A New Perspective On The Basics Of Civil Tort Liability In The Current Civil Code

• Author: Lacrima Rodica Boila
• Pages: 199-204

A NEW PERSPECTIVE ON THE BASICS OF CIVIL TORT

LIABILITY IN THE CURRENT CIVIL CODE

Associate professor Lacrima Rodica BOILĂ1

Abstract

The institution of Tort Criminal Responsibility faced this millennial beginning with a real "crisis" by

affirming reformist ideas placed between tradition and modernity, present and future, subjective and objective. The

increase and diversification of the damage, on the one hand, but also the real difficulties in identifying the responsible

person and proving his culpability, on the other hand, call into question the need to harmonize the legal norm with the

realities of social life, providing th e legal framework for reparation of all injustice caused. In the evolution of this legal

institution three phases have emerged: sanctioning, based on fault, aimed at punishing the guilty of produ cing damage,

reparation, based on warranty, risk and equity, aiming mainly to ensure the legal framework to cover the indemnity

independent o f the fault to the respon sible person for the restoration of the destroyed and preventive social balance,

consisting in anticipating and avoiding serious, immeasurable, environmentally damaging, human existence, not yet

produced but possible. Our study aims at presenting the main issues regarding the foundation of tort law in the current

Civil Code, taking into account the realities of contemporary society, to highlight the innovative, progressive aspects,

capable of providing more effective protection to the victims of the illicit deeds.

Keywords: civil liability, guilt, risk, warranty, equity, civil law.

JEL Classification: K13, K15

1. Introductory considerations

Having other European models, in particular the French Civil Code, the Italian Civil Code,

the Swiss Civil Code and the Civil Code of Quebec, Unidroit Principles and Principles of European

Contract Law, the current Civil Code has taken on new, modern regulations corresponding to the

realities of society contemporary. Compared to the 6 articles of the Civil Code of 1864, Chapter V

devoted Civil Liability of the current Civil Code contains in the 44 articles detailed regulations on

tort liability, from general provisions, to hypotheses of liability, exonerating causes of liability and

reparation of the prejudice .

The Vth book "On obligations" proposes a new structure for this area for a unitary approach

to all binding relations, without distinguishing which branches of law they belong to. The

distinction between civil relations and commercial relations has been waived in order to ensure

effective protection of all subjects of law, by removing legal regimes differentiations by

professional or non-professional status. In the 11 titles dealing with the matter of obligations are

regulated: general provisions on the content of the obligation report, provisions on sources,

modalities and types of obligations, execution, transmission, transformation and extinction of

obligations as well as a special chapter on the refund of benefits. Special contracts and

arrangements for guaranteeing obligations are treated in a distinct title.

As regards the Sources of Obligations, alongside the contract, unilateral act, licit business -

business management, unjust enrichment, undue payment - was added "any other act or fact that the

law binds the birth of an obligation".

In the field of tort liability, the previous regulations included well-founded solutions of

doctrine and jurisprudence: the regulation of the general negative obligation of "not to prejudice by

its actions or inactions, the rights or legitimate interests of other persons" (article 1349) the

establishment of clauses which could remove liability in the case of damage caused "by mere

recklessness or negligence" (article 1355), the specification of particular criteria regarding the

assessment of the culpability (article 1358), the determination of the conditions under which the

juvenile can answer for his own (article 1366) or unreasonable persons (article 1367), the

1Lacrima Rodica Boilă - Faculty of Economics and Law, University of Medicine, Pharmacy, Sciences and Technology, Targu-

Mureş; lawyer at Mureş Bar, Romania, boilalacrima@yahoo.com.