Rules of civil liability in cases of damages caused by minors in Argentina

Generalities

An increase in news reports about unfortunate events where the main characters are minors, leads us to consider, once again, their civil liability. 

The new Argentine Civil and Commercial Code[1] (CCC), in force since 2015, embraces liability of minors at younger ages. Although the CCC maintains the age of 18 years old as the full age[2] for attaching liability (reduced from 21 in 2009[3]), the new Code imposes a progressive capacity[4] for lower ages[5].

Minors are represented by their legal representatives[6]: their parents[7] or their guardian[8], together with the Public Prosecutor[9]. Despite that representation, and as the former Civil Code, the CCC maintains the age of 10 years old[10] from which minors can be held personally liable[11]. In such cases, minors are held jointly liable with their parents, and parents are granted an action of reimbursement against their children, according to legal doctrine[12] in case of compensation paid.

Adolescents

One of the new definitions within the CCC is adolescents; adolescents are those older than 13 years old[13]. 

Adolescents have the right to be on trial together with their parents: however they also have the right to be represented by their own attorney, without having to obtain parental consent[14] although they will still require judicial authorization[15]. 

Furthermore, if minors, no matter their age, have an enabling title to exercise a profession[16], they have the right to exercise it without having to obtain any kind of consent. In such cases, they also have full control of the administration of and right to sell their own assets. 

The liability of their legal representatives

The new CCC changed the concept of patria potestad (parental authority) from the former Civil Code to responsabilidad parental (parental liability). This created rights and obligations of parents over their children’s body and assets, to ensure of their protection, development, education and formation[17]. 

The former Civil Code stated the subjective and joint liability of both parents for damages caused by their children. Parents or guardians may be released from liability if they can prove that they did not have custody at that moment; for example, if the child was in the custody of the other parent (if they were separated[18]) or a third party[19] (such as a School). Parents can also be released if they can prove that the event was impossible to avoid, despite he or she having active custody of the child.  Legal doctrine and precedent calls that kind of subjective liability culpa in vigilando (guilt in custody)[20]. 

The new Article 1754 of the CCC changed to a strict liability of both parents. The CCC maintains the principle that parents are jointly liable with the minor. As condition for that, the child shall be in the parent’s custody and  living with them. Nevertheless, the parent cannot be released from liability if the cause of the child not living with the minor was due to the parent’s decision.

Exceptions to a parent’s liability[21] are cases where:

• Minors are under the supervision of a third party
• The accident involves a labour task and the minor was exercising their own profession
• If minors exercise a function under the instruction of a third party
• Contractual obligations validly hired by minors.

A typical case involving minors under the supervision of a third party is when the minors are attending school. Article 1767 of the CCC expressly maintains, as the former Civil Code, the personal liability of the owner of schools for damages caused or done by minors, if they are at school. Now, it is expressly states the strict liability of schools. However, the CCC maintains force majeure as the only case for releasing liability, and thus schools are obliged to have valid insurance policies[22].

Where a guardian instead of parents represents a minor, the guardian also faces strict liability for damages[23]. But, contrary to the situation with parents, the guardian can be released from liability if he or she can prove that it was impossible to prevent damages[24].

Conclusion

The CCC embraces the possibility for minors to be held personally liable at lower ages, by their own profession and activity. Also, a subjective liability of their legal representatives is replaced by a strict one. 

Reasons of social interest, such as the protection of the unjustly injured and a preventive function, justify the new rules, despite the extension of life expectancy.

 

 

Bibliography:

1) Civil and Commercial Code, under Law Nbr. 26.994.

2) Former Civil Code (Law Nbr. 340) and amendments.

3) Law Nbr. 26.618.

4) Law Nbr. 26.579.

5) Alterini, Jorge (Director), “Código Civil y Comercial comentado” (Civil and Commercial Code, Commented), Volume VIII, Thomson Reuters La Ley Editorial, Buenos Aires, 2015.

6) Rivera, Julio César – Medina, Graciela (Director), “Código Civil y Comercial comentado”, (Civil and Commercial Code, Commented), Volume IV, Thomson Reuters, La Ley Editorial, Buenos  Aires, 2015.

7) Llambías, Jorge Joaquín, “Tratado de Derecho Civil, Parte General” (Civil Law Treaty, General Part), Abeledo Perrot Editorial, 18° Edition, Buenos Aires, 1999, pages 171-179.

8) Plovanich, María Cristina, “Responsabilidad de los padres en el Código Civil y Comercial” (The Liability of parents in the Civil and Commercial Code), published in RCyS (Revista de Responsabilidad Civil y Seguros – Civil Liability and Insurance Legal Magazine), Volume 2015-IV.

