The responsibility of parents to their children from the 16th to the 19th Centuries
Anne LEFEBVRE-TEILLARD - Professor (université Paris 2 Panthéon-Assas)
Jacqueline MOREAU-DAVID - Professor (université Paris 5)
Marta PEGUERA-POCH - Professor (université de Nancy)
Olivier DESCAMPS - Professor (université Paris 2 Panthéon-Assas)
The history of parents' liability between the XVIth and the XIXth century is the history of the progressive acceptance of this institution during the three centuries that preceded the French Revolution, its official recognition by the civil Code in 1804 and its further denial towards the end of the XIXth century.
Criminal law, which has served as a basis for the civil liability regime, has long been an obstacle to admit parents' liability for a damage committed by their children. At the time where our study begins, criminal law refused not only to charge children below a certain age but also to charge the parents for a damage committed by their children. In spite of this, some local customs started to recognise parents' civil liability for a damage committed by their children.
During the three centuries that preceded the French Revolution, parents' liability is progressively accepted. This could be explain by a conjunction of factors: i) a more precise formulation of a general principle of tortious liability according to which everyone has to compensate for the harm or loss suffered by someone else as a result of its behaviour, ii) a broader interpretation of the causal link between the fault committed and the damage resulting from this fault and iii) further development of the moral of education underlining the key influence of parent's education on the behaviour of their children.
Parents' liability gained final recognition with the civil Code in 1804 in the famous article 1384 al. 4. At this time, this principle is closely linked to the strong authority of the father as parents' liability is in the same time the warranty and punishment of this authority. It is also viewed as a specific application of the general principle underpinning the civil liability regime and according to which "everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence". The first part of the XIXth Century constitutes the pinnacle of the parents' liability.
However, towards the end of the XIXth Century, two main evolutions, the decrease in the authority of the father on the one hand and the development of the concept of objective fault on the other hand, lead to the progressive decline of parents' liability.