Doctor iuris, Lecturer of Civil Law, University of Tartu
Meaning of Fault with regard to Liability for Damage Caused by the Unlawful Action of Another Person
It should be a self-evident, seemingly natural rule that everyone is liable only for the damage they themselves have caused. However, there are situations in which society considers it just and necessary to place the burden of liability for the damage caused by one person on another person. Such solutions are justifiable when the person causing the damage and the person held liable are, on some level, closely interrelated. As regards liability for delicts committed by other persons, four types of cases in particular can be pointed out: the other person exempted from liability can be a minor without delictual capacity, a person without delictual capacity due to a disability, a minor with delictual capacity, or a service provider1.
This article is aimed at analysing the requisites for one person's liability for the delict of another. The main attention is still directed to the element of fault as one of the primary requisites for liability in the law of delict. In other words, this article studies the question of whether one person's liability for a delict committed by another person will require culpability of the tortfeasor, culpability of the person responsible for the damage or a possibility of blaming them both. Naturally, an assessment is also provided with regard to the question of which solution is justified in view of the subjective element of liability.
The problems raised here are equally interesting to jurists of all countries regardless of the legal system or the law family. In order to provide answers to the questions, the author will analyse and compare, above all else, the respective provisions in the Estonian Law of Obligations Act 2 (LOA), the German Civil Code 3 (BGB) and the draft European Civil Code 4 (ECC). At present, analysis and evaluation of the above mentioned project should, in particular, be one of the (most important) tasks of jurists in EU Member States.
This article is composed of four chapters: according to the above-mentioned cases, in which one person is liable for the delict of another, the meaning of the subjective element in the case of liability for delicts committed by minors without delictual capacity is addressed in the first part, liability for delicts committed by persons who do not have delictual capacity due to disability is detailed in the second part, liability for delicts of minors with delictual capacity is discussed in the third part and the element of fault in the event of the service user's liability for a delict of the service provider is analysed in the fourth part of the article.
It can be regarded as a generally recognised principle that until a certain age, persons are not liable for damage caused by them. In accordance with LOA § 1052 (1), a person under 14 years of age does not have delictual capacity5. Although a minor without delictual capacity may be obliged to compensate for damage, under the so-called equitable liability (see, e.g., LOA § 1052 (3) and ECC article 3:103 (3)), we must nevertheless take into account the fact that liability for damage caused by a minor without delictual capacity is borne, first of all, by other persons: usually the parents or the guardian6. There is still the question whether the liability for acts by a person who does not have delictual capacity due to age should be incumbent on other persons on the basis of fault or independently of fault.
In § 454 (1) of the former Civil Code of the Estonian Soviet Socialist Republic 7 (CCESSR), liability for delicts committed by minors (of up to 15 years of age) without delictual capacity was made dependent upon culpability of the parents (adopters) or the guardian. In accordance with CCESSR § 454 (2), liability for damage caused by a minor without delictual capacity could also be borne by an educational, child care or medical institution if the minor caused the damage while being under the supervision of such institution. Those institutions were exempted from liability if they proved that the damage had not been caused due to their fault. The Soviet legal theory held the prevalent position that parental fault (primarily in the form of negligence) was constituted by a failure to fulfil, or a negligent fulfilment of, the parental duty of supervision8. As a rule, the question of fault of the legal representatives of a minor without delictual capacity has not been at issue in judicial practice9. Thus we can assume that it was virtually impossible for the parents to prove that they were not at fault. Rules similar to those of CCESSR § 454 have been established by § 1073 (1) to (3) of the Civil Code of the Russian Federation 10 (CCRF)11.
In accordance with BGB § 832 (1), liability for damage caused by a minor without delictual capacity will be borne by the persons who have the duty of supervision12. The parents must exercise the supervision under BGB § 1626, and poor performance of supervision is also an expression of the parents' fault. In accordance with the second sentence of BGB § 832 (1), the obligation to compensate for damage will not be applicable if the parents can prove that the supervision was sufficient or that the damage would have been caused even in the case of due supervision. The degree of due supervision is determined according to the age and characteristics of the minor13. Well-recognised scientists in Germany are speaking of the need to decrease parental liability. They are of the opinion that generally, parents are unable to exempt themselves from what has, de facto, become strict liability. Another argument in favour of restricting parental liability would be the modern pedagogic notion that children must acquire their life experiences and excessive supervision would be an obstruction to this14.
In France, persons with supervisory duty can be exempted from liability if they prove that they have exercised sufficient care in carrying out their duty of supervision and raising the child. It is clear that the younger the child, the more difficult it will be for the parents to be exempted from liability15. In Japan, so-called parental liability is also based on fault (§ 714 of the Japanese Civil Code (JCC). Parental liability, in its traditional meaning, is not applicable in English law, where parents may be liable for damage caused by a minor as their own delict, which can be constituted, e.g., by the fact that they failed to fulfil their duty of supervision16.
In accordance with ECC, minors under seven years of age do not have any delictual capacity (article 3:103 (2)). Minors from seven to eighteen years of age will have a restricted delictual capacity, i.e. they will be liable for damage only if they do not exercise such care as could be expected from a reasonably careful person of the same age in the circumstances of the case (article 3:103 (1)). In accordance with ECC article 3:104 (1), parents or other persons obliged by law to provide parental care for a person under fourteen years of age, are accountable for the causation of legally relevant damage where that under age person caused the damage through conduct that would constitute negligence if it were the conduct of an adult. Responsibility for a minor without delictual capacity can also be incumbent on an institution or other body which has the task of supervision over the person who caused the damage. The liability of a supervising institution or other body will arise if the following preconditions are fulfilled: (a) the damage must be constituted by personal injury, by damage caused to a third person by death of, or injury to, a person, or by damage to property; (b) the person whom the institution or other body is obliged to supervise, caused that damage intentionally or negligently or, in the case of a person under eighteen, by conduct that would constitute intention or negligence if it were the conduct of an adult; and (c) the person under supervision is a person likely to cause damage of that type (ECC article 3:104 (2)). However, the liability of a supervising institution or other body is mitigated by ECC article 3:104 (3), whereunder such body will be exempted from liability if it shows that the supervision over the person who caused the damage was not defective (i.e. was sufficient).
Thus, one of the requisites for the so-called parental liability under ECC is (at least) objectively negligent conduct by a minor under 14 years of age. The liability of an institution with a supervision duty is less stringent: on the one hand, its liability is based on (at least) the objective negligence of the person who caused the damage, and on the other hand, the exercise of nondefective supervision over the person in question will also serve as a means for exemption from liability.
In accordance with LOA § 1053 (1), the parents or guardian of a person under 14 years of age will be liable for damage unlawfully caused to another person by the person under 14 years of age, regardless of the culpability of...