Civil and Criminal Liability: A Comprehensive Guide
General Liability Aspects
Tort liability arises from both crime and pure tort. It exists in the absence of a previous legal link. The act or omission can be considered an unlawful act and even a misdemeanor or felony.
According to the Civil Code (CC), the act or omission that causes harm, involving fault or negligence, obligates the responsible party to repair the damage.
Criminal Liability
Criminal liability is addressed in the penal code. It doesn’t require that damage has occurred. We evaluate the acts or omissions themselves, not external factors.
Guilt and Intent
Guilt arises when the victim contributes to the situation that caused the damage through their own actions or omissions.
Unlike German or Italian law, our CC doesn’t directly address this possibility, except in the law on liability and insurance in motor vehicle traffic, which allows for the moderation of responsibility.
If both the perpetrator and the victim are at fault, but it’s determined that either one alone could have caused the damage, the less severe guilt is absorbed, potentially leading to the exclusion of liability for one party.
Solidarity is a general rule: it’s only established when explicitly provided for. In contractual obligations, it’s determined by the original agreement. When the degree of participation of each party can’t be determined, they are considered joint debtors for the fixed compensation amount.
Guilt is the omission of the diligence required by the nature of the obligation and the specific circumstances of time and place.
Fraud involves the voluntary breach of duty, but it doesn’t require the specific intention to cause damage or harm.
Damage
Damage can be economic or personal.
- Material Damage: Involves an attack on the property or assets of others. We must distinguish between:
- Emergent Damage: Actual loss or reduction of the victim’s estate.
- Loss of Profit: Gain that was prevented or the inability to increase assets due to the damaging event.
- Moral Damage: Involves intangible aspects of individuals, such as emotional distress.
- Injury: Affects health and physical integrity.
The Causal Link
Liability is determined by establishing a causal link between the injury and the willful act or omission, negligence, or risk.
Damage Repair
Material damage is the financial loss suffered by the victim and includes the cash payment (damages) and the guarantee to obtain the expected profit.
According to LACRUZ, it would be unfair to deny the assessment of all profits. Loss of profits must be understood as what is reasonably likely. The CC supports the recovery of reasonable profits lost due to a breach.
Moral damage includes physical pain and suffering.
The penal code states that compensation should include both material and moral damage.
The law provides that compensation will extend to moral damages in cases of violations of honor, image, and privacy.
Indirect or Vicarious Liability
The CC states that the obligation imposed in this code applies to acts or omissions committed by individuals themselves and those for whom they are responsible.
Liability for Damages Caused by Animals and Inanimate Objects
The CC governs the owner’s liability for damages caused by things under their ownership, holding the responsible person accountable if they haven’t taken precautions to avoid damage.
In all cases, the owner would be liable unless they can demonstrate their lack of negligence.
Civil Liability of Directors
Principles of Liability
- Individuals are entitled to be indemnified by the government for all injuries they may suffer in any of their property and rights, except in cases of force majeure, whenever such harm is the result of the normal or abnormal functioning of public services.
Special Liability Regimes: Responsibility of Parents and Guardians
Parents are responsible for damages caused by children under their care. Guardians are responsible for damages caused by minors or disabled individuals under their authority and responsibility. This responsibility ceases when the individuals mentioned above demonstrate that they exercised all the diligence of a good parent or guardian to prevent the damage. Parental responsibility is established on the basis of warranty.
The owners or managers of an establishment or enterprise are liable for damages caused by their employees during the course of their employment. For liability to extend to the employer, the act causing the damage needs to occur within the scope of employment.
Individuals or entities that operate schools of higher education are not liable for damages caused by their minor students during periods when they are under their control.
Contract and Tort
When a contractual obligation exists and a party is injured, JORDAN FRAGA considers the contractual liability arising from the pre-existing obligation, regardless of its source (even without a contractual origin). He argues that the contractual obligation requires compensatory content and that a breach of a non-contractual obligation can give rise to contractual liability if it’s not voluntarily fulfilled.
Yzquierdo believes that the duty to repair damages is common to both areas and that we should speak of a general theory of repair common to both types of responsibility. The rules regulating liability for breach of contract cannot be mechanically applied to the identification and quantification of a non-contractual obligation.