Civil Liability

Unit I: Civil Liability

1.1 Concept; Definition and non-voluntary sources of civil liability.

Civil liability is the obligation to compensate that arises as a consequence of

damage caused by a breach of contract (contractual liability) or to repair the
damage caused to another with whom there was no prior link (non-contractual
liability), whether in kind or by a monetary equivalent, usually through the payment
of compensation for damages. Díez-Picazo defines liability as “the subjection of a
person who violates a duty of conduct imposed in the interest of another subject to
the obligation to repair the damage caused.”1 Although the person who is liable is
usually the one who caused the damage, it is possible that a person other than the
author of the damage can be held liable, in which case we speak of “liability for the
acts of others,”2 as occurs, for example, when parents are held liable for damage
caused by their children or the owner of a vehicle for damage caused by the driver
while driving.

1.2 First Division:

Moral responsibility; Criminal and Civil.

Moral responsibility is the capacity and moral obligation that the subject has to fully
respond for the acts carried out, as long as they originate from free and conscious
behavior.

Criminal liability is the legal consequence derived from the commission of an act
classified in a criminal law by an imputable subject, and provided that said act is
contrary to the legal order, that is, it is unlawful; in addition to being punishable. All
human actions (understood as voluntary) that injure or generate a risk of injury to
an asset legally protected by the legal system (for example: life, physical integrity,
freedom, honor, public order, etc.) generate criminal liability. The commission of a
crime or misdemeanor will generate criminal liability.
Civil Liability. It is a civil obligation. This is stated in article 1,092 of the Civil Code,
according to which "civil obligations arising from crimes or misdemeanors shall be
governed by the provisions of the Penal Code", and in article 114 of the Penal
Code, which allows compensation for faults, for the purposes of civil liability, when
it establishes that "if the victim has contributed with his conduct to the production of
the damage or injury suffered, the judges or courts may moderate the amount of
his reparation or compensation".

1.3 Second Division:

Contractual Liability; Delict and Quasi-Delict.

Contractual: It arises from the total or partial breach of a contract and is governed
by art. 1146 and following of the C. Civil. When a party does not fulfill its
obligations, it incurs contractual liability, also when it performs poorly (called
defective performance), unless there is a cause for exoneration. The causes of
exoneration are generally unforeseeable events, force majeure and the act of a
third party. An example is the seller who does not deliver on time after receiving
the price and a cause for exoneration would be the act of a third party.

Criminal and Quasi-criminal. This refers to occurrences not governed by

contractual terms. The idea of contract is absent in this order of responsibility. It is
fundamentally enshrined in arts. 1382, 1383 and 1384 of the Civil Code,
constitutes the common law of our civil liability.

Art. Article 1382 of said code establishes a general provision that is common and
applicable to all orders of responsibility and at the same time to public order. The
provisions of this article are binding on both the principals and third parties
because they are a matter of public order.

The drafters of the Civil Code dealt with criminal liability in Arts. 1382 to 1386,
these articles regulate:

1) liability for personal acts (Arts. 1382 and 1383),

2) liability for the actions of another (Art. 1384, paragraphs: 2, 3 and 4);

3) Responsibility for the acts of inanimate things;

4) liability for the acts of animals (Art.1385) and

5) Responsibility for the ruins of buildings.

1.5 Constitutive Requirements of Contractual Liability.

CONDITIONS OR REQUIREMENTS OF CONTRACTUAL CIVIL LIABILITY: a) A

valid contract. b) A fact attributable to the contractual debtor (a fault or fault). c) A
causal relationship between the fact attributable to the debtor and the damage
(cause-effect relationship).

a) A valid contract. There can be no contractual civil liability in the absence of a

contract.

It should be noted that for liability to be established at the contractual level, a

contract must pre-exist, so it is important to determine from what moment the
contract arises. Likewise, it is necessary to know when the contract ends, because
when the contract has ceased, the liability is not contractual but delictual or quasi-
delictual. The Supreme Court of Justice has stated that when there is a unilateral
abusive breach of a contract by one of the parties, there is no longer a contract and
the liability arising from that fact is a criminal liability and not a contractual liability.

