Infancy, Legal Aspect Of:

By: Kaufmann Kohler , Lewis N. Dembitz

Infants, the deaf, and those of unsound mind are always named together, as not liable for torts, nor punishable for offenses, nor competent as witnesses ( see Accident ; Assault and Battery ; Evidence ). For the difficulties encountered in suing infant heirs see Debts of Decedents . The freedom of infants from Punishment for crime seems to be silently admitted. There is therefore no need to discuss anything but the validity of contracts ( see Alienation ). A boy over thirteen, and a girl over twelve, years old are of age, provided signs of puberty exist.

The age of competency to contract differs with the kind of contract. A child having no guardian may buy and sell movable property (Giṭ. v. 7); the very rare word "pe'uṭot" (= "children") used here is explained (Giṭ. 59a) to refer to children betweensix and ten, according to their capacity for business, and the child is given this power in order that he may obtain food and raiment. But later amoraim add that such a child may also make gifts of movable property either "inter vivos" or "mortis causa"; though such ability can not be for his good. But a child that has a guardian, or, according to ReMA's gloss to Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 235, 2, one that is under the care of a householder, can neither buy nor sell without the guardian's or householder's consent. An infant can in no case dispose of land; but if he buys land, pays for it, and takes possession, he becomes the owner; though it is not clear that he may not rescind the purchase (B. B. 137b). An infant can not appoint an attorney; hence all alienations or acquisitions resting on an agency for the infant fall to the ground.

An infant can not become surety for the debt of another. Before the age of twenty an infant can not dispose of lands that have come to him by descent or by gift "mortis causa" (Giṭ. 65a), because a young person anxious to get money would sell his land too cheaply. In the purchase and sale of movable property, and in disposing of lands that have not come by descent or by gift "mortis causa," persons under twenty, though inexperienced in business, are considered as of age. In regard to an infant that has borrowed money, the opinion of later authorities (the Talmud being silent) is divided; some assert, others deny, his liability; while the best opinion distinguishes: if it can be shown that the money was borrowed for necessaries, the debt is binding; otherwise it is not; and if necessaries have been obtained on credit, the debt so incurred is binding. Suit, however, can be brought only after the infant comes of age.

Where an infant sells land, whether acquired or inherited, by deed attested, and dies, the heirs can not impeach the deed and recover the land (see B. B. 154a). But one who has sold ancestral land while under the age of twenty can reclaim it, either before or after that age ( ib. ).