Children, Liability for: Comprehensive legal consideration
Die Liability of children is a significant part of civil law and concerns, in particular, the question of under what circumstances minors must be held liable for damages they cause. This subject is especially relevant in tort law and in connection with the supervisory duty of parents. The legal treatment of children’s liability differs fundamentally from that of adults, as minors may be limited in their capacity for insight and self-control compared to adults. The following article explains the various legal regulations, exceptions, and relevant aspects regarding the question of children’s liability in Germany.
Age-dependent liability under German law
Children’s capacity for tortious acts
The question of children’s liability depends, in particular, on their so-called capacity for tortious acts, which is regulated in the German Civil Code (BGB). This capacity determines from what age and under what conditions a person can be held liable for damages they have caused.
Children under seven years old (§ 828 para. 1 BGB)
Children who have not yet reached the age of seven are, according to § 828 para. 1 BGB, generally not capable of committing a tort. In principle, they cannot be held liable for damages they cause. An exception exists according to § 828 para. 2 sentence 1 BGB in relation to damage in road traffic, where a liability threshold of ten years applies.
Children between seven and ten years old (§ 828 para. 2 BGB)
A special regulation applies in road traffic: Anyone who has reached the age of seven but not yet ten is not liable for damages caused in an accident involving a motor vehicle, rail vehicle or cableway, unless the damage was caused intentionally. The purpose of this rule is to afford younger children increased protection in road traffic.
Children and adolescents aged ten to eighteen (§ 828 para. 3 BGB)
Children and adolescents who are older than ten but not yet of full legal age (under 18 years) are liable for any damage caused if they possess the necessary capacity for insight to recognize the wrongdoing of their action. The assessment of this individual capacity depends on the developmental stage of the minor in each case. If the capacity for insight is lacking, there is no liability.
Liability of supervisors (§ 832 BGB)
If a child causes damage and is not capable of committing a tort, the question arises as to the liability of supervisors, especially the parents. The liability of supervisors is regulated in § 832 BGB.
Requirements for supervisor liability
Liability arises when a child incurs damage during supervision and the duties of the supervisors have been breached. The supervisory duty includes protecting the child from harming others or themselves. Liability lapses if it can be proven that the required supervisory duty was not breached or that the damage would have been unavoidable even with proper supervision.
Scope of supervisory duty
The scope of supervision depends on the age, nature, and character of the child, as well as the respective circumstances. The younger the child, the stricter the required control. As the child becomes older and more capable of insight, more personal responsibility can be transferred.
Participation and exceptions to liability
Minors with particular intelligence or intent
In individual cases, even young children may become liable if, despite the age limit, they act deliberately and purposefully (intentionally). The burden of proof, however, lies with the injured party, who must demonstrate the intentional conduct.
Loss of receivables and hardship cases
For damages caused by non-liable children, where the supervisor’s liability does not apply, the injured party often remains responsible for their own loss. In such exceptional cases, certain legal protection models or the parents’ private liability insurance may provide so-called ‘loss of receivables’ coverage.
Compensation, insurance, and recourse options
Compensation claims in children’s liability
If children are liable, the extent of compensation is governed by the general provisions of §§ 249 ff. BGB. This may result in either monetary payment or restoration of the previous state (restitution in kind).
Importance of liability insurance
Parents can cover the risk of damages caused by their children with private liability insurance. Many insurers offer special coverage for children who are not capable of tortious acts. The specific terms are stipulated in the respective insurance contract.
Recourse measures
If a supervisor is liable due to breach of duty, possible recourse against the child who breached supervisory instructions can be considered – in practice, however, this is nearly irrelevant because minors generally have no attachable assets.
Special features in contractual relationships and strict liability
Contractual liability of children
Children can only enter into legally binding contracts from the age of seven onwards and are, according to § 104 no. 1 BGB, legally incapable of conducting business until the age of seven. However, there are different rules regarding contractual liability of minors, for example, for purchases made with pocket money (§ 110 BGB).
Strict liability
So-called strict liability seldom affects children but may apply, for example, when children independently operate vehicles or keep animals. Due to their lack of or limited responsibility, strict liability claims against children rarely apply in practice.
