Civil liability of guardians and trustees

The relevance of the topic is conditioned by the imperfection of norms on civil liability of guardians and custodians; the doctrine has not developed a coherent idea of contractual and tort liability of guardians and custodians. Judicial practice on disputes on contractual liability of guardians and trustees is contradictory. I. Civil liability of guardians of incapacitated citizens. According to the law, guardians are liable for the transactions of minors and are responsible for the harm caused by them. Judicial practice on contractual disputes concerning the recovery of utility payments for the use of residential premises by minor owners or tenants is contradictory. Courts either deny a claim against a guardian with reference to his/her lack of status as a family member; or claims against guardians are satisfied at the expense of the ward's property, but the guardians are not held liable in the form of penalties for late payment, as they did not enter into a contract with a resource supplying organisation on behalf of the owner. Similar rules are established by law for contractual and tort liability of guardians of adult mental patients who have been recognised as incapable. In disputes on contractual liability, the courts often rule that the debt should be recovered and the guardian should be held liable in the form of penalties. However, the Supreme Court of the Russian Federation in one of the cases rejected the claim precisely because the guardian did not conclude a contract on behalf of the incapacitated person. II. Civil liability of guardians of citizens with incomplete legal capacity. The law defines the subjects of civil liability for the actions of minors aged 14 to 18 depending on the type of such liability: they bear contractual liability on their own; when they cause harm, the trustees are held jointly and severally liable. In the doctrine there is an opinion about shared tort liability of trustees, with which we cannot agree. Adult citizens, limited by the court in their legal capacity, bear independent contractual and tort liability. The doctrine criticises this rule with regard to tort liability. Thus, the Civil Code of the Russian Federation should provide for a mandatory condition common for guardians of any ward, i.e. the conclusion of a contract by them on behalf of the ward. If the contract was concluded prior to the appointment of a guardian or placement of the incapacitated person in organisations performing guardianship functions, the guardians may be liable for the execution of the contract, but only at the expense of the ward's property. The guardian is not liable under such a contract. It seems that the distinction in the legal regulation of the tort liability of guardians is unjustified for persons with limited legal capacity due to mental disorder - when they cause harm, guardians, as well as guardians of minors, should be held subsidiary liable. Subsidiary liability of trustees under the contracts of any wards should not arise. The author declares no conflicts of interests.

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