Non-Contractual Liability Requirements in Spain

Posted on Mar 1, 2025 in Law & Jurisprudence

Requirements of Non-Contractual Liability

Article 1902 of the Spanish Civil Code establishes four general requirements:

  • Human Behavior: A positive (action) or negative (omission) human behavior. In the case of a duty to act, the act should be voluntary and unlawful (antijurídico).
  • Existence of Damage: An impairment of a legally protected interest (property or personal damage).
    • Property damage (daño patrimonial): If assets are harmed.
    • Moral damage: If the personal sphere is affected (e.g., the pain of the death of a relative).
    • Bodily damage (daño corporal): When physical integrity is affected.
      • Property damage can be actual loss (damnus emergens) or loss of profit (lucrum cessans). For example, a cinema fire implies the duty to provide compensation for the value of the stall seats and to provide compensation for the loss of profit during the period in which the cinema is closed for repairs (art. 1106 CC).
    • The duty to repair the damage implies:
      • An attack against a legitimate interest.
      • The damage must be real, not a mere hypothesis or a remote possibility.
      • It must be a current, future, or subsequent (sobrevenido) damage.
    • Future damage is damage which will surely take place, and the extent of which is already known.
    • Subsequent damage (sobrevenido) is caused by a former action or omission and will come later in the future. Its extent is not already known (e.g., physical sequelae or consequences caused by an accident).
  • Causal Relationship: The cause-and-effect relationship between the human behavior and the damage.
    • The causal link contains two elements:
      • Causal link in a strict sense: Courts used to check whether the normal circumstances required are done so by common sense to cause damage.
      • Proximate causation (imputación objetiva): Use of the techniques of objective and subjective attribution of responsibility. Once it is checked that there is a causal link between the human behavior and the damage, the next step is to decide if it is possible an attribution of responsibility to the individual who performed the act or the omission. Proximate causation implies a duty to guarantee (e.g., an omission can only imply responsibility if there is a previous obligation to provide assistance).
  • Blameworthiness: Blameworthiness (reprochabilidad) of the behavior that causes the damage.
    • Traditional position: There is no liability without fault or neglect (lack of diligence) or willful misconduct or gross negligence (dolo: acting in the knowledge of the consequences that produce the act, a sabiendas).
    • Modern position: Non-fault liability is possible in the case of objective liability (e.g., in the case of an airplane accident, the airline company will be objectively liable for compensation for all damages caused because the law requires it to do so. Furthermore, it is not necessary to prove the fault of the airline company).
    • Circumstances that imply an exemption of liability (exoneración de la responsabilidad):
      • Fortuitous events of force majeure (acts of God) (caso fortuito o fuerza mayor) (art. 1105 CC): In other words, the damage is a result of an unforeseeable or unavoidable event (e.g., an earthquake or a tsunami).
      • Sole negligence of the victim or victim’s contributory fault (culpa exclusiva de la víctima): E.g., a passer-by is hit by a car because the victim jumped onto the road attempting to commit suicide.
      • Legitimate defense: Only if the force used is commensurate with the damage suffered or that could be suffered.
  • Reparation for Damages:
    • The reparation for damages is the legal consequence of the norm included in art. 1902 Cc. Whoever is liable for harming another is bound to repair the damage caused.
    • The compensation should cover the complete damage.
    • How is the damage compensated?
      • Specific form compensation or in natura compensation: The thing must be given back in the same condition it was before the damage.
      • Pecuniary equivalent compensation: When specific form compensation is not possible, it will be paid by the pecuniary equivalent as compensation for damages.