International law and divergent regulations
In many European and non-European countries, there are comparable rules governing the capacity for tortious acts and legal capacity of minors. However, sometimes the age limits and requirements for liability differ, so in cross-border matters it is important to consider the relevant applicable foreign law.
Case law and practical examples
Judicial decisions have resulted in numerous rulings in individual cases such as damages from vandalism, traffic accidents, or incidents on school grounds. Courts regularly take into account the age, development, and individual capabilities of the child. The question of whether and to what extent parents or other supervisors are liable is likewise thoroughly assessed in each case.
Summary
Liability for children under German law is structured in a multifaceted way to provide a fair balance between the protection of the child and the protection of injured parties. It is based especially on age limits regarding capacity for tortious acts, the possibility of making supervisors liable, and special rules in road traffic. The legal framework provides comprehensive guidelines for courts and practical cases to ensure that the individual responsibility of children and their environment is appropriately considered.
Frequently Asked Questions
When are parents liable for damages caused by their children?
Parents are not automatically liable for all damages caused by their children. Under German law (§ 832 BGB), parents are only required to compensate for damages if they have breached their supervisory duty. This means that, in each individual case, it must be examined how old the child was, how dangerous the situation was, how responsible the child is, and whether there were specific reasons for the parents to be especially attentive. The courts generally set higher expectations for self-responsibility with older children from school age, and lower expectations for parental supervision. Parents must therefore ensure that their children are sufficiently supervised. If it is proven that parents have fulfilled their supervisory duty, they are exempt from liability—even if the child has caused damage.
Are children themselves liable for damages they cause?
Children under seven years of age are, under German law (§ 828 para. 1 BGB), generally not liable for damages they cause. Between the ages of seven and eighteen, it depends on the child’s individual capacity for insight. This means the child must be able to understand that their behavior can cause damage and act accordingly. In traffic accidents, special rules apply for children under ten: they are not liable if they cause damage as pedestrians or cyclists. Full legal capacity and unlimited liability are generally only attained upon reaching the age of eighteen.
What is meant by parental supervisory duty and how is this assessed?
Parental supervisory duty arises from § 1631 BGB and obliges them to ensure their children’s safety and to prevent them from causing harm to others. The scope of this duty depends on the age, development, character, and other individual circumstances of the child. Toddlers require much closer supervision than teenagers. Courts base their assessment on the degree of supervision that reasonable parents would normally exercise in the situation. Violations of the supervisory duty are always examined by the court on a case-by-case basis, taking into account all relevant circumstances.
Can parents protect themselves against liability?
Yes, parents can protect themselves against compensation claims arising from damages caused by their children or for breaches of supervisory duty by taking out private liability insurance. It is important that the children are expressly included in the insurance cover. Some insurance policies also offer an optional ‘incapable of tort clause’ that, for example, covers damages caused by children under seven, even though they are not legally liable. Without such a clause, the injured party may be left without compensation if the child is incapable of tort.
How is liability regulated in care facilities such as kindergartens?
In kindergartens and other care facilities, the duty of supervision lies with the respective supervisors, such as educators or teachers. In the event of damage, it is investigated whether the institution or the acting persons have breached their supervisory duty. In the case of a breach, the institution or the public body (e.g. municipality, provider) can be held liable. Nonetheless, in individual cases, parents may additionally be held liable if they have violated particular duties, such as warning of certain dangers or the child’s behavior.
Are there differences in liability if the damage was caused intentionally or accidentally?
In principle, even in cases of intentionally caused damages, it is examined whether the child is capable of committing a tort, i.e. possesses the necessary capacity for insight. If this is the case, the minor must be liable for intentional damages in the same way as for negligently caused ones. If the child is incapable of tort, neither parents nor child can be held liable unless there is a breach of supervisory duty.
What happens if several children jointly cause damage?
If several children together cause damage, liability may be distributed among all involved children (if they are capable of committing a tort) and their parents (in case of supervisory duty breach). The parents’ liability always depends individually on the specific breach of supervisory duty. If none of the involved children are capable of committing a tort or none of the supervisors are at fault, the injured party often has to bear the loss themselves if there is no adequate insurance.
