The Status of a Minor Regarding Mitzvot

 

Summarized by Eitan Weisberg and Ronen Katz

Translated by David Silverberg

 

 

          As we know, a minor is not obligated in mitzvot and is not liable for punishment for violations of Torah prohibitions.  In this shiur we will attempt to more precisely define the status of a minor with regard to mitzvot and prohibitions and see if we can perhaps distinguish between different laws, and, if so, on what basis.

 

I.

          We begin with the following, fundamental question: Do we consider a violation committed by a minor as not an aveira act at all, as the realm of mitzvot and issurim (prohibitions) simply does not include him, or, do we indeed deem his transgressions acts of aveira, only his young age precludes the possibility of punishment?  According to the second understanding, the minor's age constitutes but a "poter" - a grounds for exemption from punishment; it does not exclude him from the world of the mitzvot and issurim in the Torah.

 

          The first approach we mentioned, that a katan has no connection at all to the realm of mitzvot, may be moderated somewhat by claiming that he has the same status as a non-Jew, who does bear obligations concerning certain mitzvot.  A precedent for such a notion would be a blind person, who, though exempt from mitzvot, obviously cannot steal or murder.  It is similarly possible to argue that a katan is not entirely excluded from mitzvot, but rather exempt from punishment. 

 

Several possible proofs may be brought to this effect.  We cite here several such proofs, examining each one to determine whether or not it indeed proves that a katan is not altogether excluded from mitzvot.

 

i. In Masekhet Yevamot 114a, the Gemara discusses the prohibition against feeding ma'akhalot asurot (forbidden foods) to a katan, and inquires as to whether there also exists an obligation to stop minors from eating such foods.  The Gemara concludes that the Bet Din bears no obligation to prevent a child from eating ma'akhalot asurot[1], but it does derive the prohibition against feeding them to children from a gezeirat ha-katuv (textual implication).  How are we to understand this gezeirat ha-katuv?

 

          Rav Moshe Feinstein suggests that one who feeds a child forbidden foods violates the prohibition of lifnei iver (leading others to sin).  According to this approach, a katan is in fact included under the prohibition of ma'akhalot asurot, but does not receive punishment.  Therefore, one may not actively feed him forbidden foods, but no obligation exists requiring one to prevent him from eating them.

 

          Alternatively, we could suggest that the prohibition does not apply to ketanim at all, and the prohibition against feeding them ma'akhalot asurot stems from a different issue entirely: the "tum'at ha-lev" ("spiritual contamination") that results from eating forbidden foods.  Although no formal prohibition of ma'akhalot asurot applies to a minor, we are nevertheless enjoined to avoid giving them to him because of the adverse spiritual effects of these foods, as described by Chazal.[2] According to this understanding, we should confine this halakha to the specific context of ma'akhalot asurot, rather than extend it to other areas.

 

ii. The Gemara in Masekhet Bava Kama (98b) deals with dina de-garmi (laws of indirect property damage, such as destroying documents of evidence) and tells that Rafram forced Rav Ashi to pay for damages in such a case.  Rashi explains that as a child Rav Ashi had destroyed legal documents, and Rafram required him to compensate the losses when he reached maturity.  At first glance, this incident provides conclusive proof to the fact that a minor's conduct is indeed governed to some extent by Torah law.  One could argue, however, that Rafram did not exact money from Rav Ashi based on a legal requirement to pay, but rather despite his technical exemption.[3] Additionally, one could understand the Gemara differently, that Rafram and Rav Ashi argued as to whether the obligation of compensation exists at all in cases of garmi.

