References without law book default to BGB.

Case - Barn Arson

Facts

Paula (P) always tells her children Margret (M, age 5) and Bernhard (B, age 9) not to play with lighters, matches, and fire in general as it is very dangerous.

One day, P is gardening, while M and B are playing next to her. When the telephone rings, P goes into the house for a few minutes. While unattended, B grabs a lighter lying on a shelf near the veranda but not in plain sight and lights up neighbor N’s barn, which burns down completely.

What are N’s rights?

Solution

Slides Solution

Issue I: N against B (§ 823 I BGB)

• Issue: Can N claim compensation from B in line with § 823 I BGB?
• Application:
  • (1) Harm to property: → (+), N’s barn was destroyed.
  • (2) Action: → (+), the barn was lit up by B.
  • (3) Causality: → (+).
  • (4) Unlawful: → (+), no justification.
  • (5) Fault element (intention/negligence): B acted intentionally (§ 276 BGB). B is a minor (9 years old). Can minors act with fault? → § 828 III BGB applies. The fault element can be affirmed if B had the insight required to recognize his responsibility. It can be assumed that B knew what he was doing and that the ignition of someone else’s property is forbidden, especially as P had forbidden her children to use lighters.
  • (6) Financial loss: → (+), costs for the reconstruction of the barn.
• Conclusion: N can claim compensation from B in line with § 823 I BGB.

Issue II: N against B (§ 823 II BGB w/ § 306 StGB)

• Issue: Can N claim compensation from B in line with § 823 II BGB in conjunction with § 306 StGB (arson)?
• Application:
  • (1) Breach of statutory law: → (+), StGB (Criminal Code).
  • (2) Statute intended to protect another person: → (+).
  • (3) Faulty breach of statutory law: At what age are you criminally liable under the StGB? → § 19 StGB: from the age of 14 years on. → (-), B is 9 years old; therefore, he is not guilty of arson.
• Conclusion: N cannot claim compensation from B according to § 823 II BGB / § 306 StGB.

Issue III: N against P (§ 832 I BGB)

• Issue: Can N claim compensation from P in line with § 832 I BGB?
• Application:
  • (1) Damage caused unlawfully by a minor: → (+), B is a minor and unlawfully destroyed N’s barn (it is irrelevant whether the minor is liable himself!).
  • (2) Obligation of P to supervise: → (+), P is the legal representative (§ 1626 I BGB).
  • (3) Breach of duty to supervise: P told B not to use lighters and not to play with fire. It is not a violation of the duty to supervise if parents leave their 9-year-old child in the garden for a short period of time. The facts do not show indications that it was likely that B would light up something once left alone. P fulfilled the requirements of her duty. → (-).
• Conclusion: N cannot claim compensation from P in line with § 832 I BGB.

Overall Conclusion: N can claim compensation from B according to § 823 I BGB, but not from P.

Write-Up

Issue: Can N claim compensation for the destroyed barn from B or P under § 823 I BGB or § 832 I BGB?

Claim against the minor (B)

1. Tort Liability under § 823 I BGB
Issue: Does N have a claim against B for the reconstruction of the barn under § 823 I BGB?
Rule: Under § 823 I BGB, a person who intentionally or negligently unlawfully injures the property of another is bound to compensate for the resulting damage. Under § 828 III BGB, a minor between 7 and 18 is not liable for damage if they lacked the insight required to recognize their responsibility.
Application: B actively set fire to N’s barn, causing its destruction. This is an unlawful injury to N’s property. The key issue is whether 9-year-old B acted with fault. A 9-year-old child generally understands that playing with fire and setting a building ablaze is dangerous and wrong, especially when explicitly warned by parents not to do so. Thus, B had the necessary insight and acted with fault (intentionally).
Conclusion: N can claim the reconstruction costs from B under § 823 I BGB.

2. Breach of Protective Statute under § 823 II BGB w/ § 306 StGB
Issue: Does N have a claim under § 823 II BGB in conjunction with the criminal law against arson (§ 306 StGB)?
Rule: Under § 823 II BGB, a claim arises for the culpable breach of a protective statute. However, criminal capacity only begins at age 14 (§ 19 StGB).
Application: Since B is 9 years old, he lacks criminal capacity and cannot commit a faulty breach of the StGB.
Conclusion: This claim fails.

Claim against the parent (P)

Liability for breach of supervision duty under § 832 I BGB
Issue: Does N have a claim against P under § 832 I BGB?
Rule: A person obliged to supervise a minor is liable for damages the minor unlawfully causes to a third party (§ 832 I 1 BGB). Liability is excluded if the parent fulfilled their duty of supervision (§ 832 I 2 BGB). Parents have a statutory duty to supervise their child (§ 1626 I BGB).
Application: B (a minor) unlawfully caused damage to N. As the mother, P is legally obliged to supervise her child. The extent of this duty depends on the child’s age, character, and foreseeable dangers. A 9-year-old child normally does not require constant monitoring. Leaving a 9-year-old alone in a garden for a few minutes while answering the phone is generally acceptable, particularly since P had already instructed him on the dangers of fire, and the lighter was not left in plain sight. There were no specific indications that B would commit arson. Thus, P adequately fulfilled her duty of supervision and is exculpated.
Conclusion: N cannot claim compensation from P.