A reasonable way to face to problems that tort liability of children
involves seems to take the role that the child is going to play in tort law
as the starting point. Accordingly the child can play (a) the role of the
tortfeasor and (b) the role of the victim. The problems that one and the
other role involve are quite different.
With regard to tort liability of children there are at least four crucial
questions which must be examined in the different legal systems:
Whether children are
directly liable for the damage they cause and whether there is any age limit
below which they have no tortious capacity and, therefore, they are
exonerated from liability;
If in spite of their lack
of tortious capacity, for reasons of equity can children be held liable in
exceptional conditions and which are or should be these conditions.
What is the relationship
between liability of children and liability of other persons, such as
parents or guardians, who will be held responsible for them and how are
their corresponding liabilities organised (whether it is a subsidiary or a
direct liability, and in this last case, whether these persons are held
jointly and severally liable with the child who has caused the damage).
Finally, whether the
general answers that the legal systems give to these questions are kept up
in all areas of tort liability and in all situations or, on the contrary,
follow different rules in areas that have special features (for instance,
when specific dangerous or risky activities are carried out) or when damages
are covered by a certain sort of insurance. A different step in the analysis
will investigate whether technological changes and a shift to an expanding
information society is, or is not, asking for changes of the legal paradigm
One of the first questions that arise is whether the trend of adopting
child-friendly rules that can be observed in other areas of law applies also
to tort law. In order to ascertain whether this trend exists several aspects
must be taken into account.
Speaking generally, it seems that one must admit that the general attitude
towards children in the continental European legal systems is protective.
Bearing in mind the lack of capacity of children who cause damage, there is
a general trend that in order to protect children tries to exempt them from
liability. However, beyond this general trend there is no common accepted
age limit below which this exemption occurs. Moreover, not all European
legal systems include in their laws a fixed age limit and, when they do,
this limit is not the same. Thus, for instance Portugal (Art. 488 II Código
civil) fix this minimum age at 7 (although only to reverse the burden of
proof of capacity). In Greece the limit is set at the age of 10 (Art. 916
Greek Civil code), whereas in The Netherlands (Art. 6:164 BW) it is
established at the age of 14.
On an opposite position, the starting point of some
European legal systems is the absolute or almost absolute tort liability of
children. So in France, for instance, after a set of decisions issued in
1984, children are held liable in tort although they have no ability to
reason. Their ability “to distinguish between good and evil” (discernement)
is of no relevance, as their acts must not be measured up to the regular
behaviour of other children of the same age but to the standard of a
reasonable adult person. As long as the act committed can be considered
negligent under this objective point of view they will be liable in tort.
Other legal systems adopt a middle way between both models. Instead of
considering that there cannot be liability under a certain age or that there
is absolute liability regardless of the age of the child they carry out a
case-by-case analysis. What is relevant is whether the child was able to
understand what damaging another person meant. This is the system followed
in Italy where, on the grounds of Arts. 2043, 2046-2048 Codice, it is
held necessary to decide the issue case by case according to ability
d’intendere o di volere of the child. Something similar happens in Spain
with regard to the liability system established by
Arts 1902 et seq.
Código civil, where liability of children depends on their tortious
capacity. However, what happens regularly is that liability falls on their
Art. 1903 I Código Civil) and, according to legal
writing, only secondarily on the child itself.
Under Austrian law,
children under fourteen years of age are generally not responsible for
tortious acts (§ 153 ABGB). But this limit is not as relevant as it looks at
first sight: Persons under fourteen years of age are merely presumed not to
be responsible and it is up to the claimant to prove that in the individual
case the minor had enough judgement to be held responsible. Nevertheless,
the minor’s liability is subsidiary to the liability of the parents (§ 1309 ABGB) and the minor is not always obliged to compensate for the entire loss
(§ 1310 ABGB).
A different and intricate question arises in those legal systems, such as
the Spanish or Italian one, where their Penal Code contain a different
regulation and, in contrast to their Civil Code regulation, establish a
fixed age limit (for instance 14 years old according to Art. 97 of the
Italian Penal Code). In these cases legal writing and courts have serious
problems when trying solve the puzzle of fitting one regulation in the
other. In Spain the question is specifically complex and has given rise to
an endless legal debate. Unfortunately , the recent Ley Orgánica de
responsabilidad penal de los menores (Organic Act about Criminal
Liability of Minors [LORPM])
has not solved the problem. Even after this Act tort law, unlike criminal
law has no fixed age for capacity.
The tortious capacity of children depends on their maturity of judgement.
However, there is some agreement that a certain capacity must be presupposed
in those minors who are close to the legal age, although no clear borderline
is drawn and legal doctrine refers the solution of the problem to the
circumstances of the case.