To determine the requirements for the validity of a contract we must refer to the
principles established by the Civil Code; since it is accepted that when the contract
is affected by a nullity, the liability is not contractual but delictual or quasi-delictual.

Ultimately, the scope of contractual liability will be determined depending on

whether the perpetrator of the damage and the victim are linked by a contractual
bond; otherwise, liability is
Delictual or quasi-delictual, as would be the case of a third party who associates
with one of the contracting parties to violate the contract; between the contracting
parties the liability would be contractual, while in relation to the associated third
party, the violation of the contract, the liability would be delictual or quasi-delictual.
 Civil Liability

Unit II: Guilt in Responsibility Different Facts that Compromise a Person

It is said that a person assumes civil liability for his or her personal actions: when
he or she himself or herself has personally caused the damage caused to the
victim.

Within the different spheres of criminal liability, it can be stated that liability for
personal acts constitutes common law liability.

Criminal liability, when the person has acted with the intention of causing damage,
in which case the applicable article is 1382 of the Civil Code, according to which
any act of man that causes damage to another, obliges the person through whose
fault it occurred to repair it.

Quasi-delictual liability, when the damage has been caused without the intention of
causing it, in this case the applicable legal provision is Art. 1383 of said code,
which provides that each person is responsible for the damage he has caused, not
only due to his own actions, but also due to his negligence or imprudence.

2.2.1 Definition of fault; Requirement and basis of liability.

Fault is the legal term that, according to Francesco Carrara, like negligence,
implies the "voluntary omission of diligence in calculating the possible and
foreseeable consequences of the act itself."

Requirement is a concept that has its etymological root in the Latin requīsitus. A
word that, in turn, comes from the Latin verb “requirere”, which can be translated
as “to claim” or “to require”. It is about that which is unavoidable or essential for the
development of something.

2.2.2 Guilt in Responsibility for personal acts.- Article 1382 and 1383 CCQ
A person is said to be liable for his or her personal actions when he or she, in a
personal manner, has caused the damage to the victim. Liability for oneself
constitutes common law liability.

The personal action of the author of the damage is susceptible to compromising his
criminal liability when he has acted with the intention of causing the damage, in
which case the applicable article is 1382 of the Civil Code, according to which any
act of man that causes damage or another, obliges the one through whose fault it
happened to repair it; or his quasi-criminal civil liability when the damage has been
caused without the intention of causing it, in this case the applicable legal provision
is article 1383 of said code, which provides that each person is responsible for the
damage he has caused, not only by his own act, but also by his negligence or
imprudence.

2.2.3 Risk Theory or “Ferenda Laws” and denial of guilt.

In civil law, the theory of risks raises the question of the fate of the parties'
obligations when the thing that is the object of the contract is lost as a result of a
fortuitous event.

This theory then assumes that we are faced with a bilateral contract, and that at
least one of the obligations of the parties consists of giving (alienating in a broad
sense) a specific thing (species or certain body).

According to the French Civil Code, the risk is that of the creditor. This is logical
because in French law the perfection of a contract generates "real effects", that is,
by the contract alone not only personal rights are created or established, but also
real rights, such as property. Thus, in French law, the contract of sale not only
gives the buyer the right to demand that the item be delivered to him, but also
makes him the owner. Therefore, the risk is always that of the owner (res perit
domino) who is at the same time a creditor (res perit creditore).

2.2.5 Different types of guilt in Positive Law.

In civil law there are three types of fault:

  Serious fault
 Slight guilt
 Very slight fault.

2.2.8 Absence of fault and force majeure.

In the absence of fault, the debtor is not obliged to prove the positive fact of the
fortuitous event or force majeure, that is, the cause of non-compliance due to
events of extraordinary, unforeseeable and unavoidable origin.