 

iii. The Gemara in Masekhet Sanhedrin (55a) addresses the requirement to kill an animal used by a human being for sexual purposes.  The mishna (54a) presented two reasons underlying this halakha: "takala" - the very fact that it facilitated the violation of such a grave transgression; "kalon" - the shame and humiliation that would result from its continued presence, as people will always associate it with the sin committed.  The Gemara addresses various situations where only one of these two factors is relevant, and questions whether the animal should be killed in such cases.  The Gemara cites proof from the halakha that once a child reaches the age of nine, he is considered capable of performing a meaningful sexual act, such that his encounter with an animal requires the animal's execution.  In this case, the Gemara argues, we have only the factor of kalon, shame and humiliation.  Since the incident involved a minor, this animal cannot be viewed as the object used for a transgression.  This would seemingly prove, therefore, that the animal is killed even in the absence of one of the two factors, so long as either kalon or takala applies.  The Gemara, however, proceeds to refute this proof: "Since he acted intentionally, we have takala, as well; it is the Torah that has spared him [the child, given his age].  Him the Torah spares; the animal, the Torah does not spare."  Apparently, we do, in fact, consider a child's violation a ma'aseh aveira - a forbidden act, only the Torah spares him the punishment for his wrongdoing.

 

          We may refute this proof, as well, by distinguishing between two concepts: aveira and takala.  We find several instances where the Torah looks upon a given activity positively or negatively, without issuing a specific mitzva.  Thus, for example, no specific prohibition exists against tza'ar ba'alei chayim (hurting animals), though proper treatment of animals clearly constitutes a halakhic value.  The same can be said concerning certain cases of honoring parents, when a parent asks a child to do something of no benefit to the parent himself.  It stands to reason that with regard to aveirot, as well, there exists such a concept of a general value.  Although a minor's sexual encounter with an animal does not technically classify as a ma'aseh aveira, the Torah clearly wants for such incidents not to occur, and this suffices to accurately refer to such an act as "takala," even if no technical violation has taken place.

 

iv. An additional source possibly relevant to our issue is the Rambam's comments regarding an adulterous affair of a married ketana.  Although halakha considers the seduction of a minor equivalent to rape ("pituy ketana oness hu"), as clearly established in the Gemara and accepted by all poskim, the Rambam rules in Hilkhot Sota 2:4: "A ketana whose father married her off - if she willingly betrayed [her husband], she becomes forbidden to him."  The Ra'avad disagrees:

 

"Did they not say [in Yevamot 33], 'The seduction of a minor is akin to rape' and also 'The warning to a ketana is not a valid warning, for she has no knowledge'?  If she betrayed him she is forbidden to husband if he is a kohen.  I have never seen any distinction drawn between different types of ketana with respect to seduction… "

 

In any event, the Rambam maintains that the aveira act of a minor qualifies as a transgression on account of which she becomes forbidden to her husband.  We should note, however, that according to the Maharik, the halakha forbidding an unfaithful wife to her husband stems not from the actual transgression, but from her having betrayed her husband.  If we accept this theory, then the Rambam's ruling clearly provides no proof for our issue.

 

v. The Torah mandates not only that a person himself refrain from melakha on Shabbat, but that his children do so, as well ("ata u-vinkha u-vitekha" - Shemot 20:10).  Presumably, the Torah refers to children under the age of mitzva obligation, for otherwise they are included under the prohibition independent of their being someone's children.  Seemingly, then, the prohibitions of Shabbat apply to minors.  We may easily refute this proof, as well, in light of the continuation of the verse, which extends the prohibition even to one's servants and animals.  Clearly, the Torah here commands not the slaves and animals themselves, but rather their master/owner to refrain from having them work on Shabbat.  Similarly, then, the prohibition against children's melakha is directed towards the parents, not to the children themselves.

 

II.

 

          Until now we have tried to draw evidence to the fact that the aveira act of a minor bears halakhic significance as such, and we found that each of these proofs is subject to refutation.  We have seen the two possible perspectives on a katan's status regarding mitzvot.  Either he is essentially obligated but spared punishment for his wrongdoing, in which case he must perform teshuva for his sins upon reaching maturity, or he is entirely excluded from all mitzvot.

