Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment
In Turkish law and its reference Swiss law, minors who possess the capacity of judgment are liable for tort through fault. In this sense, legislators do not discriminate between minors’ limited incapacity and adults’ full capacity to act in terms of tort liability. However, this statute does not pre...
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Istanbul University Press
2024-06-01
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| Series: | İstanbul Hukuk Mecmuası |
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| Online Access: | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/149784BCF89049E3BB41A52B0D9A0517 |
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| author | Hülya Atlan Gürer |
| author_facet | Hülya Atlan Gürer |
| author_sort | Hülya Atlan Gürer |
| collection | DOAJ |
| description | In Turkish law and its reference Swiss law, minors who possess the capacity of judgment are liable for tort through fault. In this sense, legislators do not discriminate between minors’ limited incapacity and adults’ full capacity to act in terms of tort liability. However, this statute does not prevent the consideration of the characteristics of children, who are protected at the constitutional and international level. In this sense, these characteristics that arise from a debtor’s minor should be considered, both at the phase when liability arises as well as when determining the damages. Above all, in order for a liability to arise, the minor must be determined to possess the capacity of judgment. Contrary to adults, the presumption of the capacity of judgment is not valid for minors and can be quite difficult to determine in some cases. Though consideration is to be made according to each concrete case in this regard, the age ratings accepted in doctrine and in judicial practice can be used as a guideline when determining the capacity of judgment. These age ratings are supplementary sources for guiding a judge in terms of determining the capacity of judgment.In addition to the moment when liability arises, the characteristics of a minor as debtor, should also be considered at the stage when determining damages. Consideration of their characteristics arises from the fact that being a minor is considered a reason for reducing the determined damages. Although no certainty on this matter exists in the code, being a minor is considered as a reason for reducing damages based on the doctrine of slight fault. Accepting the basis of the reduction in damages as the doctrine of slight fault is an insufficient justification that may also lead to inaccurate conclusions in some respects. The basis of the reduction should not be considered in terms of the grossness of fault but rather in terms of the characteristics of the minor themself. For this reason, minority should be considered as a distinct cause of reduction within the scope of the circumstance, as stipulated by Art. 51/1 of the Turkish Code of Obligations (Art. 43/1 of the Swiss Code of Obligations). |
| format | Article |
| id | doaj-art-dbc1cfd9e0fa4f008c8e1b542eac2ede |
| institution | Kabale University |
| issn | 2667-6974 |
| language | English |
| publishDate | 2024-06-01 |
| publisher | Istanbul University Press |
| record_format | Article |
| series | İstanbul Hukuk Mecmuası |
| spelling | doaj-art-dbc1cfd9e0fa4f008c8e1b542eac2ede2025-08-20T03:53:18ZengIstanbul University Pressİstanbul Hukuk Mecmuası2667-69742024-06-018217710310.26650/mecmua.2024.82.1.003123456Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of JudgmentHülya Atlan Gürer0https://orcid.org/0000-0002-0895-4410Balıkesir Üniversitesi, Balikesir, TurkiyeIn Turkish law and its reference Swiss law, minors who possess the capacity of judgment are liable for tort through fault. In this sense, legislators do not discriminate between minors’ limited incapacity and adults’ full capacity to act in terms of tort liability. However, this statute does not prevent the consideration of the characteristics of children, who are protected at the constitutional and international level. In this sense, these characteristics that arise from a debtor’s minor should be considered, both at the phase when liability arises as well as when determining the damages. Above all, in order for a liability to arise, the minor must be determined to possess the capacity of judgment. Contrary to adults, the presumption of the capacity of judgment is not valid for minors and can be quite difficult to determine in some cases. Though consideration is to be made according to each concrete case in this regard, the age ratings accepted in doctrine and in judicial practice can be used as a guideline when determining the capacity of judgment. These age ratings are supplementary sources for guiding a judge in terms of determining the capacity of judgment.In addition to the moment when liability arises, the characteristics of a minor as debtor, should also be considered at the stage when determining damages. Consideration of their characteristics arises from the fact that being a minor is considered a reason for reducing the determined damages. Although no certainty on this matter exists in the code, being a minor is considered as a reason for reducing damages based on the doctrine of slight fault. Accepting the basis of the reduction in damages as the doctrine of slight fault is an insufficient justification that may also lead to inaccurate conclusions in some respects. The basis of the reduction should not be considered in terms of the grossness of fault but rather in terms of the characteristics of the minor themself. For this reason, minority should be considered as a distinct cause of reduction within the scope of the circumstance, as stipulated by Art. 51/1 of the Turkish Code of Obligations (Art. 43/1 of the Swiss Code of Obligations).https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/149784BCF89049E3BB41A52B0D9A0517minor possessing the capacity of judgmentfault liabilityminorityslight faultreason for reducing damages |
| spellingShingle | Hülya Atlan Gürer Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment İstanbul Hukuk Mecmuası minor possessing the capacity of judgment fault liability minority slight fault reason for reducing damages |
| title | Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment |
| title_full | Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment |
| title_fullStr | Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment |
| title_full_unstemmed | Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment |
| title_short | Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment |
| title_sort | reviews on the characteristic of the liability for tort through fault of a minor possessing the capacity of judgment |
| topic | minor possessing the capacity of judgment fault liability minority slight fault reason for reducing damages |
| url | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/149784BCF89049E3BB41A52B0D9A0517 |
| work_keys_str_mv | AT hulyaatlangurer reviewsonthecharacteristicoftheliabilityfortortthroughfaultofaminorpossessingthecapacityofjudgment |