Question: A boy entrusted his card collection to a friend. If one of them is not yet bar mitzvah, is there liability of guardianship if the cards should get lost?
Answer: A minor under the age of bar mitzvah is not considered of legal mind (bar da’as) to be obligated in the responsibilities of guardianship. A person who entrusts an item to his care considers it aveidah mida’as, a willing loss (see C.M. 291:21; 188:2).
Therefore, if the cards were entrusted to a minor child, he is not liable for them, even if lost through his negligence (p’shia). Even when the boy grows older, he has no moral obligation to pay, unlike a child who damages (Pischei Choshen, Pikadon 1:17). [Parents should consider, nonetheless, their broad chinuch goal to train financial responsibility and accountability.]
In the opposite case, in which a minor entrusted his cards to a friend who is already bar mitzvah, the Shulchan Aruch rules that the guardian carries full responsibility towards the minor, including the Torah imposed oath. The Rama, however, rules that the Torah oath does not apply to property entrusted by a minor (302:2; 96:1).
Some maintain that even according to the Rama’s opinion there is, at least, a rabbinic responsibility of guardianship towards the minor (GR”A 96:8, but see P.C., Pikadon 1: citing Imrei Yosher). Furthermore, the Shach (96:2) maintains that the guardian is liable, even according to the Rama, if he was negligent with the minor’s property.
Authored by Rabbi Meir Orlian
These articles are for learning purposes only and cannot be used for final halachic decision.
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