh that the purpose determines whether the loan obligates the minor to repay. Thus, it seems that since you borrowed for an essential need you are obligated to repay and were actually obligated to repay right away, as soon as you could.

However, since the Rosh compared his ruling concerning loans with the law concerning sales and purchases, we have to consider another section of Gemoro. The Gemoro (Kesubos 70A) rules that the enactment that minors can legally buy and sell applies only to a child who does not have a guardian. A minor who has a guardian cannot legally transact. The rationale is, as the Rosh stated, that the reason the Chachomim enacted that a minor can transact business is because it is necessary to enable him to live. Since when he has a guardian, the guardian can transact on his behalf, therefore there was no necessity to enact that a minor orphan can himself transact. Therefore he cannot transact. We note further that many Rishonim (Rashbo Gittin 65A, Ritvo Succa 46B, Mordechai Gittin 413) rule that the same is true for a minor who is sustained by his father. Since his father takes care of his needs it is not necessary to enable such a minor to transact business and therefore, he cannot. According to this it seems that since you were sustained by your parents, the ruling of the Rosh does not apply to you.

However, it is not clear that the Rosh wishes to confine the obligation of a child to repay his loans to those children who can transact business, namely orphans who have no guardian. It could be that the Rosh just derived a principle of Chazal from the enactment that children who don’t have a guardian or father can transact, namely, that they made enactments when it is necessary for the well-being of a minor. Consequentially, the Rosh would apply it to a situation where for any reason the loan is necessary for the well-being of a minor even if the minor does not fit into the category of children for whom the Chachamim enacted that they can legally transact.

Strong support for this position can be brought from a ruling of the Sema (235, 43) that according to the Rosh if the purpose of the child’s borrowing is to support himself, even a minor who has not reached the level of maturity needed to transact business can, nevertheless, borrow money. If the ruling concerning borrowing money is part of the enactment that a minor can transact, then a minor who cannot transact would not be able to borrow money. Therefore, it is quite clear that the Sema understood that the Rosh intended to derive from the enactment that minors can transact, the principle that minors can borrow any time the borrowing is essential for their own well-being.

We note that others like the Shach (note 7) and Bach disagree with the Sema’s ruling. However, they do not dispute the Sema’s understanding of the Rosh. The Shach just writes that it is a bit far-fetched that the Chachomim would enact that an immature child can borrow money, even if the purpose is important. The Bach just tersely remarks that he doesn’t agree. We note further that the Nesivos (chiddushim 29) and the Tsedoko U’mishpot (res. CM 41) rule like the Sema.

The Nesivos also adds one other important point of clarification: even though the Rosh only said that a minor must repay his debts if it was clear at the time that the minor was borrowing for something essential, nevertheless he agrees that if, after the minor becomes an adult, he admits that he borrowed for something essential he is liable even though it was not clear at the time that he borrowed that this was the case. This again shows that what is critical is the purpose and not what the lender thought.

Further proof that the Rosh did not intend to restrict the obligation to repay to those who don’t have parents or a guardian can be derived from the Levush (235, 15) who does not relate the ruling of the Rosh to the law that a child can transact, but just writes that if a child borrows for items like food, the Chachomim enacted that he must repay so that when he really needs money he will find lenders.

Since neither the SA nor its commentaries ever write that this law applies only to a child who does not have a guardian or parents who sustain him this is an additional indication that this law applies to all children. The fact that this very prevalent case (since almost all children do not fall into the special category) is omitted itself indicates that, unlike the law concerning minors who are able to transact, this law applies to all children.

However there is another halacha in the SA which certainly is limited to this small class of children but nonetheless the SA makes no mention of this limitation. This law concerns giving a child one’s esrog on the first day of Succos. The Gemara (Succa 46B) writes that one should not give his child his esrog on the first day of Succos before he fulfills the mitzvah himself because a child can legally receive but cannot legally give back. The Rishonim (Rashbo, Ritva, Ran) state that if a child has reached the level of peutos and does not have a guardian and is not supported by his parents, one can give him his esrog because such a child has the legal ability to return the esrog. However, when the SA (OC 658, ) records this halocho, he excepts children who have reached the level of peutos without mentioning that this is limited to children who do not have a guardian and are not supported by their parents. (The question why the SA neglects to mention this important limit concerning esrog is asked in Hilchos Chag Bechag, Chapter 7, footnote 23.)

We should note further that even if what we wrote above is incorrect it is proper for you to repay. We can derive this from the laws of damages since we find that even when a minor damages, where the Mishna (BK 87A) states that he is not required to repay, nevertheless the Mishna Beruroh (343, 8) cites many poskim that he should repay when he becomes an adult. If that is true even for one who damages, it certainly is true for one who borrows since one who borrows is more liable than one who damages.

Another interesting question that is related to the issue of a child who borrows is the question whether there is a mitzvo to lend a minor. It would seem that since the child has to pay back if he borrows for something important for his well-being, it should be a mitzvah to lend the child in this case. However, the Minchas Chinuch (mitzvo 66, 4) is inclined to rule that one is not obligated to lend the child since he may fear that the child will not have the ability to repay since he does not earn money.

In conclusion: Since you borrowed for carfare which is like food – important for your well-being – you must repay the loan and should have done so, as soon as you were able.

 

 

 

 

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