Civil liability can have a contractual origin, when damage is generated in the performance of a contractual obligation, or a non-contractual origin, when damage is generated in which a contractual legal relationship is not involved. However, case law, by means of the doctrine of the unity of civil fault, has admitted the possibility that both can be invoked in the same case.
At BELZUZ ABOGADOS in our speciality of Insurance Law, on certain occasions we have seen that, in a civil liability claim, it can be appreciated that the damage comes from the defective execution of a contract, but also damages the generic mandate not to harm another.
In these cases, it is true that either the contractual liability action, provided for in Article 1.101 of the Civil Code, or the non-contractual liability action, provided for in Article 1.902 of the Civil Code, can be chosen.
In this sense, the action of contractual liability has as a basic presupposition the existence of a prior legal obligation, that is to say, of a contract or a prior agreement; being that, within this contractual relationship, either by fault or by lack of diligence in the fulfilment of the obligation, damage may occur.
On the other hand, the tort action does not require the existence of a contractual link, being a damage caused by fault or negligence of the agent.
However, on certain occasions, we have seen what the doctrine has come to call ‘Unity of Civil Fault’, which has been admitted by the doctrine, citing, among others, SAP Madrid, Sect. 18, no. 84/2018 of 19 February, ref. 837/2017 (ECLI:ES:APM:2018:3160) which points out the admissibility of the exercise of both actions (contractual and non-contractual liability), stating, citing the Supreme Court, that the only thing that binds the judge are the facts of the claim, being that he can frame the facts in one or the other liability regime in accordance with the principle iura novit curia:
‘Many judgments in this Chamber, based on the principles of the unity of civil fault and the juxtaposition of contractual and non-contractual liability, have declared that the only binding factor for the judge, from the point of view of congruence, are the facts of the claim, while the judge is free to classify the defendant’s conduct as contractual or non-contractual fault because it falls within his powers to apply the relevant rule in accordance with the principle of ‘iura novit curia’; thus, judgments of 15 June 1996 (appeal no. 3269/92 [RJ 1996\4774 ]), 18 February 1997 (Appeal No. 892/93 [RJ 1997\1240 ]), 24 July 1998 (Appeal No. 918/94 ), 17 September 1998 (Appeal No. 2107/94 ), 16 October 1998 (Appeal No. 2165/94 [RJ 1998\7565 ]), 28 December 1998 (Appeal No. 925/94 [RJ 1998\7565 ]), 28 December 1998 (Appeal No. 925/94 [RJ 1998\7565 ]), 28 December 1998 (Appeal No. 925/94 [RJ 1998\7565 ]), 28 December 1998 (Appeal No. 925/94 [RJ 1998\7565 ]), 28 December 1998 (Appeal No. 925/94 [RJ 1998\7565 ]) and 28 December 1998 (Appeal No. 925/94 [RJ 1998\7565 ]). 925/94 [RJ 1998\10161 ]), 8 April 1999 (Appeal No. 3420/94 [RJ 1999\2660 ]), which definitively established the doctrine of the unity of civil fault and the integration of the cause of action solely on the basis of the facts of the claim., 24 December 1999 (appeal no. 1023/95 [RJ 2000\1612]), 29 December 2000 (appeal no. 3602/95 [RJ 2000\9445]) and 3 December 2001 (appeal no. 2323/1996 [RJ 2001\9856]), with the judgement of 6 May 1998 (appeal no. 710/94 [RJ 1998\2934]) also worthy of note in that it extends the judge’s freedom to consider the applicable limitation period. Finally, some other judgments add certain nuances to the doctrine of the unity of civil fault, justifying its application if both actions are cumulative (judgment of 23 December 2002 in appeal no. 1761/97 [RJ 2003\914]) or placing the emphasis on the cause of action, but without ignoring which would have been the limitation period debated in the litigation (judgment of 7 October 2002 in appeal no. 923/97 [RJ 2003\357])’.
Thus, being the claim for compensation, the choice of the specific action would belong to the sphere of knowledge of the judge (STS, 1st , 279/2011 of 11 April, rec: 1731/2006), and can be raised jointly because it is possible to exercise both, whether alternative, subsidiary or optional in order to always work towards obtaining the maximum possible compensation, as reasoned by STS, 1st , 89/93 of 15 February, rec: 1377/1990.
Thus, among others, the SAP Madrid, Sect. 11, no. 73/2011 of 2 December, rec. 275/2008 (ECLI:ES:APM:2010:20178) gives us the basic basis for joint exercise, stating that both liability actions can be invoked when the event causing the damage is, at the same time, a breach of contractual obligation and a violation of the general duty not to harm another, as well as exact reparation of the damage.
2.- On the nature of the enforceable liability and the applicable doctrine and case law: As the SAP Madrid of 1 December 2008, Section 14, in a case similar to the one in question, for the fall of a person in certain installations, states: ‘The treatment in the appealed judgment of the liability demanded in the claim as liability for non-contractual fault, instead of contractual, is not relevant since, for the purposes of the litigation, the same principles apply. Moreover, it is accepted by case law that the injured party can bring both actions alternatively or subsidiarily or opt for one or the other, even providing the facts to the court so that it can apply the rules that best suit it, based on the so-called compatibility of compensation and juxtaposition of contractual and non-contractual liability, the principle of unity of civil fault, when the fact causing the damage is at the same time breach of a contractual obligation and violation of the general duty not to cause damage to another, and exact reparation of the damage, all precisely in favour of the victim and in order to achieve the fullest possible compensation for the damage. …-.. Now, both contractual and non-contractual liability respond to the idea of fault or negligence in the performance of obligations and, in general, consist either in the voluntary omission, albeit without malice, of the diligence required in human relations, through the application of which a result contrary to law and undesired could have been avoided – non-contractual or tort liability – or in the voluntary action or omission, also carried out without malice, which prevents the normal performance of a contractual obligation – contractual liability-…
Therefore, since both legal institutions of liability respond, effectively, to the idea of fault or negligence, consisting, in any case, of the omission ‘without malice’ of due diligence in social relations, it is possible to invoke both for their application by the judge by virtue of the aforementioned ‘iura novit curia’.
In conclusion, given that the ultimate idea of the action, both in contractual and non-contractual liability, is the reparation of damage caused by a lack of diligence, it is admissible, if there is a prior legal relationship between the tortfeasor and the victim, the exercise of both actions, both contractual and non-contractual liability, provided that the basis of the latter is the contravention of the generic mandate not to harm another.
From the Insurance Law Department of Belzuz Abogados, we are at your disposal to analyse your problem in matters of civil liability and insurance in the most professional, efficient and solvent manner.
Mikel Reyna Escalera
Abogado Senior -Departamento de Seguros
España
BELZUZ ABOGADOS SLP, Insuralex´s Exclusive Member in Spain and Portugal
