Siman 343

The Rambam wrote at the end of the laws of forbidden foods: "A minor who ate one of the forbidden foods or who performed labor on Shabbat—beit din is not commanded to separate him, because he is not of sound mind. In what case are these words said: when he acted on his own, but to feed him by hand is forbidden, and even things whose prohibition is from the words of the scribes, and likewise it is forbidden to accustom him to the desecration of Shabbat and festivals, and even in things that are due to shevut. And even though beit din is not commanded to separate the minor, it is a mitzvah upon his father to rebuke him and separate him in order to train him in holiness, as it is said: 'Train the youth etc.'" Thus far his words. And there is one who wishes to say that one is not obligated to train his daughter, and likewise the mother is not obligated in the training of her son (see Magen Avraham, subsection 1). And we have already clarified in another place that it is not so, and also the mother is obligated in training, and also for the daughter one is obligated to train. However, the Rambam is dealing here with a minor who has not reached the age of chinuch, for once he has reached the age of chinuch, are we not obligated to train him in mitzvot, and all the more so that we prevent him from prohibition, and so wrote our teachers, the authors of the Tosafot in Shabbat (121a), see there.

This is what our teacher, the Rema, wrote in this siman: "And some say that all this applies to a minor who has not reached the age of chinuch, but if he has reached the age of chinuch—they must separate him. And some say that chinuch does not pertain to the beit din, but only to the father" thus far his words, and certainly regarding an orphaned minor, chinuch pertains to the beit din. And what is the measure of chinuch: every minor according to his sharpness, and generally it is when he understands the matter. But as long as he does not understand the matter—he is not included in chinuch, and so it is explained from the language of the Shas at the end of the third chapter of Sukkah, which says there: "A minor who knows how to wrap himself—is obligated in tzitzit" see there, and the law of a minor kohen becoming impure to the dead we explained in Yoreh Deah siman 373, see there. And know that in a matter from which a stumbling block may arise, such as the blowing of the shofar where the sound is heard from afar, and therefore when a minor blows on Shabbat—the beit din is commanded to separate him, and so too anything similar to this (Magen Avraham).

It is stated in Shabbat (90b) that it is forbidden to give a child a live impure grasshopper to play with, lest it die and he eat it. And even something that involves only the prohibition of "bal teshaketsu" is forbidden to give into his hand (ibid. subsection 3), for to feed him by hand is forbidden even regarding a rabbinic prohibition, and "bal teshaketsu" is rabbinic, as the Rambam wrote at the end of Ma'akhalot Assurot, see there; and when one gives it to him, it is like feeding him by hand. However, an impure bird—it is permitted to give it to him to play with, for when it dies it is not fit for eating, and so too anything similar to this (ibid.). Our teacher Yerucham wrote that one should not protest against gentiles who feed a child forbidden food, but it is forbidden to tell them to give the child forbidden food, unless the child needs this and is somewhat ill, for then it is permitted to ask them to feed him. Therefore, it is customary on Pesach, when the child does not want to eat matzah and becomes weak because of this, to ask the gentile to take him to his house and feed him chametz (ibid.). And it is obvious that for what the child requires—the Israelite gives to him with his own hands, such as feeding him on Yom Kippur and the like (ibid.). And it is proper to accustom a minor to a matter of mitzvah and to distance him from transgression, and all the more so from speaking lashon hara and gossip and falsehood so that he does not become accustomed to this, for afterwards when he grows up it will be difficult for him to separate from this. And a fortiori in this time, that one must pay attention to minors so that they do not break through boundaries, for if they leave them in their youth they will certainly do so in their adulthood in our lowly generation where it is not in our power to protest, and while he is a minor it is possible that he will listen to our words, and automatically also afterwards he will accustom himself to the good and straight path.

Our teacher, the Rema, wrote: That a minor who struck his father or committed other transgressions in his youth, even though he does not require repentance when he grows up, nevertheless, it is good for him to accept something upon himself for repentance and atonement, even though he transgressed before he became subject to punishment. Thus far his words. (See Rashi, Bava Kamma 98a, regarding that case where Rafram compelled Rav Ashi; and see Turei Zahav, subsection 2).