If the wrongful act amounts also to a crime or to a misdemeanour the Organic
Act about Criminal Liability of Minors [LORPM]) provides that, according to
this Act, minors are liable in tort for the damage caused —jointly and
severally with their parents, guardians, keepers or custodians— but only if
they are over 14 years old (art. 61.3 in connection with art. 1.1 LORPM).
If minors are under 14 the provisions of the Act do not apply, but this does
not mean that minors are not liable in tort but only that their tort
liability will be established then according to the general provisions.
The approach adopted in German law amounts to a mixture of all of the
elements explained above. To begin with,
§ 828 para 1 BGB stipulates the age
of 7 as the ultimate threshold below which a child is not liable for damages
it caused, regardless of its mental capacities and capabilities. Currently,
a new federal regulation exists at the parliamentary level pursuant to which
the age limit would be raised from 7 to 10 years with respect to minors
involved in motor accidents as well as accidents involving trains and cable
railways (Zweites Gesetz zur Änderung
schadensersatzrechtlicher Vorschriften (19
February 2001). However, it would be incorrect to conclude that a child
older than seven is always held accountable for its tortious behaviour.
Rather, between ages 7 and 18, during which the minor matures towards
adulthood, the question of liability for damages resulting from tortious
conduct is based upon the particular child’s capacity to understand the
wrongfulness of its behaviour and to act accordingly. The German criminal
law adopts the same two-tier-approach to minors but stipulates a different
age as the threshold for criminal liability. Pursuant to Sec. 19 of the
Penal Code (Strafgesetzbuch), the relevant age is 14, while offenders
between 14 and 18 years of age are to be scrutinized on a case by case basis
in order to establish responsibility for their criminal acts. These rules of
criminal law are also relevant for tort law since
Sec. 823 para 2 BGB
establishes private liability on a person offending a criminal law aimed at
protecting individual rights.
A fundamental precondition of fault liability of children
is in all systems the proof of the ability of reason of the child, i.e. of a
sufficient capacità d’intendere o di volere, as it is understood by
Arts. 2046 and 2047 Codice civile italiano. However this point raises
the question of what must be understood under “ability of reason”. Whereas
in some systems it would seem that the ability to reason refers only to the
ability to act voluntarily in accordance with this intellectual
understanding in others it seems to be more strict and require also the
ability to see his or her responsibility as a result of his dangerous
conduct, i. e. that the child recognizes somehow that he has the duty
of taking responsibility for his actions. The answer to this question is not
petty, for in the second case the tendency is to confine liability of
children to children who have already reached adolescence, as these will be
the only ones who, due to their maturity of judgement, will be really aware
of the results of their actions.
A different question arises in relation to the standard of care that
children have to meet in order to escape liability. If their behaviour is
measured up according to the general standard of the reasonable person that
is required from an adult, i. e. that of the bonus paterfamilias, it
seems clear that the law places on them a burden that might be too heavy.
Other systems, as the English one, relate the standard of care that the
defendant child has to meet to the behaviour of a child of a similar age and
acting in similar circumstances. In this system a young child will probably
escape liability for negligence unless he acted in a way other than that in
which an “ordinary” child of the same age might be expected to act.
Moreover, he will probably be incapable of forming the necessary state of
mind for liability in torts involving negligence or malice. For this reason
it will be necessary to ascertain whether to answer given by the English
system is more acceptable and to what extent it would be the most convincing
one in order to foster his protection.
The researchers of this Project will have to consider whether the so called
liability in equity is useful or not and to what extent. Liability in
equity has a legal regulation in some European systems and, under certain
circumstances, allows the victim to obtain some sort of compensation from
the tortfeasor child in spite of his lack of tortious capacity and taking
into account that otherwise the victim would go uncompensated (cfr.
§ 829 BGB,
§ 1310 ABGB, art. 2047 Codice).
The acceptance of liability in equity entails the necessity to analyse which
are its conditions and which are the circumstances in which it should apply.
Moreover, considering that it does not amount to full compensation of the
damage sustained but only to a fair compensation in equity the study of the
different elements that will have to be taken into account by courts when
assessing its amount becomes compelling. So for instance the weight that
must be given to the degree of causal contribution of the child, the
magnitude of the damage sustained by the victim, the financial situation of
both parties, the existing coverage of the damage sustained by other devices
such as liability insurance covering the minor or indemnity insurance or
social security insurance of the victim, the bearing of an eventual
contributory negligence of the victim, etc.
When analysing the different legal systems it seems clear that under certain
circumstances liability of children entails also liability of those persons
who have the duty to supervise them. Among these persons there are not only
the parents but also tutors, guardians, teaching institutions and other
persons who take care of the child either on a permanent or on a temporary
basis (so for instance, Art. 1903 Código civil).
