CHILDREN'S ARTWORK: To Whom Does It Belong? \ Howard Jachter

Howard Jachter

Rabbi Jachter, a frequent contributor to halachic periodicals, teaches at the Torah Academy of Bergen County

Ten Da'at, A Journal of Jewish Education, Vol. X:1, Adar 5757, Spring 1997

An essay was published in the most recent issue (no.16) of the Torah journal Tehumin regarding a most relevant question. The question is to whom the artwork, banners, posters, etc., made by children and subsequently displayed by the school, belong. The author of the article, Rav Moshe Mordechai Weller, concludes that children retain title to these items even after the child has given the artwork to the school administration to display on school property. In this essay, we shall present Rabbi Weller's argument and subsequently suggest a number of reasons why his conclusion is not necessarily correct.

I. Rabbi Weller's Argument

A. A Minor Ability to Acquire and Sell

On one hand, a minor can own objects even on a Torah level. For example, if a minor inherits property, he attains full ownership even on a Torah level. The problem is with a minor performing an act (kinyan) to acquire property. Since a minor lacks da'at (mature common sense) he is unable to make a kinyan on a Torah level.

On a rabbinic level, however, a minor who has a basic understanding of how business transactions work, (higi'a le'onat hape'utot) is able to conduct a "kinyan." The reason for this rabbinic enactment is mishum kedei hayyav, so that a minor should be able to conduct himself in ordinary purchasing and sales, such as buying or selling food. This enactment, however, applies only to movable property (metaltelin). Only when individuals become of age are their transactions of real property considered valid (Gittin 59a). The reason for this is that transactions involving real estate require a more sophisticated understanding of business transactions. (Those who have purchased or sold real estate will readily understand this rule, as they appreciate the complexity involved in a real estate transaction).

Rav Hayyim Soloveitchik explained the nature of this rabbinic enactment. On a Torah level, since a minor lacks da'at he cannot make a kinyan. A minor, however, is capable of kavanah (intention, see Hidushei Rabbeinu Hayyim Halevi to Hilchot Yibbum VeHalitzah 4:16). Accordingly, the nature of this rabbinic enactment is as follows: The rabbis enacted that kavanah is sufficient to conduct a business transaction, even though da'at is lacking.

B. A minor's Acquiring Ritual Items

The Gemara (Sukkah 46b) cites Rav Zeira who teaches an important rule regarding providing a minor with a lulav and etrog on the first day of Sukkot. The Torah requires that one have full title to the lulav and etrog he uses on the first day of Sukkot (see Sukkah 29b; this applies to the first two days for those who reside outside of Israel - see Mishnah Berurah 658:23). This presents a problem when presenting a minor with a lulav and etrog, because while he is able to attain title to objects given to him, he is not able to transfer title when he returns them (yenuka mikna kanei; akneyei la maknei).

This Talmudic passage appears to contradict the rule articulated in Gittin 59a which states that on a rabbinic level, a minor can conduct a transaction involving movable property. The Rishonim present two different approaches to resolve this problem.

The Ran (commentary to Sukkah 46b) explains that the Gemara is speaking only of a minor who has not yet reached the age of understanding the basics of business transactions. Once he has reached this age, however, the halachic conundrum described in Sukkah 46b is no longer relevant. This is because just as the rabbis granted the minor who reached a certain level of intellectual maturity the ability to acquire objects, so too can he transfer title to another on a rabbinic level. Hence, ownership to the lulav and etrog acquired by the mature minor can be transferred back to an adult. The Kesef Mishneh, commenting to Hilchot Lulav 8:10, writes that the Ran's reason is very persuasive.

The Rambam (Hilchot Lulav 8:10) seems to take a different approach. He seems to indicate that this rule applies to all minors and, hence, he does not distinguish between an intellectually immature minor and a mature minor (see comments of the Lehem Mishneh). According to the Rambam, this problem applies to all minors because a minor can acquire items on a Torah level (if others present the object to him, see Tosafot Sanhedrin 68b s.v. katan) but cannot transfer an item to someone else on a Torah level.

The Shulhan Arukh (Orah Hayyim 658:b) cites the opinions of the Rambam and the Ran. He does, however, present the Rambam as the primary normative opinion. The Bi'ur Halacha (s.v. lo yitnenu) provides an analysis and application of this dispute between the Rambam and the Ran. Rabbi Weller does not note, however, that both the Rambam (chapter 29 of Hilchot Mekhirah) and the Shulhan Arukh (Hoshen Mishpat 235) do not limit the ability of a mature minor to conduct none-ritual transactions involving movable property. A mature minor is able to transfer title of a movable item, even if that item was sold or presented to him by an adult.