 

[1] The new Civil and Commercial Code (CCC) is in rule since 1 August 2015. enacted by Law Nbr. 26.994, and was published in the Official Journal on 19 April 2014.  This was the result of the unification of the Civil Code and Commercial Code.  Regarding minors, the former Civil Code was enacted on 29 September 1869 under Law Nbr. 340, with various amendments regarding women capacity, minimum age for marriage, divorce, full age, among others (Llambías, Jorge Joaquín, “Tratado de Derecho Civil, Parte General” (Civil Law Treaty, General Part), Abeledo Perrot Editorial, 18° Edition, Buenos Aires, 1999, pages 171-179.

[2] According to Article 25 CCC. 

[3] By Law Nbr. 26.579, that was published in the Official Journal on 22 December 2009.

[4] The CCC states a progressive process where adolescents can exercise rights by themselves, according to their age and level of knowledge (articles 26 and 639, sub. b) of CCC).

[5] From 16 years old, adolescents also have the right to give their own consent together with their parents to hire their own services or to learn a trade.  Over 16 years old, if adolescents exercise a job, profession or industry, it is presumed that have been authorized by their parents for any kind of contracts regarding their activity, having their own and only the administration of their assets acquired by their activity.  Nevertheless, the rights and obligations of third parties fall over adolescents´ assets.  As the former Civil Code, the CCC also maintains the emancipation of minors through marriage, over 16 years old[5], not needing a legal representative from that moment.  According to articles 27 and 28 CCC, the minimum age required for marriage is 18 years old (article 403, sub. f) CCC).  If they are less than 18 but over 16 years old, they can be married with the authorization of their legal representatives.  If they are less than 16 year old, they need a trial discharge (article 404 CCC).  However, there are some restrictions for empowered for certain acts: they cannot sell without Judicial authorization the assets received free of charge (Article 29 CCC).  They also cannot, even with judicial authorization: a) To approve the accounts of their guardians; b) To donate assets received free of charge; c) To guarantee obligations (Article 28 CCC).

[6] According to Article 26 CCC.

[7] Since Law 26.618, enacted on 21 July 2010, that allowed the equal marriage, parents can have the same gender.  The CCC considered it on article 402.

[8] According to Article 104 CCC.

[9] Its representation can be complementary or principal.  It is principal if there is inaction of their legal representatives, or if shall be deemed the duties of their legal representatives or there is no legal representative (Article 103 CCC).

[10] Article 1114 of previous Civil Code stated the liability of minors over the age of 10 years old.  Article 261, sub. b) of new CCC defines as an unintended act the illegal one performed by a minor of less that age.

[11] Under that age, the act is considered made without discernment.  However, in this last case, the reparation can be claimed to their parents under reasons of equity. (Alterini, Jorge, Civil and Commercial Code, Commented, Volume VIII, Thomson Reuters La Ley, Buenos Aires, 2015, pages 329 and 330).

[12] Rivera, Julio César – Medina, Graciela, Civil and Commercial Code, Commented, Volume IV, Thomson Reuters, La Ley, Buenos  Aires, 2015, page 1111.

[13] Within adolescents, there are two different frames of level of capacity: one from 13 up to 16 years old; the another one, from 16 to 18 years old.  As general idea, the first frame can exercise by themselves, without the consent of their parents and/or tutor, certain and non-invasive medical treatments. In the second frame, they can have the possibility to go further regarding certain medical surgeries, without any consent, and can have the ability to have a job or exercise commercial or industrial activities.

[14] Parents have the right and duty to represent them at Court and/or authorize them (article 645, sub. d) CCC).

[15] According to articles 677 and 678 CCC.

[16] It is stated in article 30 CCC.

[17] According to article 638 CCC, while they are under 18 and if they are not emancipated. 

[18] According to article 1114 of the former Civil Code.

[19] According to articles 1114, 1115 and 1117 of the former Civil Code.

[20] Nevertheless, in the last years and in some cases, it has been impossible to prove an event of liability release, considering also the obligation of parents of education, and that it could vary over the age of the minor.

[21] According to article 1755 CCC.

[22] As the former Civil Code and the CCC state, that liability is not applicable for education at Tertiary level or University level.

[23] According to article 1756 CCC, first paragraph.

[24] A similar case of Act of God or Force Majeure, under the definition of article 1730 CCC: The fact that cannot be provided, or provided, cannot be avoided.