Editors: Prof. Abog. Roberto Carlos Araujo Alonso
1-Fuentes voluntary.
In our daily comings and goings in the society, necessarily suffer and we suffer some negative consequences for our actions or Moreover, even without the element of will for this.
Human existence implies a continuing danger, making both life, health, physical or psychological, as the assets need protection in the event that those legal interests are damaged.
L
to legal science has given these facts do not volunteer the opportunity to become sources of obligations, even if it was a lawful act, classifying them as liability, ie, that liability arising out of contracts taking into account the lack of volitional element to your configuration.
damage attributable :
damage in ordinary language means injury, harm, injury, impairment. Applied to the matter of obligations, this indicates the property or moral damage suffered by the creditor for the debtor's default, but by extension the same term means of compensation to be paid for such deterioration.
Concept: Lafaille defines it this way: "The damage is the compensation they are entitled to the creditor for the detriment suffered in their property and left to perceive the utility because of failure to liability for the pain. ".
civil liability as a result of damage unjustly based on the familiar principle enshrined since ancient Roman saying" nom Alterun laedere "that is, not to harm anyone.
2.1 Development
today.
In the traditional concept, the damage involves a loss of property. It's called "patrimonial concept" of injury, so to speak of the damage was to see if act was an impairment in the "have".
While under modern concept or current damage is the injury to the person. This is the "personal views" of injury. That is, the patrimonial concept has joined the personalist concept of damage, because today we can speak of both material damage, personal and moral. (Arguello)
Our Civil Code:
Our system is an independent civil damages in relation to breach of contractual obligations in relation to the facts illegal. The method of the Code is reasonable, because failure to repair a contract causes problems other than those arising from a wrongful act which justifies separate treatment of both issues.
of contract establishes the principle of monetary compensation: Article 450
In non-contractual matters, however, placed first in its natural repair but left open the possibility for financial compensation, if not possible restitution in kind: Art 1857 CC
2.2 Rationale of the obligation to make reparations
Any damage caused must be repaired directly or indirectly, that is, any damage implies responsibility, and if no responsibility should be repaired. Subjective responsibility
: According to this theory, guilt is an essential element to the complaint, ie, to determine if the perpetrator of the crime is or is not civilly liable and obliged to compensate accordingly. Should be determined whether it was negligence or fraud when it made the event, then it was not responsible, and therefore was not obliged to pay compensation. So, just to prove his non-guilt was enough to be exempt from liability. According to this theory that the author is not enough to cause damage to repair, but must be negligence or fraud.
Strict liability: Under modern doctrine, the law must "look" to the victim, ie, keep in mind the damage. Today the right is interested in the victim and the damage it suffered.
Therefore, the compensatory rationale shifted from guilt of the party, the harm suffered by the victim.
In our Civil Code as a source of damage attributable to the obligations are regulated under Title VIII, in the form of tripartite responsibility, that is, no civil liability if the act or action causing injury and therefore the obligation to repair -
For made their own. Section 1833 .-
vicarious, Art 1842, Art 1846
2.3 Budget.
to the subjective theory, that the act is attributable to the agent, there should be damage and intent to provoke. (Art. 1833 part I)
to the objective theory, however, there is responsibility once caused the damage, regardless of the intent of causing damage, ie not any fault. (Art. 1833, part II)
As can be seen, in the same article of the Civil Code has both theoretical currents studied. (Centurion)
2.4 Elements.
To have responsibility, and therefore the duty to compensate, according to Arts. 1,833, 1,842, 1,846 and 1,855 will need the following:
Damage: is the essential element that has liability and therefore the obligation to repair.
Causal link between the act and damage: The damage must be direct or indirect consequence of the fact relied on as a producer or generator of such damage. So much so that the fact relied must have been the cause of the damage.
Liability or responsibility: That is identified the perpetrator that has caused the damage, as well as the subject is attributable civilly, as if unimpeachable, then it would not directly responsible, which means that demand must be directed against the person who would be " principal. "
The illegality: is not a necessary element for the exercise of a lawful act can cause damage which must be answered regardless of the criminal liability may have. Section 1846 (Arguello)
2.5 Content
Repairing the damage can be of two ways: direct repair or rebuilding, also called a repair in kind, and indirect compensation or equivalent, commonly known as compensation. Section 1857.
The tortfeasor is obliged, first, the direct compensation, asserting that that the author should, if possible, rebuild the thing or object damaged or injured. Since it is not possible this service, you must repair indirectly, ie, is obligated to pay money to the creditor in return for the damage.