C. Craftsman Acquiring Title (uman koneh beshevah keli)

The Gemara (Baba Kama 98-99) presents a dispute among the Amoraim whether a craftsman acquires some title in an object given to him by a client to which he then made significant improvements (see Ketzot Hahoshen 306:4). For example, if a craftsman was given a piece of wood and commissioned to make a chair, the rabbis of the Talmud debate whether he acquires title to the chair. The Rishonim continued the debate and disagree as to which opinion is correct. The matter is not unambiguously resolved in the Shulhan Arukh either (see Yoreh De'ah 120:10, Even Ha'ezer 28:15, and Hoshen Mishpat 306:5). The Shakh (Hoshen Mishpat 306:3) concludes that this matter is not resolved and remains in doubt (sefeika dedina). The Arukh Hashulhan (H.M. 306:4) is inclined to interpret the Shulhan Arukh as ruling that the craftsman does not acquire title to the object he fashioned.

D. Rabbi Weller's Argument

Rabbi Weller seeks to prove the opinion held by many Aharonim (Pnei Yehoshua Gittin 22b, Ketzot Hahoshen 306:4, and Netivot Hamishpat 306:3) that the rule of uman koneh beshevah keli applies to a minor as well. He writes that even though many Rishonim believe (unlike the aforementioned Rambam) that a minor does not acquire title on a Torah level even if an adult sells him an item (da'at aheret maknah), nevertheless the artwork of a child belongs to the child on a Torah level. This is because, as Rabbi Weller endeavors to demonstrate, the product of one's hand becomes his automatically without a need to perform a kinyan on that item. Accordingly, since a minor can own something on a Torah level and he is restricted only in his ability to perform a kinyan, the product of a minor is considered to be owned by the minor on a Torah level.

The minor, however, is unable to transfer title on a Torah level even if he is a mature minor. Certainly a minor who is not intellectually mature cannot transfer title to another even on a rabbinic level. Therefore, argues Rabbi Weller, even if a minor presents his artwork to the school for display, the minor still is the owner of the artwork. According to this approach, if a minor demands the school return his artwork, the school must accede to his wishes. It would seem that even if he demands the object after he becomes an adult, the school must surrender the artwork, since the school never acquired title to it.

II. The Arguments Against Rabbi Weller

Rabbi Weller's argument runs counter to what appears to be common practice. This author believes that at least four arguments can be put forth to say that the school did acquire the artwork or that, at the least, the school is not required to relinquish the artwork if the child demands it.

Argument #1: The Shakh and Arukh Hashulhan

As we have mentioned it is not at all certain that halacha accepts the opinion that uman koneh beshevah keli. The aforementioned Shakh concludes that the issue remains undecided. Hence, the Shakh writes, if the craftsman is in possession of his work, he is not required to relinquish possession of the work because he may actually have acquired title to it. The reverse situation is true as well. If the school is in possession of the artwork, then the school is not required to surrender the artwork; perhaps the halacha believes that the artist does not achieve title to his artwork, if the raw material was given to him by his client.

The basis for this approach is a cardinal rule in Jewish jurisprudence: hamotzi mehaveiro alav hare'ayah (see Baba Kama 46a). This means that one who seeks to remove something from another's possession has the burden of proof set upon him. In other words, possession is nine-tenths of the law. This approach regarding our issue is certainly true according to the Arukh Hashulhan, who is inclined - as we have seen - to believe that the position of Shulhan Arukh is that an artisan does not acquire title to the object he greatly improved.

Argument #2: The Ketzot Hahoshen

The Ketzot Hahoshen (306:4) asserts that the rule uman koneh beshevah keli does not apply when the artisan does his work pro bono. The Ketzot asserts that the artisan's kinyan parallels the kinyan a creditor has on a debtor's collateral (according to Rav Yitzchak, see Pesahim 31b). In both cases, writes the Ketzot, the title is of a limited nature. It applies only until the client or debtor has satisfied his obligations. The creditor's and artisan's partial title is nullified at the time of payment. Accordingly, if the artisan is providing a pro bono service it is regarded as if he were already paid and thus acquires no title to the object he worked on.

