The tortious capacity of minors has recently been the centre of attention of both the professional and lay public, particularly from the criminal law perspective, in connection with the preparation of the new Criminal Code. The reduction of the age limit for criminal liability from fifteen years to fourteen years was one of the most discussed changes throughout the entire process of considering the new Criminal Code. Professional debates and polemics on the issue were conducted not only throughout the entire preparation of the new codification, but also after its adoption, when the reduced threshold of criminal liability actually appeared in the new Criminal Code for a short time. The aim of reducing the age limit was to enable more effective punishment of child offenders. Many critics, particularly from the ranks of doctors and educators, opposed the reduction of the age limit, warning of the negative side effect of reducing criminal liability, namely the shifting of the boundary of the legal commencement of sexual life. On 7 August 2009, the Chamber of Deputies approved an amendment to the still ineffective Criminal Code, which returned criminal liability to the limit of fifteen years of age.

For this reason, I consider it beneficial to focus in this article on the civil law aspect, which in my opinion, unlike the “juvenile minor” in criminal proceedings, remains somewhat on the sidelines. Legal capacity, that is, the capacity of a natural person to bring about intended legal consequences by their conduct or omission, arises gradually according to their state of maturity. It arises in full scope upon attaining majority. Majority is attained upon reaching the age of eighteen; before reaching the age of eighteen, majority may also be attained by entering into marriage by a person over sixteen years of age. Majority thus attained is acquired once and for all, and in the event of divorce of this marriage, the person who has “come of age” does not lose it. Where a minor lacks legal capacity, their legal representatives, most often parents, act on their behalf. Nevertheless, according to the Family Act, a minor has legal capacity for certain legal acts directly by statute, for example, to enter into marriage with the permission of a court or to make, as a parent, a consensual declaration determining paternity. Expressly, a minor over fifteen years of age has capacity to draw up a will, but from the standpoint of increased protection, they may do so only in the form of a notarial deed. An interesting situation arises in the case of a minor girl under sixteen years of age, who may terminate a pregnancy upon request only with the consent of her parents. If, on the other hand, an artificial termination of pregnancy of this girl were to occur for health reasons, only the consent of the minor girl is required, but the consent of the parents as legal representatives is no longer necessary.

Legally liable is everyone who has unlawful capacity, so-called tortious capacity (deliktní způsobilost). All legal persons and those natural persons whose mental abilities (determined particularly by age) and momentary mental state (sanity) permit the natural person to recognise the unlawfulness (harmfulness) of their conduct and to control it have tortious capacity. Just as a minor’s legal capacity arises and develops gradually, so too does their tortious capacity arise and develop. In the case of persons of full age who have not been deprived of legal capacity, tortious capacity is presumed, i.e. it is deemed proven until the contrary is proved. Tortious capacity is therefore based on the abilities of each person to recognise the consequences of their conduct (intellectual maturity) and to control it (volitional maturity). Like legal capacity, tortious capacity arises in full scope upon attaining majority, provided that the natural person does not suffer from a mental disorder that would exclude the recognition and control components. Before attaining majority, tortious capacity is assessed individually with regard to the specific legal act, independently of age or mental disorder, according to whether the minor was capable of recognising the consequences of the conduct and controlling it. The absence of tortious capacity always excludes general liability; in the case of strict liability, it depends on the circumstances of its creation.

For liability for damage caused by minors, the Civil Code contains special regulation in the provision of Section 422(1), according to which a minor is liable for damage caused by them if they are capable of controlling their conduct and assessing its consequences. The extent of the tortious capacity of a minor person is therefore (as in the case of legal capacity) assessed ad hoc with regard to the circumstances of the individual case. Under the conditions set out in Section 422(1) of the Civil Code, the person who was obliged to exercise supervision over the minor is liable jointly and severally with the minor or independently instead of the minor.

In respect of the liability of minor individuals, no specific age limit is set within the age range from birth to eighteen years from which they would be exclusively themselves (even if only partially) liable for damage caused. Therefore, it is always necessary to consider in a specific case whether the minor who caused the damage had tortious capacity, i.e. whether they could assess the consequences of their conduct and also control their conduct. Both these prerequisites must be fulfilled simultaneously and fully. If, in respect of a certain conduct of a minor, the intellectual or volitional component is lacking, the minor is not liable for the damage, due to the absence of fault. The assessment of this question will depend on the circumstances of the specific case, i.e. both on the specific state of intellectual and volitional maturity and the age of the tortfeasor, and on the specific situation in which the damage was caused. The liability of a minor will always be assessed from their subjective standpoint, and in potential court proceedings it will generally be necessary, in order to evaluate the intellectual maturity and degree of control capabilities of the minor, to engage an expert in the relevant field to subject the minor to expert assessment. In practice, in addition to expert reports, professional opinions of healthcare facilities are sometimes used.

