Categories
Uncategorized

Parental Liability for the Unlawful Acts of Minors: When Parents Pay for What Children Do

The article clarifies in practical terms when Romanian law allows victims to claim compensation directly from parents for unlawful acts committed by minors. It outlines the main legal conditions, typical real-life scenarios and the defences that may be raised in court by parents and injured parties.

In everyday life it is not at all rare for a child to break a window while playing football, damage goods in a shop, post insulting messages online about a classmate, or even cause an accident with a bicycle or scooter. Behind these seemingly “minor” situations lies a complex legal regime: civil liability for damage caused to other persons. When the author of the act is a minor, the natural question is: who pays – the child, the parents, or both?

The current Civil Code expressly regulates liability for the acts of a minor, as part of the wider institution of liability for another’s act. The key provision is Article 1372 Civil Code, complemented by the general rules on tort liability in Article 1357 Civil Code and by the provisions on parental authority and supervision of the child.

This article aims to explain, in accessible language, under what conditions parents are liable for the unlawful acts of minors, what the limits of this liability are, and what recourse actions are possible, with references to the Civil Code, to child protection legislation and to relevant case law.

1. Legal framework: from general tort liability to liability for the act of a minor

1.1. General civil tort liability

The starting point is liability for one’s own act, governed by Article 1357 Civil Code, which provides that the person who causes damage to another through an unlawful act committed with fault is obliged to repair it in full.

Specialist literature and practical syntheses published on legal websites constantly emphasise that, in order to engage tort liability, four main conditions must be cumulatively met: damage, an unlawful act, a causal link between act and damage, and fault. These elements are explained for example on Projurista Plus and LegalUp, with reference to Article 1357 Civil Code.

1.2. Liability for the act of a minor – Article 1372 Civil Code

In addition to the general rule, the Civil Code regulates situations where someone is liable for the act of another person. In the field of minors, the basic text is Article 1372 Civil Code:

  • any person who, by law, contract or court order is obliged to supervise a minor is liable for the damage caused by that minor;
  • this liability exists even if the minor lacks mental capacity and is not liable for his or her own act.

The article is detailed and commented both on codulcivil.ro and on portals such as avocatcivil.net, or in synthesis articles on liability for the act of another, such as those on euroavocatura.ro.

1.3. Parental authority and the duty to supervise

Parental liability for the act of a minor is directly linked to parental authority, defined by Article 483 Civil Code as the set of rights and duties regarding both the person and the property of the child, belonging equally to both parents.

The concrete content of parental authority is detailed in Article 487 Civil Code, which provides that parents are obliged to raise the child, to look after his or her physical, mental and intellectual health and development, and to ensure education, schooling and vocational training. These duties are explained in commentaries published on Legal Land.

Expressly, Article 493 Civil Code states that parents have the right and duty to supervise their minor child. This duty is reiterated in Article 32 of Law no. 272/2004 on the protection and promotion of the rights of the child, which obliges parents to supervise the child and to take all necessary measures for the realisation of the child’s rights.

1.4. Who can be the “person obliged to supervise”

Although practice focuses mainly on parents, Article 1372 covers all persons who, by law or by agreement, have a duty to supervise the minor. Legal literature and dictionaries mention, alongside parents and guardians, other persons and institutions: teachers, trainers who instruct minor apprentices, foster carers, and persons or entities which, under a contract, undertake to supervise or re-educate minors (nurseries, schools, re-education centres, camps, sports clubs etc.).

A comprehensive summary of these situations can be found in the article “Liability of persons who have a duty to supervise a minor” in the LegeAZ legal dictionary, as well as in training materials of the Ministry of Justice on liability for the act of another.

2. Conditions of parental liability for the unlawful act of a minor

2.1. General conditions of tort liability

Even though we are dealing with liability for the act of another, the general conditions of civil tort liability still apply. In short, for parents to be obliged to compensate the damage caused by their child, there must be:

  • actual damage suffered by the victim (pecuniary or non-pecuniary);
  • an unlawful act committed by the minor (contrary to legal norms or social norms of conduct);
  • a causal link between the minor’s act and the damage;
  • a presumed failure by the supervising person to fulfil their duties.

These conditions are constantly emphasised in doctrine and specialised works, such as papers on “parental liability for the unlawful act of the minor child” or “civil tort liability of parents”, available on platforms like graduo.net and qreferat.com, as well as in doctrinal articles in civil law journals.