 

          We may suggest a number of possibilities in between these two extremes.  First, one could argue that a katan is included under certain prohibitions, namely, "chalavim va-arayot" - forbidden foods and forbidden sexual relationships (or, more generally, prohibitions from which one derives pleasure), but excluded from all others.  The precedent for such a distinction is the halakha of mit'asek, the exemption from culpability generally granted to one who violates incidentally, without any thought or intention.  The Gemara says that this exemption does not apply in the areas of chalavim and arayot, regarding which even a mit'asek must bring a sin-offering.  If we draw this distinction regarding the status of minors, we could explain some of the aforementioned Gemarot that dealt with these two areas of halakha.

 

          The Chelkat Yoav suggests a different distinction, between the obligation of a katan as a Jew, and his obligations as a human being (with regard to the seven Noachide laws).  Although the Torah exempts a minor from the specific prohibitions of Judaism, he remains included under those laws charged upon all of humanity.  This position would accommodate all the Gemarot cited earlier, with the exemption of the sugya regarding ma'akhalot asurot, where we can resort to the specific answer suggested earlier.

 

          Yet a third possible distinction would draw the line between mitzvot bein adam la-Makom (between man and God) and those bein adam la-chaveiro (between man and his fellow).  This approach would contend that a katan is obligated in mitzvot relating to interpersonal relationships, but exempt from those involving man's relationship to his Creator.  This distinction would explain the sugya in Bava Kama concerning the destruction of legal documents.  Indeed, several Acharonim write that although Bet Din need not prevent a minor from eating ma'akhalot asurot, they do bear the responsibility of preventing him from violating mitzvot bein adam la-chaveiro.

 

III

 

          Thus far we have focused mainly on issurim - prohibitions.  What about the fulfillment of mitzvot - what status would ketanim have regarding mitzva obligation?  It stands to reason that although certain issurim may apply to a minor, as we have discussed, he bears no obligation whatsoever as far as mitzvot is concerned, for, after all, he is not a "bar mitzva" - a child of mitzva obligation. 

 

          Many Acharonim asked why halakha validates a shechita performed by a katan (so long as an adult watches) but invalidates any tefillin or mezuzot written by a katan.  In light of this distinction between mitzvot and issurim, the answer becomes clear.  Shechita serves the purpose of rendering the animal's meat permissible; it belongs to the area of ma'akhalot asurot.  Therefore, a katan, who is included under the laws of ma'akhalot asurot, can perform a valid shechita.  Tefillin and mezuza, by contrast, are mitzvot asei, a category which, as we have seen, does not apply to a minor at all.  Consequently, he cannot write tefillin or mezuzot.

 

IV.  The Final Halakha

 

          In Hilkhot Shabbat (O.C. 343), the Shulchan Arukh brings the halakhot of minors and rules that although Bet Din has no obligation to prevent a katan from committing violations, a parent must admonish his child should he partake of non-kosher food.  The Mishna Berura extends this obligation for a parent to reprimand his children to all prohibitions, beyond the specific context of ma'akhalot asurot. 

 

Additionally, the Rema writes that according to the final halakha, a katan need not perform teshuva for transgressions he committed as a minor, though it is appropriate for him to do so.

 

(This shiur was delivered in the yeshiva on Motza'ei Shabbat Parashat Toledot, 5763. The summary was not reviewed by Rav Tabory.)

 

FOOTNOTES:

 

[1] The father may be required to prevent the child because of the mitzva of chinukh (training children in mitzva performance).

 

[2] This notion is explained in the Sefer Ha-kuzari and appears in Rashi's commentary to Shemot 2:7, where he explains why it was necessary to find a Hebrew nursemaid for the infant, Moshe: "This shows that she brought him to many Egyptian women to nurse but he did not nurse, because he would in the future speak with the Shekhina."

 

[3] According to this claim, the question arises as to why Rafram forced Rav Ashi to pay, given that he was not technically obligated to do so.