And know that the Rambam in chapter 24 of Shabbat, law 11, wrote: "A minor who performed an act on Shabbat that is a shevut, such as picking from a flowerpot that is not perforated or carrying in a karmelit—beit din is not commanded to separate him, and likewise if his father left him, they do not protest against him." Thus far his words. And the Maggid Mishneh and the Tur already raised a difficulty against him: how could he write this only regarding a shevut, for we maintain that even if he eats nevelot we are not commanded to separate him, as he himself wrote at the end of Ma'akhalot Assurot, as was written in section 1. Furthermore, regarding Shabbat itself, he wrote in chapter 12 concerning a fire, that a minor who extinguishes on his own accord does not need to be separated, see there, and according to the Rambam, extinguishing on Shabbat is a melakhah from the Torah. And even though it is a melakhah she-ein tzerikhah le-gufah, he ruled in chapter 1 like Rabbi Yehuda that one is liable for an ein tzerikhah le-gufah. And our teacher, the Beit Yosef, answered that what he wrote regarding shevut, this is regarding what he concludes, that if his father left him they do not protest against him, and in this it is specifically regarding a shevut, for regarding a Torah prohibition they do protest against him, see there.

And based on this, our teacher, the Rema, wrote regarding what our teacher, the Beit Yosef, wrote—that his father is commanded to rebuke him and separate him—he wrote: 'from a Torah prohibition,' to indicate that from a rabbinic prohibition one does not need to separate him. And these matters are astonishing, for we explicitly brought the words of the Rambam in section 1 that his father is commanded to rebuke him and separate him. And there is one who wrote that his intention is that the beit din does not protest against him when he does not rebuke him (Magen Avraham, subsection 2), and this is even more astonishing, for our teacher, the Beit Yosef, did not mention at all this matter of not protesting against him, see there, and furthermore, from where do we have the authority to make a distinction in this. And there is one who wrote that here the Rambam is dealing with a minor who has reached the age of chinuch, and in all other places it deals with one who has not reached the age of chinuch (Bach). And it is a wonder to make a distinction between identical wordings, and furthermore, regarding one who has reached the age of chinuch, why should we not separate him even from a shevut prohibition.

Therefore, it appears in my humble opinion that behold, regarding a minor eating nevelot, we say in Yevamot (114a) that one is not required to separate him, and we do not distinguish between whether he acts on his own accord or acts on his father's accord; and so too the Rambam there. Why then does the Shas in Shabbat (121a), and so too the Rambam in chapter 12 regarding extinguishing a fire, distinguish between whether he acts on his own accord or acts on his father's accord, when certainly in all prohibitions there is this distinction? However, the way of the matter is this: that in matters of eating where he has a desire, he certainly eats on his own accord, whereas regarding Melachah of Shabbat where there is not such a desire, in this we must investigate on whose accord he acts; and therefore regarding extinguishing a fire, the Shas and the Rambam commanded to investigate this. And this is regarding a Torah prohibition, but regarding prohibitions of shevut we are not required to investigate, and we say that presumably he acts on his own accord. And this is what the Rambam innovated here, that a minor who performs a matter on Shabbat that is a shevut, the beit din is not commanded to separate him, meaning that we do not have to investigate whether perhaps he acts on his father's accord. And therefore he concludes: "And so too if his father left him—they do not protest against him," meaning that seemingly, since his father left him, he presumably acts on his father's accord, for if not so, he certainly would have protested against him; nevertheless, since this is only a shevut, we are not responsible to investigate this, and we say that he acts on his own accord.

And so it appears in my humble opinion to be the primary ruling regarding a minor who has not reached the age of chinuch who performs a prohibited labor on Shabbat, and we do not know if he does so of his own accord or at the behest of his father or at the behest of others: if it is a Torah prohibition—we must protest his action, and we say that presumably he does so at the behest of his father or others, unless we know clearly that he does so of his own accord. And if it is among the shevut prohibitions, we say that presumably he does so of his own accord, and we do not protest his action unless we know clearly that he does so at the behest of his father or others, for then we must protest his action. (And with this one may resolve what the Beit Yosef and the Bach questioned regarding the Rif and the Rosh, who omitted the entire sugya of the Shas there in "Kol Kitvei" regarding a minor who comes to extinguish, because they hold that presumably we say he does so at the behest of his father and we must protest his action, and delve into this.)