2.2. Presumption of fault and nature of parental liability

Article 1372 establishes a legal presumption of fault against the person obliged to supervise the minor. The central idea, reflected in many analyses (such as the study “Liability for the act of another” published on the portal.just.ro site), is that it is presumed that parents have not properly fulfilled their duties of education and supervision, since the minor has committed an unlawful act.

Doctrine has debated at length whether parental liability is based on a subjective element (fault in education and supervision) or on an objective basis (a form of guarantee liability for the social risk created by minors). Many authors argue that, under the current Civil Code, the liability has a predominantly objective character, and parents may be exonerated only in the restrictive conditions laid down by the law.

2.3. Minors with and without mental capacity

A central aspect is the distinction between a minor with mental capacity and a minor without mental capacity. From a civil law perspective, if it is proved that the minor had mental capacity at the time of the act, he or she may be personally liable under Article 1357 Civil Code, and the victim may bring an action against the minor, the parents, or both, within the limits laid down by law.

By contrast, Article 1372(2) expressly provides that the liability of the person obliged to supervise persists even when the author lacks mental capacity and is not liable for his or her own act. Thus, in the case of very young children (for example under seven) or of children in a psychological state in which mental capacity cannot be established, parents may be the only ones sued for compensation.

Popular legal analyses, such as those published by desprecopii.com and consultantavocat.ro, explain clearly that, although very small children are not criminally liable, the injured party may seek civil compensation from the parents.

2.4. Parent–child relationship and exercise of parental authority

As regards who is called to account, the basis is the existence of a legal parent–child relationship and the exercise of parental authority. Legal writing highlights that parental liability stems from this legal relationship and applies irrespective of whether the minor is born in or out of wedlock or adopted, as long as the parents exercise parental authority.

Commentaries on Articles 483 and 487 Civil Code (for example those on Legal Land and petrea.eu) stress that the duty to raise and supervise the child is a continuing one, and does not disappear as a result of the parents’ divorce or changes in the child’s domicile.

3. Limits of liability: who pays, how much, and up to what point

3.1. Liability of parents, other supervisors and solidarity

As a rule, when the minor’s act is committed in the family or in situations where parents had effective control (at home, on holiday, in the park under their supervision), liability primarily attaches to the parents. They are generally liable jointly and severally towards the victim, irrespective of whether they are married, divorced or separated, or whether the minor actually lives with one of them, as can be seen in case law summarised on raspunsurijuridice.ro.

However, if at the time of the act the obligation to supervise lay with another person (for example a teacher, a coach, a babysitter, a foster carer or an institution), liability may be engaged against that person or institution, under Article 1372, with the nuances reflected in case law analysed in the LegeAZ legal dictionary.

3.2. Divorced or separated parents

The fact that parents are divorced or that the minor lives with one of them does not automatically exclude the other’s liability. As long as both parents exercise parental authority (as a rule, jointly after divorce) and there is no judicial restriction on its exercise, both can be sued for damage caused by the minor, even if the child effectively lives with only one of them.

Doctrine and case law show, however, that the concrete situation (for instance, whether the non-resident parent had any real possibility to supervise the child at the time of the act) may influence the internal allocation of the burden of compensation, through possible recourse actions between the parents.

3.3. Situations of exoneration

According to training materials drawn up by the Ministry of Justice, parents (or guardians, as the case may be) are exonerated from liability only if they prove that:

  • the child’s act is not the consequence of how they fulfilled their parental duties, but results from a different cause (for example a fortuitous event or the decisive intervention of a third party); or
  • they could not, objectively, have prevented the harmful act, even with careful supervision.

The standard is strict: the starting point is the presumption that parents should have prevented the act, and exoneration is admitted only in exceptional circumstances (for example an unpredictable and unavoidable incident, despite diligent supervision).

3.4. Victim’s contribution, force majeure and other limiting factors

The general rules on victim’s contribution to the damage, force majeure and fortuitous events also apply to liability for the act of a minor. For example, if the victim consciously accepted a specific risk or actively provoked the minor’s dangerous behaviour, the court may reduce compensation in the light of the general rules in Articles 1371–1372 Civil Code and related case law, as analysed in resources such as Petrea & Associates – Civil tort liability.

