Yossi (12 years old) was in the hall and saw a younger boy playing with a Diablo (Chinese yoyo consisting of two sticks connected with a string, and two plastic cups attached with a silver bolt). He asked for permission to use it, and the younger boy agreed. Yossi attempted to do a certain trick (which is normal to do) and one of the sticks cracked.

Q: They asked me, their rebbi, to decide whether Yossi is obligated to pay for the damaged Diablo. Is there any reason to obligate Yossi for chinuch purposes? 

A: There are two issues here. One is the halachah pertaining to a minor who lends his object to another (assuming that it in fact belongs to the child; see C.M. 270:2). The second issue is the responsibility of a child who borrows an object.

Regarding the first matter, Poskim debate whether an adult is liable as a custodian for a child’s object. Some contend that an adult has no liability since the Torah uses the term ish and a child is not an ish. Others maintain that a custodian for a child’s object is liable (C.M. 96:1, 302:2). This debate is limited to acting as a custodian for a child’s object, but all agree that since a child cannot convey ownership he cannot halachically lend his object.

Therefore, one who “borrows” a child’s object is borrowing that object without permission (sho’el shelo midaas) and is categorized as a thief (C.M. 292:1, 359:5). As a thief he is liable even if the “borrowed” object becomes damaged in the normal course of use (meisah machmas melachah), in contrast to a borrower who is exempt in such a circumstance (C.M. 340:1; Minchas Chinuch 60:10; Imrei Binah, To’en v’nitan 38; Chazon Ish, E.H. 74:18, d.h. b’ketzos). Even if we were to assume that one who “borrows” from a child is not a thief since the daas the child possesses prevents the “borrower” from being classified as a thief (Igros Moshe, O.C. 2:107; Nachal Yitzchak 96; and see Oneg Yom Tov 111), nevertheless, it is not sufficient daas for the child to indemnify a borrower who damages the object in the normal course of use.

Poskim do write, however, that when a child reaches the age of pe’utos (one who understands the nature of business; generally above the age of six), since he can execute transactions (C.M. 235:1), one who borrows an object from him is not a thief and is not liable if the object becomes ruined in the normal course of usage (Minchas Chinuch and Imrei Binah op. cit.; cf. Gidulei Shmuel, B.M. 96b to the effect that in this case the borrower is liable).

[However, some contend that if a child’s father is alive, Chazal’s enactment to recognize the child’s kinyanim does not apply (Darkei Moshe 2, cited by Nesivos 10) and thus a child who has a father cannot lend his objects.]

When the “borrower” is also a child, it is clear that he does not have the liability of a custodian. Furthermore, even the halachah that a person should pay for damage that he inflicted when he was a child (O.C. 343; Pischei Teshuvah, C.M. 349:2) is limited to where his act was intentionally destructive. If his act was not intentionally destructive, he is not expected to pay the damaged party once he is an adult (see Pischei Choshen, she’eilah 1:[34]) and he is certainly not liable if the object becomes damaged in the normal course of usage. Since an adult in that circumstance is not liable, there is no reason, even for chinuch purposes, for a child who damaged in that manner to be liable.