BGH VI ZR 335/03 III. Civil Senate VI ZR 335/03
30 November 2004
Translated by:
Tony Weir
Sir Basil Markesinis

§ 823, §828(2) BGB

The exemption from liability laid down by §828(2)(1) BGB, which was introduced by the Second Law Reform (Delict) Act of 19 July 2002 (BGBl I p. 2674), applied only to cases in which the child has been placed in a typically difficult situation by the specific dangers of motorised traffic.

On 12 September 2002 the defendant, then nine years old, went skateboard racing along M. Street in K. with his twin bother and a schoolmate. Although he was a practised skateboard operator the defendant carelessly fell off his skateboard which then struck and damaged the claimant's car, properly parked on the right-hand side of the highway.

The Amtsgericht dismissed the claimant's suit in respect of the damage to his car, but on his appeal the Landgericht gave him judgment for €1,904.16. The defendant further appealed, but in vain.

Reasons: .....
The defendant is liable under §823(1) BGB to compensate the claimant for the damage done to his vehicle by the defendant's skateboard.

1. The court below was right to conclude that although §828(2)(1) provides that a person between the ages of seven and ten is not liable for damage due to a collision with a motor vehicle, it does not excuse the defendant in the circumstances of this case.

a) The facts of this case, as the court below realised, fall within the wording of the new version of §828(2)(1) regarding the exemption of minors from liability. There is no suggestion in the wording that the exemption from liability depends on whether the vehicle involved in the accident was moving at the time or, as in our case, stationary. Nor can one infer from the placing of the provision in the Code that the legislator was concerned with the way the vehicle was being used at the time, given that the provision was intentionally placed in the general law of delict rather than the Traffic Law. Thus interpretation based on wording or location cannot lead to the conclusion that §828(2) BGB applies only to cases where the vehicle was in motion.

On the other hand the wording of the provision does not permit one to deduce with certainty that it is to apply to every accident whatever, provided a motor vehicle was implicated. This, indeed, is shown by the different opinions which have been published since it came into force. .. Accordingly, it would not constitute an impermissible construction of an unambiguous provision contrary to its wording and meaning or one which significantly changed its scope if we interpreted the provision restrictively or teleologically, as has been proposed, so as to exclude parked vehicles from its coverage, .

b) Since the wording of §828(2) BGB is not unambiguous, one must try to ascertain the objective intention of the legislator by using other criteria of interpretation. In this case the travaux pr¿paratoires are particularly important, for they make it sufficiently clear that in the light of its meaning and purpose the exemption from liability under §828(2)(1) BGB is to apply only when the facts of the case disclose a typical situation where the child has been put in a difficulty owing to the specific dangers of motorised traffic.

By making §828(2) an exception, the legislator recognised the fact that in general children of ten years old, if not younger, are able to recognise the special dangers of vehicles on the highway , and in particular to judge distance and speed fairly accurately and so conduct themselves as to avoid danger. As to children under ten years old It was not the intention to exclude all delictal liability whenever they were involved in a traffic accident: the aim was rather to exclude delictal responsibility whenever damage suddenly resulted from the use of vehicles in streets and highways to a child not old enough to judge correctly of distance and speed. Such a limitation was sensible in that children often find themselves in a situation of particular difficulty given the speed and complexity of traffic accidents and the unforeseeabiity of their consequences. It is in such situations that the child's lack of development is particularly disadvantageous. By contrast there is no comparable danger when the road or other places visited by children are free from motor traffic. These considerations show that even a child in the relevant age-group of seven to nine should be held liable for the damage he does unless the situation is one where he should be excused because the specific dangers of motorised traffic placed him in a position of difficulty.

It cannot be inferred from the wording of §828(2)(1) that the legislator intended the exemption from liability to depend on whether the vehicle was moving or at rest, even though it is more likely to apply in the former case. In particular cases, of which the present is not one, the specific danger of motor traffic may arise even when the vehicle is not moving. Certainly, the explanation given with the legislation links the new §828(2) BGB with the liability provisions in the Traffic Law, but it goes on to state that in motorised traffic the age of delictal liability should be lowered because accidents can occur suddenly and the ability of the young to appreciate matters of speed and distance is reduced; this shows that what was critical for the legislator was not the mere presence of a motor vehicle but the fact that children under the age of eleven find it difficult to judge their speed and distance of motor vehicles.

....The exemption in question is not intended to cover other respects in which a child may find it difficult to behave properly on the highway. ...This is clear from the reason given for disapplying the exemption in cases where the damage is caused intentionally, where it cannot be said that the harm was attributable to the child's having been put into a difficulty. In traffic cases, however, the intention of the legislator was to improve the position of the youngster generally, and not make the protection depend on whether in the particular case the child was the "tortfeasor" or the "victim", seeing that it is often a matter of chance whether he is one or the other.

2. The appellant argues that that §828(3) is an obstacle to rendering him liable. This is not correct.

Under the case-law of this court a person has sufficient insight to render him liable under §828(3) BGB if, given the stage of his intellectual development, he is capable of appreciating the dangerous nature of his conduct and his responsibility for its consequences. It is not relevant whether he himself was capable of behaving properly in the light of such appreciation. It is for the young defendant to establish that he did not have the requisite insight , though this is rebuttably presumed in those over seven years old.

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