The civil liability of teachers and trainers for the acts of the Under-age Sportsmen, from the perspective of the New Civil Code of Romania.

Voicu, Alexandru Virgil ; Kis, Reka

Defining the Concept of the Civil Liability of the Teachers and Trainers for the Acts of the Under-age Sportsmen

The liability of the teachers and trainers is a form of the civil liability for the acts of other persons. This latter one is regulated by the section 1000 of the Romanian Civil Code and by the aricle 1372 of the New Civil Code.

Thus, the liability of the teachers and trainers is a civil liability (1). Two inherent principles particularize civil liability, namely the rule of restitutio in integrum (2) and the rule of restitutio in natura (3). Civil liability has two main forms, respectively tort liability and contractual liability (4).

Tort liability - looked upon as the common form of the civil liability - can be defined as one's legal obligation stemming from either a civil wrong, other than contractual ones, or injury for which a court remedy is justified. (5)

The contractual liability - thus, the special form of civil liability - is the duty of the debtor of an obligation assumed under a contract or agreement to repair the damage caused by his failure in performing in accordance with the contract; either by delaying the execution of his obligations, or by executing them only partially or not executing them at all (6). The contractual liability intervenes only between the parties of a contract, as a result of breaching a precise and a priorly determined obligation. Therefore, whenever the conditions of the contractual liability fail to fulfill, one should examine whether the damage doesn't meet the conditions of the tort liability, which is to be applied in that case (7).

Though tort liability and criminal liability are similar in some regards and are often linked together, they are not to be confounded. The essential differences between the two emerge from their different purpose and different field of interest: while the purpose of the tort liability is repairing damages caused by unlawful, extra-contractual acts, the purpose of criminal liability is punishing the criminals, seen as persons having extremely serious, unlawful behavior and to defend the society from the acts committed by them (8). Thanks to the repairing purpose of the tort liability, the main field of action of it is the patrimony of the debtor, while in case of criminal liability - due to its educating and protecting role (9) - the punishment of the author is pursued and therefore, the sanction has a more personal nature (10).

The tort liability of the teachers and trainers ought not to be confused with the professional liability either, since the latter one is not considered a judicial liability (11).

The tort liability can be classified as follows: the liability for one's personal acts, which is stipulated in sections 998-999 of the present Civil Code (12); the liability for other persons' acts, of whom conditions are stipulated in section 1000 (13) and finally the liability for the objects in one's custody, the rules of which are established by sections 1001-1002 (14). The fundamental difference between the liability for one's personal acts and the one based on section 1000 is the existence of negligence, as a condition of the liability: negligence is an indispensable condition for incurring the liability for personal acts, but the liability for other persons' acts can occur even without the negligent behavior of the one held responsible for paying the damages.

The section 1000 par. 4 from the Civil code stipulates the liability of teachers and artisans. Regarding the first category, in the field of sport, the subjects are the teachers and trainers, regardless their position and didactic rank, in primar education, as well as from club and associations with non-work purpose. The artisans in the field of sport can be defined as the teachers of physical education and the trainers who have the legal obligation to teach their apprentices a profession, or in this case, the profession of sportsman. Due to Law no. 69/200 and its subsequent modifications, only the persons owning the proper certificates and diplomas, obtained in accordance with the legal stipulations, can teach physical education and sport or can train sportsmen (15). When practicing their profession, both the teachers and trainers give instructions, educate and supervize their pupils.

The conditions and results of the liability

The activation of the liability of the teachers and trainers is preconditioned by categories of elements. Firstly, there are some general conditions that are inherent to all forms of tort liability and there are those special conditions that characterize only this type of liability.

The unanimously accepted general conditions are the unrepaired damage - that might be the consequence of breaching one's right or one's legal interest -, the illicit act, and the existence of a causality report between the illegal act and damage. The followers of the traditional theories of civil liability add the culpability of the doer, too to the general conditions (16).

The special conditions are the follow ones:

a the sportsman or sportswoman is under-age. Though some authors consider that the liability of the teachers or trainers occurs regardless the pupil's age, because the legal stipulations don't mention this condition (17), we adhere to the opposite theory. Otherwise, the liability of the teachers and trainers would be broader than the liability of the parents (18).

b the pupil commits the unlawful act while being or should have been under the supervision of the teacher or artisan, thus, at the school or club or association, or other organized activity, even outside the sport unit, as long as they are or should have been supervised by the teacher or trainer.

c the pupil causes the injury to a third person and not to the teacher or trainer. In this latter case, the teacher could be held responsible only based on sections 998-999 of the civil code (19).