The natural persons who have the duty to exercise supervision over a minor are, in the first place, particularly their parents. Furthermore, according to the Family Act, these are also adoptive parents, another person to whom a child has been entrusted for upbringing, a guardian or foster parents. In the case of some persons, therefore, a person designated by law will be liable for the conduct of minor persons, at other times a person designated by a final decision of a court or on the basis of another legal fact (a minor goes on holiday to relatives who take over proper supervision of the minor from the parents).

Parents have a duty to bring up and care for their child, to guide their behaviour and to supervise them. Both parents have this duty even in a situation where the child has been entrusted for upbringing to only one of them; in such a case, however, according to the circumstances of the specific case, the parent who has the child in their care would be more likely to be liable for the damage. The liability of parents lapses particularly where, according to the Family Act, they have been deprived of parental responsibility.

In addition to natural persons, liability for damage may also affect a legal person obliged to exercise supervision over a minor. In the case of a legal person, its employee (e.g. a teacher) who has been directly entrusted with supervision is not directly liable for the conduct of the minor, because the legal person (the school) is in the liability relationship. However, this does not affect the labour law liability of the employee towards the employer. A school is liable not only for damage caused by a pupil during a lesson, but also for damage caused by a pupil during a break. In this way, for example, after-school clubs, kindergartens, nurseries, boarding schools, youth homes, institutions for the execution of institutional or protective education, diagnostic institutes, psychiatric healthcare facilities, children’s departments of hospitals or social care institutions for youth may also be liable for damage.

The concept of “proper supervision” is not directly specified by law. Settled case law has established that within the meaning of the provision of Section 422(2) of the Civil Code, such supervision cannot be understood to mean supervision that would be exercised by persons obliged to supervise constantly, continuously and directly under normal circumstances, because in such a case the possibility, envisaged by law, of release from liability of these persons would be practically excluded. When considering whether persons obliged to supervise have neglected proper supervision, it is necessary to have regard also to some circumstances concerning the person subject to supervision, such as their age, character traits and overall behaviour of the child. Judicial practice has concluded that effective supervision of minors is not only a prohibition of certain defective conduct in a situation where it has already occurred, but also the overall educational environment and influence on the child.

The provision of Section 422 of the Civil Code regulates four different alternatives of persons liable for damage caused. It is necessary to distinguish cases of liability for damage in which the following will be liable for damage: (i) the minor exclusively alone or (ii) jointly and severally with the minor, the person who was obliged to exercise supervision over them, or (iii) exclusively the person obliged to supervise or (iv) no one (such a situation may also arise, and in such a case the injured party will bear the damage themselves).

A minor will be exclusively liable for damage alone if, at the time the damage arose, both the intellectual and volitional components are present in the minor and the person exercising supervision over the minor has not neglected anything. A minor child will be liable for damage caused only if, by their conduct, they also fulfil other general prerequisites for liability for damage, i.e. the conduct of the minor, damage arising as a consequence of this conduct, causal connection between the conduct and the consequence, and fault (however, it is for the tortfeasor to prove that they did not cause the damage through fault (Section 420(3) of the Civil Code)).

1. A sixteen-year-old boy in his free time on the way from school passes an abandoned farm building, whereupon he immediately becomes convinced that this place is an ideal refuge for a first experience with marijuana. Out of fear of being discovered, he seeks out the premises of a former hayloft with still a large quantity of stored hay, which will provide him with sufficient comfort. Under the influence of emotions, absorbed in a new adventure connected with the first drag on a “joint”, which he obtained at school, the minor does not fully realise that the match with which he lit the marijuana cigarette has not been sufficiently extinguished and he throws it freely into the space. Within a few moments, the hayloft is in flames. The minor is satisfied particularly that, by quick-wittedly fleeing the building, he has saved his life. By the time the fire brigade arrives, almost the entire farm building has burnt down and damage in the amount of seven hundred and fifty thousand Czech crowns has been caused to the injured party.

In this case, the minor would probably be fully liable for the damage, because their intellectual maturity was already at such a level that they could sufficiently realise the consequences of their conduct and control their conduct. Given that the minor had until then been an unproblematic secondary school student, hitherto without any transgressions in behaviour, the parents probably did not neglect proper supervision.

In the case of damage caused by a minor child, the Civil Code presumes that the person obliged to exercise supervision over this minor child caused this damage through fault. However, the person exercising supervision cannot bear liability for everything and will be released from such liability if they prove that they did not neglect proper supervision. The burden of proof in this situation rests precisely on the person exercising supervision, as it is for them to prove that they did not neglect proper supervision. In such a case, the maintenance of normal caution by another person in a similar situation will probably be decisive.

