Child who Causes Damage


 

1.    Children who were playing games on their bicycles, and one of them injures his friend, he is exempt from paying damages as long as the injured party does not bring clear proof that the injury was caused by the other child deviating from the general rules of the game.  This is the principle of "the burden of proof is on the one who wants to exact money".  Furthermore, it seems that even if he brings proof that he is guilty of the injury, he would still be exempt, since anyone who plays games on bicycles knows from the outset that there is a chance of injury or damages, and he waives responsibility for any damage done to him.  If this were not the case, his friends would never want to include him in the game.

2.    Therefore, if the one who caused the injury says that he will pay the injured party, this is considered a gift which he is giving out of the goodness of his heart, and the injured party cannot claim that this gift is payment from a legal perspective.

3.    Regardless, if a person says to his friend that he will give him a gift, it is proper that he keeps his word.  If he promises and does not fulfill it, and it is a minimal amount, it is considered "Mechusar Amana" – a verbal agreement (Baba Metzia 49a.  Shulchan Aruch, Choshen Mishpat 204:7).  If it is a substantial amount, however, it is not considered "Mechusar Amana", since the one who will receive the gift is not certain that he will fulfill his word.  This is especially true in the case of a child, who does not have various sources of money and relies on his father.  Therefore, if it is a minimal amount, it is ethical for the one who promises, of his own free will, to give the money to fulfill his word and to give the gift.  "And one who hates gifts will live [a long life]” (Mishelei 15:27).