Present and future of the civil liability

AuthorAída Kemelmajer de Carlucci
PositionSchool of Law, Mendoza University, Argentina
Pages1-19
1
PRESENT AND FUTURE OF THE CIVIL LIABILITY
Prof. dr. Aída Kemelmajer de Carlucci
School of Law, Mendoza University, Argentina
§ 1. Preliminaries
While the initial preparatory steps were taken for the French Civil Code, a
work which had such a great influence in the history of the western civil law, the
legal expert Tarride said: “The law protects the citizens: whoever suffers a
damage shall always find someone to repair it”.
Nevertheless, as it is known, article 1382
1)
of this code did not embed a
solution so wide and generous for the victims; it followed the teachings of Domat,
and it examined the fault; in other words, it does not order to indemnify all
damages caused, but only the culpably caused damages. It is a question of a “law
of closure” of a tort liability which, basically, is sustained by five articles
2)
.
Soon after the sanction of this code, the fault proved itself insufficient, by itself,
to cover all the scenarios which are worth be protected. Moreover, the plurality and
diversity of situations implied a more detailed regulation. It is stated that “In a
world where an accident is encountered at every corner, at every work place, in
every house, where the individual liberties, though solemnly proclaimed, are
breached daily, it is necessary to repair, to regulate and to sanction
3)
. The function
of repair has always been essential for the invoked civil liability; the function of
sanction, as seen later, continues to be seen as subject of discussions. The one
related to the older regulation is connected to the process of “decoding”; in fact,
until the conciliation of this phenomenon, the evolution of the civil liability,
especially of the non-contractual one, has been almost exclusively the fruit of the
jurisprudential work and not of the lawmaker: “The civil liability law is built from
scarce legal principles; to a great extent, it is a judicial law; it is the judges who, by
carrying out a permanent work of interpretative recreation, of carefully looking at a
changing social reality, with its correlative alteration of mentalities, have completed
the legal order with a complex of rules, derived from the necessity of solving the
multiform conflicts using criteria which do not simply flow from legal provisions
extremely syncopated”
4)
. Similar reflections result from the pages of one of the
1)
Art. 13 82 of the French CC disposes: “Any act of man that causes damage to another,
obliges the person by whose fault it happened to repair it”.
2)
An i mportant sector of the doctrine places a doubt on the idea that this should be the
Argentinian civil code system (see Bueres, Alberto, La culpa como norma de clausura, ¿es un
postulado verdadero ?, LL 2010-E-1220).
3)
Car val, Suzanne, La responsabilité civile dans sa fonction de peine p rivée, Paris, LGDJ,
1995, n° 20 p. 21.
4)
Medina Alcoz, Ana María, La función de la responsabilidad civil extracontractual, in the
Annual of the Aragonese Jurisprudence and Legislation Academy 2002 /2004, p. 490.
2
most respected Italian law teachers; I am referring to Francesco Galgano
5)
, who
states that, just as before they said that the law reform is sufficient to make a library
useless
6)
, today it is safe to say that such a uselessness may come from the change
of the jurisprudence, and he draws attention to the fact that, in spite of the unaltered
seventeen articles of the 1948 civil code dedicated to the non-contractual liability,
the changes in the field are enormous. Therefore, it may be stated that in the field of
the civil law, the theory of the liability is the one which, through the work of the
judges, has produced the greatest changes
7)
. Anyway, it is necessary to point out
that the permanent creation of jurisprudence is not always peacefully accepted
unanimously. In Spain, Diez Picazo underlines that “The civil liability law or the
tort law finds itself in a very sensible point of uncertainty due to the convergences
of the doctrinal and jurisprudential tendencies which have pushed, in the last
decades of its evolution, towards a very significant extension and, at the same time,
the factors which advise submitting it to a certain amount of restriction; the
intention to favor at maximum the viability of the indemnities has placed the legal
system in a certain crisis”
8)
.
§ 2. Concept and denomination. Presumed neutrality of the language
The psychologists, psychiatrists, psychoanalysts, anthropologists, men of
letters etc., state that the “language is not neutral”. Gilmore says that “A rose,
although we called it by whatever name, would have the same perfume;
nevertheless, if we begin to call the rose by other name, something is happening;
our conception or perception of the rose has changed; if not, we would continue to
call the rose as rose”
9)
.
From his perspective, the great Borges writes:
“if, as the Greek says in the Cratilo,
The name is the arquetype of the thing,
In the letters of the rose is the rose
And all the Nile flows through the word”.