The application to artwork done by students is obvious. If they do not receive payments for their artwork (as is almost always the case) they do not acquire title to the product they produced. It should be noted that the Ketzot does not distinguish between an adult or a minor artisan regarding this matter.

Argument #3: Netivot

The Netivot (306:3) offers two answers to a celebrated question posed by the Pnei Yehoshua in his comments to Gittin 26b. the Mishnah in Gittin states that a minor is eligible to write a get. The Gemara places significant limitations on the eligibility, but the Pnei Yehoshua poses a fundamental problem regarding the eligibility of a minor to write a get by posing the question whether the minor should attain title to the get after writing it, according to those who believe that uman koneh beshevah keli? He queries: How can the husband subsequently acquire title to the get if the Gemara in Sukkah states that a minor cannot transfer title to another?

The Netivot offers two answers, which are also relevant to the issue we are discussing. The first is that the Mishnah in Gittin is speaking of a mature minor whom Hazal enabled to conduct business transactions. In this case the minor can transfer title to the get to the husband. In our situation as well, if the minor is intellectually mature, he is able to transfer title of his artwork to the school. It should be noted that the Netivot seems to assume (unlike Rabbi Weller) that a minor who acquires title by virtue of uman koneh beshevah keli, acquires title only on a rabbinic level; otherwise he could not transfer title of the get to the husband by virtue of a rabbinic enactment.

The second approach is that if the husband provides the minor scribe with the writing material (which is standard procedure in contemporary rabbinic courts) then the opinion that uman koneh beshevah keli does not apply according to all opinions. This is based on a case that appears in Baba Kama 99a where the client provides the artisan with wool and dye and the artisan merely places the wool in the dyeing vat to produce dyed wool. The expenditure of effort and improvement of the produce is insufficient to claim that by virtue of his improving the product the artisan acquires title to the product. Similarly the Netivot argues that writing a get with the husband's paper and ink is not sufficient reason to say uman koneh beshevah keli.

In our situation, if the school provides the minor with the materials to create a banner or mural, it is reasonable to say that the child's product is almost always not of such professional quality that merits his acquiring title to the object.

Argument #4: The Hazon Ish

The Hazon Ish (Baba Kama 22:8) suggests that the basis of the opinion that uman koneh beshevah keli is sheyardah Torah leda'at benei adam, lefi hane'ot behanhagot ha'olam (Torah anticipates human reasoning according to ordinary civil procedures); i.e., that this rule is based on commonly understood expectations between the artisan and the individual who commissioned him to do the work. In other words, the artisan achieves a degree of title in the work due to a common understanding of appropriate conduct.

It is possible to suggest that this is the basis for the Gemara's (Baba Kama 99a) assertion that the artisan who is provided with wool and dye does not achieve title as a result of dyeing the wool. It is understood that this is insufficient labor and skill to merit gaining some title to the wool. It also appears to be the reasoning of the Pnei Yehoshua's answer to the aforementioned question he posed regarding a minor's eligibility to write a get. He answers that the minor does not acquire title to the get because he does not intend to acquire title to the get.

Indeed, this seems to be the basis of the practice of almost all rabbinic courts in North America where the husband is not instructed to acquire the get from the scribe after the latter writes it, because of a concern that the scribe acquired title to the get according to those who believe that uman koneh beshevah keli does not apply automatically (as Rabbi Weller argues) but rather depends to a great extent on the intention of the artisan. A ramification of the Hazon Ish's suggestion is that uman koneh beshevah keli is not automatic, but rather is subject to variables such as society's perception of proper conduct and (according to our extension of the Hazon Ish's argument) the intention of the artisan.

According to this approach, there should be no reason to say uman koneh beshevah keli when minors create murals or banners for school projects. They almost always do not intend to keep it for themselves, and hence the thought of their acquiring title to their artwork is not a relevant consideration for these children.

Conclusion

It seems that Rabbi Weller's argument is not conclusive. Perhaps his argument is relevant in a situation where the child refuses to give his artwork to the school. In that case, since the child possesses the object and seems to have intended to keep the object, according to the first and fourth arguments we suggested it would seem that the article should remain in the possession of the child. However, if the school provided the materials and if the child is not being paid for the work, then we do not say he attains title to his artwork. This matter should be adjudicated by a competent halachic authority, should the situation arise.