Duties and Rights of a Minor in the Oxford Manuscript of the Mishneh Torah

Thursday, 5 January, 2017 - 7:35 pm

MS.pngThis essay will aim to outline the status of a minor in Jewish law based on an interesting variation in the Oxford Huntington manuscript of Maimonides’ legal code Mishneh Torah. I will first present the general status of a minor as seen through civil law, followed by an in-depth analysis of various approaches to a minor as found in Jewish law. 


Society differentiates between a minor and an adult. In Roman law, as in ancient Chinese and Greek law, children had no rights. In the 18th century work, the Commentaries of Sir William Blackstone on the Laws of England, it states that the father in ancient Roman Law had the power of life and death over his children on the principle that “he who gave had also the power of taking it away”.[1] In England, a father’s complete control over his children lasted until the British Act of 1839 that awarded custody to the mother when the child is seven years old or younger. In modern society the law has fundamentally changed prioritising not the rights of the parents over their children but rather the parents’ obligations based on what is in the best interest of the child. In America, this change is enshrined in the Bill of Rights IV: The right of the people to be secure in their persons. This is meant to mean a person from the moment of birth[2].


The notion that minors have basic rights, including the right to live and not be harmed, has precedent in Jewish law going back centuries. Jewish law does not make a distinction between the value of a life of a one day old child and an adult. Maimonides legislates this in his legal work Mishneh Torah[3]:


Whether a person kills an adult or an infant that is one day old, a male or a female, he should be executed if he killed him intentionally, or exiled if he killed him unintentionally.


Sir Jonathan Sacks argues in his article The Binding of Isaac: “the principle to which the entire story of Isaac, from birth to binding, is opposed is the idea that a child is the property of the father. As long as parents believed they owned their children, the concept of the individual could not yet be born. The fundamental unit was the family.”[4]


Professor Shlomo Nahmias (Ben Gurion University) argues in his article The Law and the Relationship Between Parents and Children[5] that the focus on the obligations of the parent to act in the best interest of the child, as opposed to parental rights over the child, is based on the notion that life belongs to G-d, and a parent is a custodian of a loan from G-d to be guarded with love and care[6]. Sacks puts this idea at the heart of the Biblical accounts of the miraculous births of Isaac and Samuel and the survival of Moses after the decree that all first born male children should be thrown into the Nile, among other Biblical narratives.


Nevertheless, beyond the need to protect, rather than harm, and to act in the best interest of a child, many will argue that the rights of a child are limited. In secular family law, there are three general approaches to children’s rights. John Holt and Richard Farson argue that children need to be liberated from childhood and should be given exact same rights as adults. John Eekelaar suggests a more moderate form of children’s rights. Eekellar argues that a child has autonomy to make his or her own decisions as long as two basic interests of the child are not impacted: essential life necessities (food, shelter and so on); and development interests, including the need for social and educational skills. A third approach is paternalism: while recognizing the distinction between the need to protect children and affording them rights to make their own autonomous decisions, paternalism opposes the notion that a child has inherent rights. The premise is that children lack the capacity to make reasoned and rational decisions that need to be respected[7].


Doli incapax


As children have limited rights, according to many opinions, there is also a presumption of doli incapax, deeming a child under a certain age incapable of forming the intent to commit a crime or tort, by reason of age (under ten years old in England)[8].


The same appears to be the view in Jewish law: children are not deemed sufficiently mentally mature to form their own decisions and be held accountable for criminal acts. This is based on the Biblical verse[9]: “And you, speak to the children of Israel and say: Only keep My Sabbaths! For it is a sign between Me and you for your generations, to know that I, the Lord, make you holy.” The Mechilta of Rabbi Yishmael derives from this verse that ‘to know’ implies that the obligation of the Mitzvot is only to one who is capable of knowing, excluding a minor who does not yet have the knowledge and intention of wrongdoing. 


Maimonides codifies this in Laws of Shabbat[10]:


If a fire broke out on the Sabbath and a gentile comes to extinguish it, we may not tell him, "Extinguish it," nor must we tell him, "Do not extinguish it," for his resting is not our responsibility. In contrast, should a child desire to extinguish the fire, he should not be allowed if he is acting on his father's behalf. If he is acting on his own initiative, the court is not obligated to restrain him.


Similarly in Laws of forbidden foods[11]:


When a child eats forbidden foods or performs a forbidden labor on the Sabbath, the Jewish court is not commanded to make him cease, because he is not intellectually capable.