If all the conditions are fulfilled, the teacher or trainer is liable for the acts committed by his or her pupil. If it can be proven that the sportsman or sportswoman had discernment when he/she committed the act, the victim can sue directly the sportsman/sportswoman, due to section 998-999. Moreover, the victim has the possibility to sue both the pupil and the teacher/trainer. Every time the pupil had discernment when committing the act and the existence of his/her fault can be proven, the teacher's or trainer's liability will be in solidum (20).

The basis of the liability

This section is probably the most important one of all, because the conditions of the liability, the extent, and the effects of it, even the persons held responsible depend on this.

The birth of the civil liability, as we know it, is linked to the law of Aquilia. The Law of Aquilia puts the basis of the obligation of a person to repair any damage caused by him or her intentionally or out of negligence to another person. It also stipulates the offence of damnum iniuria datum (damage unlawfully inflicted). The Law excludes the non-rational human beings from liability, such as children or mad people, establishing therefore the concept of subjective liability, for the first time (21). Despite all these, Ulpian, in the Supplements of the stipulations of this Law, in Digests 9, 2, 7, 4, points out some exclusion clauses regarding the primar, tort libility in sport activities. He argues that the Law won't apply to sport injuries, because these weren't caused with the intention of harming, but in order to attain glory and victory (22).

In the present, section 1000 par. 4 stipulates the liability of teachers and artisans. According to the traditional theory of civil liability, both the liability of the parents for the acts of their children and the liability of teachers and artisans for the acts of their pupils and apprentices is a subjective liability, based on the legal assumption that the prior ones have disregarded their educating and disciplining obligations, while the latters haven't complied with their supervising obligations (23). The shortcomings of this theory are the ones, as they follow: the difficulty or even impossibility of proving the culpability of parents, the liability of the minor as a precondition of liability of parents' and teachers (24) and the disadvantaged situation of the victim in case the assumption of culpability of the parents or teachers is confuted (25).

According to another theory, the parents' liability is a strict liability, the parents being responsible regardless their culpability. The plaintiff need only prove that the tort occurred and that the defendant was responsible. The basis of the liability is the idea of warrant, incurred by family solidarity. Only circumstances outside the parents' control, such as the act of God, the act of the victim or the act of a third person, could exclude their liability. In accordance with this theory, the teachers' liability remains a subjective one, based on the idea of their culpability as a consequence of their failure of supervising their pupils. Their liability will be removed if they prove that they have complied with their supervising and educating obligations and they could have done nothing in order to stop the students' deeds (26). In this latter case, the parents will be held legally responsible for their children's acts, due to their strict liability.

Even though the above mentioned theory seems interesting and fairly advantageous, we consider that the theory conforming to the idea that both the parents' and the teachers' liability is a strict one, seems more suitable (27) in the domain of sport activities. We chose to support this idea because of the special role of the trainer in the sportsmen's and sportswomen's education: unlike the teachers and artisans, who don't have the obligation of educating, but only of teaching or instructing, trainers - due to the specificities of the sport activities and their special assignment - also have the duty of participating in the sport education of the trainees, considered an objective of sport activities, focused on at casual trainings, competitions, sport performances and training camps (28). Thus, because of the the scpeciality of the trainers' liability, "parents can not be held responsible for their children's harmful acts, commited during their sport activities according to their age, because sport activities exclude the parents' possibility of supervision." (29) Therefore, the reasonable and just solution seems to be the strict liability of the trainers, they -and not the parents - having a warranty obligation for the acts of their pupils. In this case, both the trainers' and parents' responsibility can be excluded for the same reasons, namely circumstances outside their control.

For the future, the New Civil code stipulates the persons "who, due to their legal, judicial or contractual obligations, have to supervise an under-age person" (30) are generally liable for the damage caused by the person in their custody to others. The next paragraph stipulates that the liability subsists even if the one under supervision is exempted from liability because of his age or mental state. The Code also says that the one obliged to supervise can only be excluded if he/she proves that he/she couldn't have prevented the action of the minor. Thus, the New Civil Code includes the liability of teachers and artisans into this general category, without mentioning it separately.

Regarding the ground of the liability, some authors hold that the teachers' and artisans' liability (and thus, the trainers', too - s.n.) is and should always be subjective, based on culpability, while the parents liability is a strict one, regardless of their fault (31).