Therefore it will be necessary in this Project to study the liability
regimes of all these groups of persons who are bound up with these duties of
supervision, as well as the relationships between their liability and an
eventual liability of the child itself for the causation of the same damage.
In practice the question is quite problematic, mainly if we bear in mind
that what happens more often is that parents, tutors, guardians and other
persons who have a duty of supervision are finally held liable either
because the child has no capacity or because, even being capable, he has no
solvency to meet the obligation of compensating the victim. In these cases:
the relationship between the child and the supervising persons who have to
compensate the damage?
the different legal systems deal with those cases where together with the
liability of the parents, tutors or guardians the teaching institutions in
charge of the child when the damage occurred could also be held liable?
the rule of liability in these cases: are all of them primarily liable and
if so jointly or severally liable or not?
some of them only secondary liable?
is the best liability rule considering the need of protecting childhood?
this solution be compatible with the necessary protection of the victims?
parents and other supervisors recoup the compensation that they have paid
from the child?
theses actions of recoupment carried out in practice?
regard to recoupment, should there be any difference between parents and
other supervisors (guardians, teaching institutions, etc)?
In this area it will be necessary to analyse the liability regimes of the
parents in the different legal systems and whether these systems operate
according to the traditional fault liability for culpa in vigilando
or in educando or whether they introduce corrective measures to
increase the number of situations in which parents will be held liable. So,
for instance, by introducing a rebuttable presumption of fault liability, as
German law does in § 823 II BGB, or by making the conditions of their
liability (something which courts in some countries do) or by making
their conditions of liability so harsh that they can hardly ever escape from
liability, being thus in practice a sort of strict liability (as, for
instance, in Spain).
It must also be found out whether liability of the parents is related or not
to the tortious capacity of the child and which are the possible results of
this connection (for instance, liability of parents only when children have
capacity or, the other way round, only when the have no capacity).
A last question in this part will be to analyse how the different legal
systems deal with the problem of ascertaining who is the person who will be
held liable for the child when the parents are separated or divorced, or
when children are temporarily together with other relatives such as
grandparents or adult brothers or sisters. In a similar way it must be
examined who will be liable for the damage caused for children during the
time that they are not under the protection of any adult or institution.
Under this point the research team should analyse the answers that the
different legal systems give to the cases of liability of tutors and
guardians for the acts of their wards and give answer to the questions that
it raises, such as:
legal systems under consideration offer a similar answer?
these the same answers as in the case of liability of the parents for their
are their conditions?
there any difference between the liability of tutors and guardians of
children and tutors and guardians of insane persons?
answers the same when the tutor or guardian is a legal entity (the so called
In this last case it is also important to ascertain whether the liability
regime of tutors and guardians is different when the person in charge of the
child is a public institution as, for instance, occurs in Spain, where
liability of public institutions acting as tutors is governed by the general
rules of public authorities set forth in Arts. 139 et seq. of the Ley
30/1992, de Régimen Jurídico de las Administraciones Públicas y
Procedimiento Administrativo Común (LRJAP), which establishes a strict
liability regime. Similarly, in Austria state liability for the wrongs of
public servants is governed by a specific statute, the Official Liability
Act (Amtshaftungsgesetz); but liability is based on the misconduct of the
As in the previous case this Project will analyse which is the liability
regime of teaching institutions for the damage caused by their underage
pupils. In this area it is of relevance to establish the scope of this
teaching staff is personally liable or not and if so, according to which
liability regime (strict liability, fault liability for
culpa in vigilando [with/without
reversal of the burden of proof]).
the teaching institution is primarily or subsidiary liable and, in the first
case, whether it can recoup from the teacher who caused the damage and under
which conditions (for instance, in Spain, according to
Art. 1904.2 Código
civil, recoupment is only possible if the teacher acted with intent or gross
With regard to the scope of liability it is important to specify the extent
of the liability of the teaching institutions:
they liable only for damage caused in the course of activities carried out
in the school or also for other activities carried out outside the school
they liable for the damage caused by children while being transported from
their homes to the school?
possible that parents and teaching institutions are held jointly and
severally liable for fault (culpa in vigilando or in
Finally it must also be analysed whether the liability regime is the same
for private teaching institutions as for public ones or, as it happens in
Spain and Germany, whether it differs to a significant degree. So, for
instance, in Spain when the teaching institutions depend on public
authorities their liability for damage caused by children is strict and
governed by Arts. 139 et seq. of the Ley 30/1992, de Régimen Jurídico de
las Administraciones Públicas y Procedimiento Administrativo Común (LRJAP),
as amended by Ley 4/1999, of 13th. of January. In Germany, the liability of
private schools is governed by the general provision of § 832 para 2 BGB,
conferring liability upon any entity which has contractually assumed
responsibility for the supervision of the child. In contrast, public schools
and universities are subject to the provisions governing the tortious
liability of the state and other public entities, i.e.