As Jewish law does not recognize culpability of a minor, it also does not afford a child responsibilities or duties. This is evident from the lack of obligation of a minor to hear the sounding of the Shofar on Rosh Hashana[12], to sit in a Sukkah on the holiday of Sukkot[13], eat Matza on Passover[14], hear the reading of the Megillah on Purim[15], light the Chanukah candles[16] or study Torah[17]. The second century work in Jewish law Mishnah states:[18] All are obligated to read the scroll of Esther except a mute, a fool and a minor. The same is the law regarding sexual relations. A minor is not punishable for having sexual relations with a married woman[19].


Property rights


In addition to the lack of personal duties of a minor in Jewish law there are also restrictions on the acquisition and sale of possessions. In “Laws of Sale” Maimonides writes[20]:


There are three types of individuals whose purchase is not considered a binding purchase, nor is their sale considered a binding sale according to Scriptural Law: …a minor. Our Sages, however, ordained that a minor may buy and sell in order to guarantee their livelihood: a. Until he is six years old, he may not transfer (movable or land) property to others at all[21]. b. From the age of six until he attains majority he should be tested. If he possesses an understanding of the nature of financial transactions, any purchases or sales he undertakes, and any presents he gives, are binding. This applies only regard to movable property. c. With regard to landed property, a minor cannot sell or give property away until he attains majority. d. It appears to me that when a minor acquires landed property, pays its price, and manifests possession over the property, it should remain in his possession, despite the fact that he cannot sell property. The rationale is that it is as if the minor is not in our presence. And we follow the principle: we may acquire a benefit for a person outside his presence, but we cannot cause a loss for a person outside his presence.


Thus, according to Biblical Jewish law, a minor does not have the capacity to buy or sell and has limited rights according to Rabbinic law. Rabbinic law enabled a minor to buy and sell movable property in order to survive. A minor may only buy land property when there is a seller transferring the land, thus acting on behalf of the minor in the acquisition. He cannot in any event sell land property until adulthood. Rabbi Aryeh Leib Heller (c. 1745 – 1812), known as the Ketzos, states that if a property is ownerless, a minor in fact has no capacity to acquire such a property, as there is no party transferring the property, acting on behalf of the minor[22]. 


No legal status


The lack of any legal status of a minor is also evident from the law pertaining to finding lost property. If a minor finds a lost item, the law affords ownership to the minor only for the sake of peace, which does not reflect any true ownership[23]:


As a reflection of the paths of peace, the prohibition against robbery applies to a lost object taken by a …minor. As such, if a person transgresses and robs such an article from one of these individuals, it cannot be expropriated from him by legal process. If he denies taking the article and takes an oath to that effect, he is not liable to pay an additional fifth.


A minor can certainly not act as an agent on behalf of another party in acquiring lost items[24]:


When a minor lifts up an article on behalf of a mentally competent individual, the mentally competent individual does not acquire the article. For he is not considered of sufficient mental capacity to acquire an article on behalf of another person. 


Jewish law goes further expressing an opinion whereby a minor may be seen as merely as a representative of the father. This is illustrated in the following Mishnaic law[25]: “The find of one’s minor son or daughter belong to the father.” We can conclude then from the perspective of Jewish law that due to the lack of sufficient mental capacity of a minor there are: a. no obligations, b. no means to independently acquire an article, c. no permission to sell an item to another party.


Dimensions of obligations


The view of Jewish law regarding the legal status of a minor however is more complex. I would like to suggest that just as Jewish law established legal protection of a minor despite the lack of any such rights in the ancient world, similarly, it suggests parameters of legal duties and responsibilities pertaining to a minor that go beyond what other systems of law are willing to afford. We will present how this is expressed in a number of areas.




As we explained above, a minor has no direct personal obligations in Jewish law. Nevertheless, Jewish law states that a parent has an obligation to train one’s child in the laws. The Talmud states[26]:


A minor who knows how to shake a lulav is subject to the obligation of the lulav, to wrap himself with a tallit, he is subject to the obligation of tzitzit, to look after tefillin, his father must buy tefillin for him. 


Maimonides writes regarding the study of Torah[27]:


A father is obligated to teach his son Torah while he is a minor, as Deuteronomy states[28]: "And you shall teach them to your sons to speak about them”. At what age is a father obligated to teach his son Torah? When he begins to speak, he should teach him Torah tzivah lanu Moshe[29] (The Torah that Moses commanded us) and Shema Yisrael (Hear Israel)[30].


Personal or paternal obligation?


