The Children in The Macedonian Tort Law

The Children in The Macedonian Tort Law

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Children, Macedonian, Tort, Law

Neda ZDRAVEVA Associate Professor

Iustinianus Primus Law Faculty, Ss. Cyril and Methodius University E-mail: n.zdraveva@pf.ukim.edu.mk

Abstract The position of the children in the tort law is a very specific one. It is a fact that a child could physically cause a damage to the property or to the immaterial values of someone else. However, it is also a fact that in the different stages of the mental development of a child, their understanding of their own conduct and the consequences thereof varies. On the other hand, once the damage has occurred it cannot be left uncompensated for.

The injured party should not suffer the consequences of the acts of someone else. So, a question rises who will be liable for the damage. In the same time a child may suffer a damage to their property but more often to their person and personal rights, especially to their right to life and health. The consequences of such damage may not be the same as the one an adult may experience. Here we have a question on how this damage will be treated by the law. The Macedonian tort law provides answers to these questions.

The objective of this research is to analyse what is the position of the children in the cases of non-contractual liability for damage and is the law providing for sufficient mechanisms for protection of their rights. The solutions present in the national law are compared and analysed vis-à-vis the ones that exist in the states of former SFRY, having in mind the same legal tradition. In regard to the liability for damage the rules of the German and the French law as specific models for the liability for damage in the civil law system.

The author concludes that the existing mechanisms on the Macedonian tort law system provide for adequate and sufficient protection of children in torts. Key words: liability of minors, liability of parents, liability of supervisors of minor, damage, strict liability, faut-based liability, Macedonian tort law

Neda ZDRAVEVA

144 Balkan Social Science Review, Vol. 17, June 2021, 143-161

Introduction

The position of the children in the tort law is a very specific one. It is a fact that a child could physically cause a damage to the property or to the immaterial values of someone else. However, it is also a fact that in the different stages of the mental development of a child, their understanding of their own conduct and the consequences thereof varies. On the other hand, once the damage occurred it cannot be left uncompensated for.

The injured party should not suffer the consequences of the acts of someone else. So, a question rises who will be liable for the damage. In the same time a child may suffer a damage to their property but more often to their person and personal rights, especially to their right to life and health. The consequences of such damage may not be the same as the one an adult may experience. Here we have a question on how this damage will be treated by the law.

The obligations arising from damage (civil wrongs, torts) are “such relations wherefrom for the party of the tortfeasor arises obligation to compensate the damage, while for the injured party the right the damage to be compensated” (Galev & Dabovikj Anastasovska, 2008, p. 583).

The specific position of the children in these relations has been regulated in the Macedonian law on obligations since the federal Law on Obligations.1 When the national Law on Obligations in 2001 was enacted it contented the same provisions, but its further amendments provided, in our opinion, certain clarifications.2 The Law provides for rules regarding the two parties of an obligation – when a child causes a damage and when a damage is caused to a child. In regard to the first situation, we will see under which conditions the child will be liable for the damage and where the liability is born by another person, primarily the parents, or persons that exercise supervision over the minor.

In the second part of the paper, we will analyse the legislation protecting the minor as an injured party and the rights of the minor to have the damage suffered compensated.

Children as tortfeasors

The basic rule of the liability for damage is that the person who causes the damage is liable to compensate for it.3 This rule is based on the assumption of tortious capacity, that “the person who caused the damage was able to understand the meaning of their action in terms of whether it is contrary to the law and whether it causes harm to another person and is aware of the potential consequences of their conduct” (Zhivkovska, 2004, p.69-72). The tortious

1 Law on Obligations (“Official Gazette of Socialist Federative Republic of

Yugoslavia” no. 29/78, 39/85 and 57/89); hereinafter: LOO/SFRY 2 Law on Obligations („Official Gazette of the Republic of Macedonia” no.18/2001;

4/2002; 5/2003; 84/2008; 81/2009 and 161/2009); hereinafter: LOO 3 Art. 141, para. 1, LOO; translations of legislative texts from Macedonian language,

Serbian language, Croatian language, Montenegrin language and Slovene language were done by the author

The children in the Macedonian tort law

Balkan Social Science Review, Vol. 17, June 2021, 143-161 145

capacity is possessed only by those persons who are able to understand the consequences of their actions, both acts and omissions, and therefore are held accountable for them. It follows that not all persons capable of causing harm may be held liable.

Persons who cannot comprehend their actions will appear as a de facto tortfeasor, while those who will be held liable as a legal tortfeasor.

In practice, the actual tortfeasor is often the legal tortfeasor, but it is not uncommon for them to be two different persons. Simply put, persons who do not meet the conditions prescribed by law for acquiring tortious capacity are not liable for the damage they cause. In principle, there are two such cases: when the damage is caused by a mentally incompetent person and when the damage is caused by a minor.

In the cases when the damage is caused by a person considered a minor by the national law, the system of liability will depend on the age of the minor. As a rule, in the civil law systems, liability of children is excluded or restricted. Due to the age of the minor, it is considered that they are unable to meet the objective standard of care. However, there is a difference in the approach.

In some of the systems, as is the case with the Macedonian Law on Obligations, the capacity to understand the potential consequences of their conduct is a distinct requirement for fault liability. Consequently, the standard of care is the same for everyone and one who is not able to meet that standard of care due to age (or mental incapacity) cannot be held liable.

On the other hand, there are systems where the standard of care is lowered in response to the age of the person, but then the conduct is compared to the one that may be expected from persons in the same age group (Werro & Palmer & Hahn, 2004, p.389). There are, however, differences in the determination of the relevant age limits. In the Macedonian law it is considered that a person has tortious capacity, thus is liable for damage, when he /she reaches the age of fourteen, before which age a minor cannot be held liable for damage. Still, the position is different if the minor is under the age of seven or between seven and fourteen years of age.

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