The Lost Library Book

Question

Ten year old Yoni borrowed a book from the local Jewish
lending library. Yoni’s mother also found the book interesting. Indeed,
she read it from cover to cover! At the end of the two-week loan period,
Yoni took the book with the intention of returning it to the library. On
the way, he met a friend and decided to play with him. He put the book
down on a wall. When he finished his game, he went to pick up the library
book – only to find that it had disappeared! The library claims that
Yoni’s parents must pay for the lost book. Are they right?


Answer

Whenever an adult and a child meet and one injures the
other, the adult is always the loser, says the mishna in Tractate Bovo
Kamo
(87a). If the child injures the adult, he is exempt from paying,
since a minor is not considered responsible for his actions. Therefore, he
remains totally exempt, without any moral obligation to pay, even after he
reaches adulthood (Choshen Mishpot 424:8). However, if the adult
injures the child, he does have to pay him compensation.

In our case, the child did not cause damage or injury,
but was negligent in looking after another person’s property. Does a child
bear responsibility for an item he was meant to guard? Could it be that
the child’s parents are liable for his negligence? If the library made the
parents sign an undertaking that they would pay for any lost or damaged
books, it goes without saying that they are liable. In our case, no such
commitment was made. It would therefore appear that neither Yoni nor his
parents are liable. Indeed, handing over a book to a minor who is not
capable of looking after it is tantamount to actively destroying it (aveida
mi’da’as
). Similarly, one who hands another person’s property to a
minor is liable for its loss; leaving it in his care is the equivalent of
causing its loss (See Nesivos 161, Note 1, who deems property in
the care of a minor to be partially guarded). If the owner
deposited the item with a minor, neither the minor nor anyone else is
obligated to return it to the original owner (Shulchan Oruch, Choshen
Mishpot
161:4). However, one may not take the item away from the
child, nor may one use it without the owner’s permission. Since the owner
did not intend to make it hefker (ownerless), this is considered sho’el
shelo mi’da’as
(borrowing without the owner’s permission), which is a
form of stealing. One can therefore question whether it was correct for
Yoni’s mother to read the book, since it had been given to Yoni – and not
to her!

This leads us to the conclusion that a library does not limit reading
rights to the borrower, but also permits members of his household to read
the book as well. Thus, Yoni’s mother does have permission to read those
books that he borrows. But this creates a new difficulty. If we say that
Yoni is not the sole borrower but that his mother is included, we now have
an adult borrower who is responsible for the book. The moment he lifted up
the book (kinyan hagbo’oh), he made his parents liable for
the book they were borrowing! Since it got lost, they should have
to pay for it (see Choshen Mishpot 188). There is a different way
of looking at the situation. One could argue that the sole borrower
remains the child. He is the only person whom the library expects to take
care of the book and return it. Nevertheless, his parents and other family
members are permitted to read the book. They are not have the status of
borrowers, but are just using the book with the library’s permission.
Accordingly, they bear no responsibility for its loss whilst it was being
returned. It would still be correct for them to come to an arrangement
whereby they pay some compensation to the library.