There is a dispute among the medieval commentaries whether the obligation to train one’s child in the laws represents a personal rabbinical obligation upon the child in the duties of the Mitzvot or a paternal obligation with no resonance of direct obligation on the child. Rabbi Shlomo Yitzchaki, known as Rashi (1040-1105),[31] and Rabbi Moses ben Nachman, known as Nachmanides (1194-1270),[32] maintain there is no personal rabbinical obligation on the child. Tosafists[33] and Rabbeinu Nissim (1320-1380)[34]maintain the child does have a personal obligation according to the rabbis to fulfill the Mitzvot when he has the knowledge. According to two of the leading medieval legalists, this implies a personal obligation upon the child to be trained in the laws when the child is mentally competent to perform them.


Maimonides appears to side with the Tosafists, as he drafts the laws of training in the personal. In the laws of Tzitzit[35], blessings[36], Sukkah[37] and Lulav[38], he writes that a child who knows how to don a Tallit is obligated to wear Tzitzit, a minor is obligated to recite Grace after Meals, a minor who is weaned from his mother is obligated to sit in a Sukkah, and a minor who knows how to shake the Lulav is obligated to do so in order to train the child in the performance of the Mitzvot.


Without a dimension of legal obligation or responsibility upon minors, it would be illogical to ascribe any kind of personal obligation upon them. The law of training should be framed purely as a paternal obligation[39].


Pascal offering


In the laws of the Pascal offering Maimonides also seems to imply a degree of legal obligation upon a minor. Maimonides writes[40]:


A convert who converts between the first Pesach and the second Pesach and similarly, a child who comes of age between these two holidays is obligated to offer the second Paschal sacrifice. If one slaughtered the first Pascal sacrifice for the sake of the minor, the minor is exempt from bringing the second sacrifice.


Rabbi Joseph Karo (1488-1575) in his commentary to the Mishneh Torah[41], Kesef Mishneh, poses a question: The law is that if a person, beyond their control, does not take part in the Pascal offering on the first holiday of Pesach, then he is obligated to take part in the offering on the second Pesach (30 days later). As the child was not of age during the first Pesach, why is the minor not obligated to bring the Pascal offering on the second Pesach? 16th century Rabbi Joseph Kurkus, known as Mahari Kurkus, in his commentary on Maimonides, explains that since the Scripture allows for a minor to be appointed individually to be a part of the Pascal offering together with his group, he receives a part of the obligation and thereby is exempt of the obligation to bring the Pascal offering when he comes of age on the second Pesach [42].


Maimonides’ Oxford manuscript


A further indication of an obligation upon a minor may be seen from an Oxford manuscript version of Maimonides’ Mishneh Torah pertaining to Torah study. The standard view in Jewish law is that a minor has no personal obligation to study Torah until adulthood. In the standard edition of Maimonides’ Mishneh Torah it states:[43] Women[44] and minors are free from the obligation of Torah study.


The Oxford Huntington manuscript,[45] authenticated with Maimonides’ own signature, confirming that the version is copied from his original work, omits the word ‘minor’ pertaining to the exemption of obligation of Torah study[46]. It merely states: Women[47] and slaves are free from the obligation of Torah study. The Yemenite, Ashkenazic and Sephardic manuscripts also omit the exemption of a minor, as do early published editions. This includes the printed edition by Moses ben Shaltiel from Spain/Portugal, dated either 1492 or 1497,[48] as well as other old Sephardic printed editions[49]. 14th century Spanish Rabbi Shem Tov ben Abraham ibn Ga’on omits the word minor in his commentary to Maimonides, Migdal Oz, as does Rabbi Meir, son of Yekutiel, HaKohein (d. 1298) in his gloss Hagahot Maimoniyot (first published in the Constantinople edition of Mishneh Torah 1509). Rabbi Avraham Hiyya de Boton (c. 1560 - c. 1605) in his commentary Lechem Mishneh (pub. Venice 1609) however includes the word minor. The Venice 1550/1 printed standard edition of the Mishneh Torah also includes the word minor.


Rabbi Schneur Zalman of Liadi 


Rabbi Schneur Zalman of Liadi (1745-1813) appears to have followed the text of Maimonides with the word minor included. In laws of Torah study, he writes[50]:


Even though a minor is exempt from all the Divine commandments and also a father is not biblically obligated to educate a child[51] but only rabbinically, nevertheless there is a biblical positive commandment for a father to teach his son Torah[52], even though the minor is not obligated[53], as it states, And you shall teach your children to speak in them.


The Oxford version of the Mishneh Torah among other manuscripts and printed editions that omit the exemption of a minor from study Torah, may indicate a degree of obligation upon the minor to study Torah when he has acquired sufficient knowledge to be taught. This would be consistent with the view of Maimonides that entertains the notion of a personal obligation on the child to be trained rabbinically in the Mitzvot, similar to, as mentioned, the obligation upon a minor pertaining to the Pascal offering on Pesach, despite his not yet coming of age. 