§ 839 BGB,
Art. 34 Grundgesetz. As of yet, this asymmetry has not been the focus of research,
and thus it remains to be explored whether the differences in approach also
yield different results.
It is clear that all the above lines of investigation should be tested also
with regards to technological developments and education of minors. Indeed,
the expanding role of computer usage also in teaching, education and
entertaining open room to different ways of causing damages. Once again,
children are the target of the most possible damage both as material source
or as victims of it.
When the child is considered from the point of view of a victim who has
suffered a damage the question that arises is how his capacity will affect
his relationship with the tortfeasor. In this area one of the main issues
will arise when the conduct of the child has also contributed to the
damaging result, i.e. when there is contributory negligence of the child as
a victim. The bearing of his ability of reason on his or her contributory
negligence will increase the hurdles that the exam of contributory
negligence already presents.
rule and the plurality of standards
Firstly it should be tested whether it is possible to establish a general
rule in this area and if so, whether it should stand for relevance or for
irrelevance of contributory negligence of the child. However it is very
likely that the existence of a general rule does not entail an absolute rule
and thus that it allows exceptions. Rule and exceptions should be analysed
in detail, bearing in mind that whereas in some legal systems the regulation
is set forth by legislation in others the rules have been developed by the
courts. Even in the first case, i. e. when statutory rules are available, it
will be necessary to check to what extent the courts have developed these
rules and whether this development is fully in accordance with the primary
In those legal systems that admit the relevance of the contributory
negligence of an underage victim it will be necessary to verify which is the
standard of care that applies in these cases. Or in other words, whether it
will be sufficient to assess that the child has acted in a manner that can
be qualified as “objectively negligent”, regardless of his actual ability of
reason or whether his ability of reason becomes a condition of liability of
paramount importance. In the first case, as it occurs under current French
Law, the rule will be that it is irrelevant whether the minor was
subjectively capable of discerning the consequences of his actions and his
standard of care will be defined objectively, i.e. with regard to that of an
ordinary adult reasonable person, in order to assess his conduct.
In the second case it will be necessary to check whether the devices that
the legal systems use when dealing with tortious liability of children are
also suitable for the problems arisen when the child is the victim.
Contributory negligence of the underage victim presents still the question
whether the defendant who caused a damage to a child can use the lack of
care of his parents or guardians in his supervision as a defence in order to
obtain a reduction of the compensation that he will have to pay.
In all likelihood the identification of children with the fault of their
parents or guardians it is not under discussion when parents and guardians
are plaintiffs who act solely for themselves (iure proprio). However
in many cases parents will not act only for themselves but also as legal
representatives of the child who has suffered the harm and in this case
identification seems more problematic and merits closer examination. If the
rule adopted stands for identification it will be necessary to establish the
conditions under which it will occur. Will it be a general rule or will
identification be confined to certain situations as for instance when there
was a previous contractual relationship between the underage victim and the
tortfeasor as in Austria (§ 1313a ABGB)? If fault of the persons who have a
duty of supervision reduces compensation, will then the child be able to
claim this part of damages from his parents or guardians on the grounds of
their infringement of their duty of supervision?
Finally the team working on this Project should consider whether it would be
necessary to establish specific rules for contributory negligence of
children in the framework of strict liability regimes. The basic issue at
stake here is to discern whether the fact that the tortfeasor is strictly
liable has no relevance with regard to contributory negligence of the
underage victim and, accordingly, it does not prevent the application of the
general rules on the subject or, on the contrary, whether it calls for
specific rules that exclude contributory negligence. In this last case it
must be examined whether contributory negligence of children should be
governed by general specific rules in all cases of strict liability or
whether these specific provisions should refer only to accidents that stem
from certain sources of danger. Special attention will be paid in this point
to regulation of road-traffic liability.
Under the present German law, contributory negligence of children is a
defence even if the tortfeasor is strictly liable, as it is with respect to
cases involving motor accidents. However, the proposed legislation of the
Zweite Schadensrechtsänderungs-gesetz is meant to mitigate the
detrimental effects this approach carries for the victim child. This result
is to be achieved in a rather indirect way: Since the standard of capacity
is the same, both for the issue of liability and for the issue of
contributory negligence, children below the age of 10 will no longer be held
accountable for their negligent behaviour contributing to the accident. The
driver subject to the strict liability standard maintains a defence against
the victim only if the child acted with intent.