3.5. Types of damage: pecuniary and non-pecuniary

Parental liability covers both pecuniary damage (for example the cost of repair, the value of destroyed items, economic losses) and non-pecuniary damage (harm to honour and reputation, mental distress, harm to image in the online environment). Especially in cases of bullying or cyberbullying between minors, Romanian courts have awarded non-pecuniary damages, relying on Civil Code provisions and on the protection of dignity and private life.

4. Relationship between parents’ liability and the minor’s liability

4.1. The minor is liable for his or her own act, parents for another’s act

Many popular legal articles (for example “Parental liability for minors’ acts” on legal-help.ro) stress that, when the minor has mental capacity, he or she is liable for his or her own act, while the parents are liable for the act of another.

In such cases, the victim can choose to sue:

  • only the minor (to the extent that he or she has assets or income);
  • only the parents (on the basis of Article 1372);
  • both the minor and the parents, cumulatively, within the statutory limits.

This possibility of choice is also mentioned in doctrinal and synthesis articles such as those on consultantavocat.ro – Civil Code: liability for the act of another.

4.2. Correlation of different forms of liability – Article 1374 Civil Code

Article 1374 Civil Code regulates the correlation between various forms of liability for another’s act and provides, inter alia, that parents are not liable if the conditions of liability of the person who had the duty to supervise the minor at the time of the act (for example a teacher or coach) are met.

It also clarifies that, if the employer (for example of a minor acting as an employee) is also the parent, the victim may choose the legal basis of liability, which gives the victim additional protection when deciding whom to sue to recover the loss.

4.3. Criminal vs civil liability

It is important to emphasise that this discussion concerns civil liability, namely the obligation to repair damage. Criminal liability of minors is regulated separately in the Criminal Code and depends on the age of the minor and on the existence of criminal capacity.

Even if the minor is not criminally liable (for example if under 14 or lacking criminal capacity), the victim can still obtain civil compensation, either from the minor (if he or she has civil capacity), or from the parents or other supervising persons, as explained in analytical materials on the relationship between civil and criminal liability, such as those published on consultantavocat.ro.

5. Practical examples: how courts reason

5.1. Damage to property – broken window, damaged phone, graffiti

A very common scenario is where the minor damages another person’s property: breaks a window, destroys a phone, paints graffiti on a building or causes damage in a store. In such cases, courts generally examine:

  • the context in which the act occurred (play, intent, vandalism);
  • whether the minor had mental capacity; and
  • who had the actual duty to supervise at the time of the act.

Case law published on portals such as jurisprudenta.com and euroavocatura.ro confirms that, in the absence of causes for exoneration, parents are generally ordered to fully compensate the victim, covering both repair costs and any consequential damage (for example loss of use of the property during repair).

5.2. Aggression and bullying between classmates

In cases of physical or verbal aggression between classmates, especially when it occurs at school or during extracurricular activities, courts must distinguish between the parents’ liability and that of the educational institution or other supervising persons. They take into account:

  • the preventive and supervisory measures taken by the school or organiser;
  • the aggressor minor’s behavioural history;
  • how parents have reacted to warnings about the child’s conduct (for example previous reports from the school).

Analytical articles on parental liability for minors’ unlawful acts, such as those published on avocat-curpas.ro, show that courts tend to find a combined liability, proportionate to each party’s contribution to the damage.

5.3. Online damage: defamation, publishing images

An increasingly sensitive area is that of damage caused online: defamatory posts on social networks, publishing photos or videos without consent, creating fake accounts and similar acts. In these cases, courts apply the general rules of tort liability and protection of personality rights, together with Article 1372 on liability for the act of a minor.

Although case law is still evolving, there is a noticeable trend of awarding significant non-pecuniary damages for harm to dignity and private life, especially when the minor’s act has wide online dissemination and parents have failed to take reasonable measures to educate and control the child’s use of technology.

6. Recourse actions available to parents

6.1. Recourse against the minor once he or she becomes an adult

Once parents have paid compensation to the victim, the question arises whether they can recover the amounts from the child. The general rules on solidary obligations and recourse (Articles 1440 and following Civil Code) allow, in principle, a person who has paid the entire damage to seek contribution from the other co-debtors for their share.

Doctrine suggests that, in so far as the minor was also civilly liable (had mental capacity) and later becomes an adult, the parent who paid the compensation may bring a recourse action against the now adult child, relying on the general rules. In practice these actions are rare, due both to moral and family considerations and to the fact that young adults seldom have substantial assets.