Biblical obligation upon a minor to study Torah


The view that there is a personal obligation upon the minor to study Torah is expressed by 19th century Rabbi Menachem Mendel of Lubavitch (1789-1866), known as the Tzemach Tzedek, in his commentary on Maimonides[54]. He writes that since the obligation to teach one’s child the Torah is biblical in origin, as it states:[55] ‘And you shall teach them to your sons’, unlike the obligation to train one’s child in other Mitzvot, which is rabbinical in origin, one may argue that there is a biblical obligation on the minor himself to study Torah.


The rationale for a personal biblical obligation upon the minor pertaining to Torah study may be similar to the reasoning for personal rabbinical obligation upon the minor regarding training to perform Mitzvot. Rabbi Menachem M. Schneersohn argues[56] that the rationale is based on the notion that when there is a necessary, indispensable ancillary component to a Mitzvah, that ancillary becomes a part of the Mitzvah itself. The principle example of this is sexual relations. Since sexual relations necessarily involve two parties, Rabbi Nissim, known as the Ran, ascribes the Mitzvah of procreation to both parties[57]. The same is the case regarding training a minor in the performance of a Mitzvah. The fulfillment of the father to train the child in the Mitzvot necessitates a minor as a recipient of the training. One can argue that this is particularly the case in relation to study of Torah that involves the minor in a more intense way, as the minor must be able to grasp the study of Torah for the father to fulfill his obligation to teach it to his son, once he is able to comprehend. This would explain the omission of a minor in the Oxford manuscript as being exempt from Torah study.




In conclusion, Jewish law adopts the overall notion that a minor has no autonomy or legal status in regard to ownership of movable or land property. Similarly, minors are not held accountable for their actions, similar to secular law that absolves responsibility of a minor, although the age for this varies from country to country. Nevertheless Jewish law, according to Maimonides, as indicated in the Oxford manuscript version of Mishneh Torah, does ascribe a transfer of obligation and duty to a minor when the minor plays a necessary part in the fulfillment of the prental obligation. This dimension of obligation in Jewish law goes further than what other systems of law are willing to afford a minor in regard to their legal status, duties and rights.





[1] Blackstone’s Commentaries (New York: Augustus M. Kelly, 1969) Vol.II, 452. See the Jewish Law Annual Vol. X, p. 65 (Boston University Institute of Jewish Law).

[2] The US Supreme Court rulings Kent v. United States (383 US 451, 1966), In Re Gault 387 US 1, 1967), In Re Winship (397 US 358, 1970). See the Jewish Law Annual Vol. X, p. 59.

[3] Mishneh Torah, Rotzeach uShmirat Nefesh 2:6

[4] Accessed 4 January, 2017.

[5] Jewish Law Annual Vol. X, p. 67

[6] Job 1:21: The Lord gave and the Lord hath taken away, blessed be the name of the Lord. See Yalkut, Proverbs 964.

[7] Family Law A very Short Introduction p. 68-78

[8] S50 Children and Young Person’s Act 1933 (as amended by the Crime and Disorder Act 1998).

[9] Exodus 31:13

[10] 12:7

[11] 17:27; Yevamot 114a

[12] Mishneh Torah, Laws of Shofar 2:1

[13] Mishneh Torah, Laws of Sukkah 6:1

[14] Mishneh Torah, Laws of Chametz u’Matzah 6:10

[15] Mishneh Torah, Laws of Megillah 1:2; Mishnah Megillah 19b

[16] Mishneh Torah, Laws of Chanukah 4:9

[17] Mishneh Torah, Laws of Talmud Torah 1:1

[18] Megillah 19b

[19] Mishneh Torah, Laws of Forbidden Relations 1:13

[20] Chapter 29

[21] He may receive ownership from a seller, as the seller is transferring the item to the minor and acting for his benefit on his behalf. This is the reason for the following law (Mishneh Torah Hilchot Lulav 8:10): On the first day, a lulav should not be given to a minor, since, according to Torah law, a minor can acquire articles but cannot transfer them to others. Thus, the minor's return of the article is not considered to be a return from a legal perspective.