According to another opinion, which we agree with, both the teachers' and the parents' liability is a strict one. The arguments in favor of this point of view are the wording of the legal text, on the one hand, and the fairness of the solution, because of the special role of the trainer in the pupil's sport life, on the other. The benefit of this interpretation is a direct liability of the teachers, without being preconditioned by the pupil's culpability.

In the German law both the parents' and teachers' liability is based on the relatively assumed culpability of the person in charge with the supervision of the minor; the assumption can be confuted by proving that the responsible person has accomplished his/her supervising duty. (32)

Some other law systems, such as the Belgian, Italian, Spanish, Lebanese, of Quebec, Mexican, Senegalese and Algerian, adopted the traditional French view, in accordance with which in order for a person to be held responsible for the acts of the minor in his/her custody, it has to be proven that he/her has missed to accomplish his/her supervising obligations.

In the present, in France, the liability of the teachers is bound to the proof of their culpability regarding their way of fulfilling their supervising obligations. It is a direct liability for their personal acts, which is in causality relations with the damage inflicted by the minor. (33)

In this article we tried to gather the main legislative and doctrinal - past, present and future; domestic and foreign - solutions of regulating and interpreting the tort liability of teachers and trainers in sport activities, hoping to pick out the best one. In order to do this, first we defined the largest category of judicial liability and then tried to reveal the differentia specifica of the above mentioned tort liability. We hope that the present study will be a useful starting point for those who would like to go thoroughly into this topic.

Bibliography

Books

1. Anghel, Ion M.; Deak, Francisc si Popa, Marin F. - "Raspunderea civila", Ed. Stiintifica, Bucuresti, 1970

2. Boila, Lacramioara: Raspunderea civila delictuala subiectiva, Ed. C.H. Beck, Bucuresti, 2009

3. Mateut, Gheorghita: Tratat de procedur penal. Partea general. Volumul 1, Ed. C.H. Beck, Bucure ti, 2007

4. Pop, Liviu: Drept civil roman. Teoria generala a obligatiilor, Ed. Lumina Lex, 2000, Bucuresti

5. Reghini, Ionel; Diaonescu, Serban: Introducere in dreptul civil. Vol. 1, Ed. Sfera juridica, Cluj-Napoca, 2004

6. Statescu, Constantin; Birsan, Corneliu: Drept civil. Teoria generala a obligatiilor, Ed. Hamangiu, Bucuresti, 2008

7. Statescu, Constantin: Raspunderea civila delictuala pentru fapta altei persoane, Ed. Hamangiu, Bucuresti, 2009

8. Streteanu, Florin: Tratat de drept penal. Partea generala. Volumul I, Ed. C.H. Beck, Bucuresti 2008

9. Voicu, Alexandru, Virgil: Raspunderea civila delictuala cu privire speciala la activitatea sportiva, Ed. Lumina Lex, Cluj-Napoca, 1999

Articles

1. Boila, Lacramioara: Fundamentul raspunderii civile pentru prejudiciile cauzate de catre minori sau de catre persoanele puse sub interdictie in Dreptul nr. 3/2010

2. Pop, Liviu: Reglementarea raspunderii delictuale pentru fapta altuia in textele Noului Cod civil in Dreptul nr. 5/2010

3. Pop, Liviu: Discutii de lege lata cu privire la recunoasterea existentei unui principiu de raspundere civila delictuala pentru fapta altuia consacrat in Codul Civil roman in Dreptul nr. 8/2004

* By sportsmen we understand sportswomen as well, but in order to simplify the language, we might sometimes mention only the prior one.

(1.) The civil law is formed of the ensemble of judicial norms, which stipulate the general rules of the birth, modification, and end of private judicial relations and the content of these. (Ionel Reghini, Serban Diaonescu: Introducere in dreptul civil. Vol. 1, Ed. Sfera juridica, Cluj-Napoca, 2004, p. 15)

(2.) restoration to original condition

(3.) As apposed to money damages,

(4.) Alexandru. V. Voicu,: Raspunderea civila delictuala cu privire speciala la activitatea sportiva, Ed. Lumina Lex, Cluj-Napoca, 1999, p. 41

(5.) Liviu Pop: Drept civil roman. Teoria generala a obligatiilor, Ed. Lumina Lex, 2000, Bucure ti, p. 177

(6.) ibidem

(7.) oicu, op. cit, p. 41, Beside this essential difference, there can be found others, such as the ones regarding the proof of neglijance, the extent of the damages, the divisibility of the liability of co-debtors, the legal competency, the extenctive prescription, the lawfullness of the exclusion clauses

(8.) Liviu Pop, op. cit, p. 172

(9.) Florin Streteanu: Tratat de drept penal. Partea generala. Volumul I, Ed. C.H. Beck, Bucuresti 2008, p. 3-9

(10.) As a consequence there are other major differences, such as regarding the application of the principle of legality, the egality of the parties, guilt or neglijance, sanctions, the legal capacity, etc.