6.2. Recourse against other supervising persons or institutions

More frequent are recourse actions against other persons or institutions which had an effective duty to supervise at the time of the act: schools, sports clubs, organisers of activities, etc. Depending on the circumstances, the parent ordered to pay may show that the primary fault lies with the institution or person that had the concrete duty to supervise (for example, a teacher who left children unsupervised in a hazardous environment).

Article 1374 Civil Code, together with doctrine and case law discussed on euroavocatura.ro, provides the framework for such recourse claims, which require a detailed analysis of the legal relationships between parents, institutions and the minor.

6.3. Recourse and liability insurance

Legal literature also discusses the usefulness of civil liability insurance for damage caused by minors, especially in countries where such policies are widespread. Some works (for example papers available on preferatele.com) propose developing an insurance system that would partially cover parents’ financial risk, with insurers subsequently becoming parties to recourse actions within the limits of the contract.

7. Practical steps for parents and victims

7.1. What parents should do to limit risk

From a preventive perspective, parents can reduce the risk of being held civilly liable by:

  • providing consistent education about respect for other people’s property and personal rights;
  • setting clear rules on using the internet, social networks and digital devices;
  • actively supervising the child in high-risk situations (dangerous sports, visits to busy places, unsupervised online activity);
  • keeping in contact and cooperating with schools and other institutions that care for the child;
  • considering whether to take out civil liability insurance for the family.

7.2. What the victim should do

The person injured by a minor’s unlawful act should, in practice:

  • document the incident immediately (photos, videos, witness statements, any official reports);
  • identify the minor and, as far as possible, the parents or supervising person at the time of the act;
  • attempt an amicable settlement as a first step (discussion, written agreement, voluntary payment of compensation);
  • if this fails, bring a civil action against the persons considered liable, referring to the relevant Civil Code provisions.

Popular legal portals and law firm websites such as legal-help.ro, desprecopii.com and avocatmateigabriel.ro often provide concrete examples of such steps.

8. FAQ – Frequently asked questions: when are parents liable for their children’s acts?

1. Are parents always liable for anything their minor child does?

No. Parents are, in principle, liable for damage caused by their minor’s unlawful acts under Article 1372 Civil Code, but only if the conditions of civil tort liability are met and if they cannot prove that the act is not the consequence of how they fulfilled their parental duties or that they could not objectively have prevented it.

2. If the minor has no mental capacity, can parents still be held liable?

Yes. Article 1372(2) Civil Code expressly provides that the liability of the person obliged to supervise persists even when the author lacks mental capacity and is not liable for his or her own act. In such cases parents can be sued alone for compensation.

3. If the minor is over 14 and acted intentionally, do parents still bear liability?

To the extent that the minor had civil mental capacity, he or she may be personally liable. However, the victim may also sue the parents under Article 1372 or both the minor and the parents, depending on the circumstances. The court will then decide on the distribution of liability and any recourse.

4. Does the parents’ divorce change anything regarding liability?

Divorce as such does not remove liability. As long as both parents exercise parental authority (usually jointly after divorce) both may be sued for damage caused by the minor, even if the child lives with only one of them. The concrete circumstances may later influence possible recourse actions between parents.

5. Can a school or other institution be liable instead of the parents?

Yes. If at the time of the act the duty to supervise lay with the school or another institution (for example a sports club, camp or educational centre), that institution may be held liable under Article 1372 Civil Code. Parents may be exonerated if it is shown that the conditions of liability of the supervising person or institution are met.

6. Can parents recover the money from the child once he or she becomes an adult?

Theoretically yes. In so far as the minor is also liable for his or her own act (having had mental capacity), parents who have paid compensation may bring a recourse action once the child becomes an adult, under the general rules on recourse between co-debtors. In practice, such actions are rare.

7. If the victim contributed to the damage, are parents still fully liable?

Not necessarily. If the victim contributed through his or her own conduct to the damage (for example by provoking the minor or consciously accepting an unusual risk), the court may reduce compensation by applying the rules on the victim’s fault and apportioning liability between author and victim.

8. Are there insurance policies covering damage caused by children?

Yes. The insurance market offers civil liability policies for heads of household or homeowners that may cover damage caused by minor children, within the limits of the policy. Such insurance does not remove legal liability but may cover the financial consequences.

9. Useful sources