For a better understanding of the issue of liability for damage caused by minor persons, I shall give several practical examples from the decision-making practice of general courts, with the conclusions of which, particularly in points 2) and 3) of this article, not everyone will probably fully agree:

2. A fifteen-year-old minor, a very problematic child in terms of discipline, was shooting in the afternoon with an air rifle from the window of his flat on an estate where he lived with his parents. Although he was warned by an adult passer-by of the inappropriateness and danger of his conduct, he did not stop. Shortly afterwards, he hit another random pedestrian with a pellet in the right eye, thereby causing him serious eye damage with permanent consequences. The minor’s parents were not in the flat at the time of the shooting and did not know that at that time their son had at his disposal, in addition to an older non-functional air rifle, an air rifle capable of firing, which the minor had borrowed from a friend fourteen days earlier and was hiding in the flat under the bed.

In this case considered by the Supreme Court, the fifteen-year-old minor who caused the damage to health is fully liable, because at his age he should already have been fully capable of controlling and assessing the consequences of his conduct. Together with the minor, the minor’s parents should also be jointly and severally liable for the damage caused, because they neglected proper supervision of the minor. In a situation where the fifteen-year-old minor exhibits disciplinary problems and his behaviour at school requires constant supervision and control so that offences do not occur, proper supervision by the parents also consists in increased interest in his behaviour, interests and hobbies, in his activity in his free time and in overall educational influence, so that deficiencies in his behaviour are eliminated and his defective conduct is prevented. Effective supervision of a minor therefore does not mean only immediate prevention or prohibition of certain harmful conduct once it has occurred, but also the overall approach of the parents to the minor’s upbringing to date and their educational influence to ensure that the minor’s defective conduct does not occur. Given that the minor had already committed offences at school and had a tendency to lie, it is unequivocal that precisely with regard to his characteristics and tendencies and his behaviour to date, the minor required a higher degree of supervision, control and educational guidance from his parents, particularly when they knew of his interest in a gun, albeit non-functional, and knew that he had it in his possession. The circumstance that within a week or two they did not discover that their son had obtained a functional weapon from a friend, and that they did not assume that he would want to harm someone’s health, is not a circumstance testifying that they had sufficient overview of his behaviour and that they effectively ensured supervision over him and took educational measures so that his conduct did not deviate from acceptable limits. In this connection, it cannot be overlooked that even the immediate admonition of an adult was not sufficient for him to cease shooting. The Supreme Court therefore concluded that the parents had not proved that they had not neglected supervision of the minor and found them jointly liable, jointly and severally with their son, for the damage caused.

3. A seventeen-year-old minor, during the absence of his parents, who were at work, found at home the keys to their car. He conceived the idea of showing off his driving skills to classmates from school and drove the vehicle in question to school, although he did not have a driving licence. When driving the vehicle, he caused a traffic accident, causing damage to another vehicle with which he collided in the amount of one hundred thousand Czech crowns.

In this case, also considered by the Supreme Court, the court also took the same view that this concerns joint liability of the minor, who was capable of controlling their conduct and assessing its consequences, and their parents, who will be jointly and severally liable with the minor. The parents neglected the duty to exercise supervision over their minor son and, through their negligence, enabled their son to take possession of the car keys and subsequently use the vehicle on a public road. A parent of a child who did not assume that the minor could use the vehicle, and who thus enabled the minor to have disposal of the vehicle by leaving the car and keys freely accessible to them during their absence, enabled the use of the means of transport through their negligence. The parents of the child, in addition to liability for damage pursuant to the provision of Section 422(1) of the Civil Code, will simultaneously also be liable for damage caused pursuant to the provision of the Civil Code on the operation of means of transport, according to which the person who enables the use of the means of transport through their negligence is jointly and severally liable for damage together with the tortfeasor. The subject of strict liability for damage caused by the operation of means of transport is in principle the operator of the means of transport, even if they themselves were not driving at the moment the damage arose. Only in the event that the means of transport was used without the knowledge or against the will of the operator is the person who used the means of transport in this manner liable for the damage. According to the opinion of the Supreme Court, this principle is partially breached in favour of joint and several liability of the originator of the damage and the operator in cases where the operator enabled the misuse of their means of transport through their negligence.

In conclusion, the general preventive duty of all persons cannot be omitted. Everyone is obliged to conduct themselves in such a way that damage to health, property, nature and the environment does not occur. Every person must always take all measures to avert the occurrence of damage, in a manner commensurate with the circumstances of the situation. In specific disputes, the court subsequently assesses the degree of contributory fault also from this standpoint. If there is a breach of this general preventive or intervention duty to avert damage on the part of any person who did not conduct themselves in accordance with these principles, the claim for compensation for damage may have negative consequences for this person, as they will be jointly liable for the damage that has arisen or will even be exclusively liable themselves.

This text was translated from Czech to English using an AI translator.