The obligation to repair covers the entire material injury or moral damage caused. The first is the injury to tangible property, property damage, and the second is caused to the conditions, feelings, honor, reputation etc. However, any damage is likely valuable consideration, including moral damage which in principle has no economic value, but for the purposes of their compensation is given a monetary assessment. (Arguello)
2.6 The Agent's Liability.
The agent or perpetrator that has caused the damage must be attributable civilly, as if it is unimpeachable, it is not directly responsible This implies that demand must be directed against the person who would be "primary" under Article 1842 and ff. CC
are not to blame those who have a disability in fact, relative or absolute and Section 1843 refers to the responsibility which therefore corresponds to their legal representatives.
3 - Guilt
Indeed, guilt is any way unlawful conduct, act or omission involving negligence, incompetence or recklessness on the agent. Is the set of assumptions that underlie the personal blameworthiness of unlawful behavior.
In the fault is a violation of a rule of conduct and it is this violation is one that generates the obligation to repair the damage caused by it.
unjust injury arises from a relationship that aims at the agent's responsibility and effect of compensable damage repair. Wrongful injury the rights of others creates responsibility in our legal system (Silva Alonso)
4 - liability without fault.
The Civil Code Section 1846 establishes a modern doctrine called theory of the risk created, which means that all person to perform an activity or to practice their profession creates a risk is potentially liable to indemnify in the event that this risk may result in a real and effective damage. For the perpetrator is liable for damage need not have acted with fault. If defendant is not relieved by simply showing that he did not blame or not acted negligently, but will be required to prove in the process, that damage was caused by the fault of the victim or another person who should not respond, or ultimately by force majeure.
Therefore, the basis of liability for damage caused is not to blame but the risk created, which the civil principle called the doctrine which is in their own interest, work at your own risk, in other words the load which has the advantages with the disadvantages.
theory assumed by our Civil Code:
Our legislators have set the objective theory, and thus have led to a breakthrough in the so-called theory of strict liability or no fault.
We can therefore say that in our Civil Code, the rule is that all damage must be compensated and the exception is the absence responsibility for compensation, in other words, if there is damage, liability shall, and the result will be the compensation. (Arguello)
5 - Relationship between the act and damage.
The obligation to indemnify supposes the existence of an injury to another. This implies that there must be a cause and effect relationship between the act and the harm caused, there are several theories about:
conditio sine Theory cause: an act may be considered cause of a later time if he had missed the previous fact, the post has not been produced. It is called theory of equivalence of the conditions. This theory is criticized because the causal relationship extends to infinity.
b) the proximate cause theory: according to this theory, only the proximate cause is relevant and of itself excludes the most remote. Is a reaction to the previous theory is criticized for not always the last condition is the true cause of the damage.
c) Theory of Efficient Cause: is the holding that the case is that of greater efficiency in the production of damage. The criticism that is made is: Based on what criteria would distinguish between different causes will decide the most efficient?
d) adequate Cause Theory: to this theory the problem is whether the act or omission to which the damage is attributed, was usually able to produce, ie, it should be consider what usually happens. Today is the prevailing theory.
6 - active and passive subjects of an action for damages.
action should be directed against the author of the event for the damage (Art. 1833 CC). When there is doubt as to responsibility or if the perpetrator acts under an agency relationship or with permission is recommended that the claim is directed against the author and against the "principal" at the same time. When the damage is attributable to several people the action may be directed against any of them, but the effects generated several liability, you should run against each other. 1841 Art
With respect to the subject assets, we can say that the action lies with the victim, or in case of death to heirs (Art. 1835 CC). Compensation for moral damages can only be exercised by the victim, but if she has died as a result of injury, this action passes to heirs. Section 1840 .-
7 - Indirect Victims.
According to Article 1835, primarily for the victim to the action to claim compensation for damage, but if it dies, the heirs forced it. Likewise, as expressed by Section 1840 of the Civil Code deduce corresponding compensation for all persons who have been harmed as a result of injury to the victim. These people may be the wife, mistress, children, parents of the victim or the mother of an unborn child.
8 - Relationship between the civil and criminal action.
For criminal liability must be certain assumptions, such as the attribution of the author, the culpability and because of them the punishment, however, there is liability for the road is much shorter, you look at the damage suffered by the victim and to be damage, there must be a responsible and consequently the obligation to repair.
should be noted that the criminal action, is also fine, in addition to imprisonment, penalties that affect the assets of the condemned, and it is convenient to analyze this kind of sanction to avoid confusion with emerging civil penalty of the crime, always starting from the principle that he who is criminally responsible, it is also civilly liable, ie, all criminal act results in civil liability, provided that the offense has caused damage, but not vice versa, or tort does not bring criminal consequence.
Our Civil Code regulates this issue in Art 1865 to 1871. (Arguello)
Prof. Abog. Roberto Carlos Araujo Alonso
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