(11.) For more details about the professional liability in the field of sport, see A. Voicu: op. cit, p. 69-74

(12.) Sections 1357 and 1379 in the New Civil Code

(13.) Section. 1372 in the New Civil Code

(14.) Section 1376 in the New Civil Code

(15.) Section 58 of Law 69/2000

(16.) The fault can be defined as the psychological attitude of the author of the illegal and injurious act toward the act and toward the consequences of it. (Liviu Pop, op. cit, p. 225) The fault has two components: the intellectual component - standing for one's ability to understand the social significance of his deeds - and the volitional component. The intellectual component is an indispensable part of the discernment, without which the latter one can't exist. Without the discernement, the civil liability for personal acts is unimaginable.

(17.) Ion M. Anghel, Francisc Deak si Marin F. Popa: "Raspunderea civila", Ed. Stiintifica, Bucuresti, 1970, p. 161

(18.) For further details, see: A. Voicu, op. cit, p. 312-313, In acelasi sens Constantin Statescu, Corneliu Birsan: Drept civil. Teoria generala a obligatiilor, Ed. Hamangiu, Bucuresti, 2008, p. 241, Constantin Statescu: Raspunderea civila delictuala pentru fapta altei persoane, Ed. Hamangiu, Bucuresti, 2009, p. 117, L. Pop, op. cit, p. 258, Lacramioara Boila: Raspunderea civila delictuala subiectiva, Ed. C.H. Beck, Bucuresti, 2009, p. 305

(19.) For further details, see A. Voicu, op. cit,, p. 313-314

(20.) Idem, p. 314

(21.) Idem, p. 10

(22.) Idem, p. 12

(23.) For more details, see: Statescu-Barsan, op. cit, p 216-220, 242

(24.) If there can't be proven that the child had the discernment of his deeds, he or she cannot be held liable and consequently - according to the subjective thery - neither can the parent or teacher. Thus, the victim is put in a disadvantaged situation.

(25.) For more details, see: Boila Lacramioara: Fundamentul raspunderii civile pentru prejudiciile cauzate de catre minori sau de catre persoanele puse sub interdictie in Dreptul no. 3/2010, p. 112-114

(26.) For further details, see Boila Lacramiora, Raspundera civila delictuala subiectiv ..., p. 303-305

(27.) Liviu Pop: Reglementarea r spunderii delictuale pentru fapta altuia in textele Noului Cod civil in Dreptul nr. 5/2010, p. 14 In a prior article, the author proposes the idea of admitting the existance of a general principal of the strict liability for someone else's acts, as stipulated in the section 1000 par. 1, I. thesis Civil code. In his view - and in ours, too - it would be unjustiafiable to have a lighter responsibility, depending of culpability, for parents and teachers, while having a strict liability for all the other people, usually less familiar to the child. (Liviu Pop: Discutii de lege lata cu privire la recunoasterea existentei unui principiu de raspundere civila delictuala pentru fapta altuia consacrat in Codul Civil roman in Dreptul nr. 8/2004, p. 72)

(28.) A.V. Voicu, op. cit, p. 308

(29.) Supr. Court, Criminal Section., dec. Nr. 183/1976, in RRD nr. 9/1977, p. 56

(30.) Section. 1372 par. 1 din Noul Cod civil

(31.) For further details, see L. Boila, Raspunderea civila delictuala subiectiva ..., p. 306

(32.) L. Pop: Reglementarea raspunderii delictuale ..., p. 18

(33.) L. Boil, Raspunderea civila delictuala subiectiva ..., p 308

by Alexandru Virgil Voicu ** and Reka Kis ***

** Prof. univ. dr. Alexandru Virgil Voicu, Babes-Bolyai University, Cluj-Napoca, Faculty of Physical Education and Sports

*** Reka Kis, Master Student of the Babes-Bolyai University, The Faculty of Law