[22] Ketzot Hachoshen 235:4

[23] Mishneh Torah, Laws of Theft and Lost Articles 17:12

[24] Mishneh Torah, Laws of Theft and Lost Articles 17:4

[25] Bava Metzia 12a. Maimonides (Mishneh Torah, Laws of Theft and Lost Articles 17:13) and Rabbi Joseph Karo (Shulchan Aruch Choshen Mishpat 270) side with the opinion of Rabbi Yochanan (Bava Metzia 12b) in the Talmud who maintains a minor who is not dependent on the father does acquire a lost article, as opposed to the opinion of Shmuel, who maintain a minor has no independent right of ownership and is merely a representative of the father. The commentaries point out that the ownership of the lost article is only due to the rabbinical enactment for the sake of the path of peace but Rabbi Yochanan does not fundamentally disagree with Shmuel that that a minor inherently does not have a right to acquire a possession when there is no seller involved who is acting on the minor’s behalf. See Shitah Mekubetzet Bava Metzia 12b.

[26] Sukkah 42a; Nazir 29

[27] Kiddushin 29; Mishneh Torah Talmud Torah 1:6. In the Huntington 80 manuscript it adds a few words: and the first verse of the portion of Shema Yisrael.

[28] 11:19

[29] Deuteronomy 33:4

[30] Ibid. 6:4

[31] Berachot 48a

[32] Milchamot Hashem, Berachot 20b

[33] Berachot 48a

[34] End of second chapter of Megillah

[35] 3:9

[36] 5:1

[37] 6:1

[38] 7:19

[39] This is also indicated from the following ruling of Maimonides (Laws of Blessings 5:15): A son may recite grace for his father, a servant for his master, and a woman for her husband - and thus enable the person to fulfill his obligation.

[40] Laws of Korban Pesach 5:7

[41] Laws of Korban Pesach 5:7

[42] Kesef Mishnah on Mishneh Torah Laws of Korban Pesach 5:7. See Tzofnas Paneach (Hilchot Terumot 5:12) by Rabbi Joseph Rosen (1858-1936), known as the Rogatchover Gaon, who makes a distinction between specific designation of the minor and inclusion as part of the family (seh l’beit avot). In the latter the minor is merely an ancillary to the father and would have to bring a Pascal offering on the second Pesach.

[43] Talmud Torah 1:1

[44] They are in fact obligated to study all the laws that are applicable, which constitutes most of the Torah. The reason for their exemption is not to burden them due to existing familial responsibilities. The context of mentioning women together with minors and slaves is purely in relation to the limitations of their legal obligations.

[45] Huntington 80, fol. 57a

[46] Another variation is in 1:6. The Venice edition writes: At what age is a father obligated to teach [his son] Torah? When he begins to speak, he should teach him Torah tzivah lanu Moshe... (Deuteronomy 33:4) and Shema Yisrael... (ibid. 6:4). In the Oxford Huntington 80 manuscript it writes: ‘…and the first verse from the portion of the Shema’Hilchot Talmud Torah of Rabbi Schneur Zalman of Liadi also follows this version. The words ‘first verse’ (posuk rishon) is from the Talmud Sukkah 42a.

[47] They are in fact obligated to study all the laws that are applicable, which constitutes most of the Torah. The reason for their exemption is not to burden them, specifically with time-bound obligations, where they may conflict with existing familial responsibilities. The context of mentioning women together with minors and slaves is purely in relation to the limitations of their legal obligations.

[48] See S.Z. Havlin’s introduction to the facsimile edition

[49] See Yalkut Shinuei Nuschaot, Hilchot Talmud Torah 1:1

[50] Shulchan Aruch Harav, Hilchot Talmud Torah 1:1 (first published 1799)

[51] Nazir 29

[52] Kiddushin 29

[53] Mishneh Torah, Talmud Torah 1:1

[54] P. 339, Laws of Talmud Torah 1:1

[55] Deuteronomy 11:19

[56] Chidushim U’Biurim B’Shas 33

[57] End of first chapter of Kiddushin. This rationale is used to explain the view of Maimonides (Laws of forbidden relations 3:17): When a youth nine years old engages in relations with a shifchah charufah, she is given lashes and he is required to bring a sacrifice, provided that she is an adult, not a virgin, and acts willfully, as we explained. For a man is not liable to bring a sacrifice until she is liable for lashes, as [implied by] the verse: "There shall be an inquiry.... And he shall bring his guilt offering." The Ra'avad differs with the Maimonides’ ruling, maintaining that a minor is never required to bring such a sacrifice, for this sacrifice is a punishment. And since the male is not liable, the female is also not liable. Rabbi David ben Zimra in Sha’a lot u’Teshuvot Radbaz (21:94) defends Maimonides that an offering is for the purpose of atonement, not punishment. The view of Maimonides, however, indicates, as argued in Chidushim U’Biurim B’Shas (33), that Jewish law does recognize dimensions of duties and obligations upon a minor.

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