On the other hand, to the vagueness and equivocation of the language, it is
added that occasionally, the words are not used only to refer to things or facts and
to designate properties, but they are also used to express emotions and provoke
them in others. “When a word has emotional weight, it affects its cognitive
significance; this is due to the fact that people extend or reduce the use of the term
5)
Galgano, Francesco, I fatti illeciti, Padova, Cedam, 2008, prolo gue, p. IX.
6)
The phrase is incorporated in the corrosive expression of Von Kirchmann, Julius H., in his
work, The Jurisprudence is not Science, written in 1847 translated by Antonio Truyol y Serra,
published in Madrid by the Institute of Political Studies in 1949.
7)
Geny, François, Risques et responsabilité, in Rev. Trim. de Droit Civil, 190 2-1-812.
8)
Diez Picazo, José Luis, Derecho de Daños, Madrid, Civitas, 19 99, p. 19.
9)
Gilmore, cited by Castronovo, Carlo, La nuova respo nsabilità civile. Regola e metaforma,
Milano, ed. Giuffrè, 1991, n° 23, note 147.
3
so as to have its significance comprise or exclude phenomena which appreciate or
reject, depending on the favorable or unfavorable acceptance”
10)
.
Therefore, it is not strange that the evolution referred to in the previous
paragraph should also include the terminology used. The expression “civil liability”,
has been preceded by the words “illicit facts” and it has been followed by others,
more or less known, such as “Tort Law” (largely known in Argentina), “Accidents
Law”, proper to the economical analysis of the law, especially in the US etc.
These terminological mutations imply that, in the 21
st
century, the response
theory is not only that of the illicit act, but also of the harmful act or fact, or, if
you want, the theory of the damage and its distribution; the illicitly caused
damage is a chapter of another subject, wider, that of the response-distribution
which functions irrespectively of the illicitness of the act which produced it. Not
only that the unjustly caused damage is indemnified, but also the damage unjustly
suffered
11)
. So, it is stated that “the civil liability has evolved from a debtbased
liability to a credit based liability
12)
; from a system fundamentally centered on
the defendant to one that essentially looks at the damaged actor.
Many years ago, but with the current criteria, the civil liability was defined as
“a legal technique consisting, essentially, in transferring, by a voluntary
interference changing the brutal course of the events, the burden of a person’s
damage who suffered it directly based on physical, biological, psychological or
social laws, to another person who is considered to be able to bear it”. However,
in order to legitimize this transfer, “it is necessary to have a relationship between
the damage and the person who will bear it, a relationship worthy of playing the
role of fundament of liability”
13)
.
Obviously, one cannot believe that the aforementioned evolution has come to
an end; the liability is, therefore, a reality under constant observation, even though,
in the end, it is still certain that, as Fernando Pantaleón says, “the compensation
does not eliminate the evil in the world; it simply changes it by the pocket”
14)
.
10)
Wences Simón, Maria I., Sociedad civil y ecologismo, in Casés Mendez, José I., Catástrofes
medioambientales. La reacción social y política, Valencia, ed. Tirant lo Blanch, 2010, p. 39.
11)
López Olaciregui, José M., El derecho de la responsabilidad civil como un sistema de
daños según principios subjetivos de justicia y equidad, Resp. Civil y seguros, year IX, September
2007, p. 111.
12)
Lambert- Faivre, Yvonne, The Evolution of the Civil Liability. From a liab ility debt t o a
Compensation Credit, translated by Eliana Nuñez, in Resp. Civil y seguro s, 1999, p. 971.
13)
Husson, León, Les transformations de la responsabilité, Paris, Puf, 1947, p. 329. The
author acknowledges, in note 1, that the inspirational source is Geny, François, Risques et
responsabilité, in Rev. Trim. de Droit Civil, 1902-1-812.
14)
Pantaleón, Fernando, Cómo repensar la responsabilidad civil extracontractual. También la
de las administraciones públicas, in the work coordinated by him, La responsab ilidad en el
derecho, Madrid, ed. Universidad Autónoma and State Official Gazette, 2001, p. 174, and in
Moreno Martínez, J . A. (coordinator) Perfiles de la responsabilidad civil en el nuevo milenio,
Madrid, ed. Dykinson, 2000, p. 439 and following.
4
§ 3. Some causes of the evolution. The insufficiency of the legal system
The causes generating this transformation are numerous. The following are
pointed out, among others:
(a) The technological change: technology has generated great progress in all
areas; for instance, the medical science now relies on a series of machines which
allow their operators to move with clarity in a field which, until recently, has been in
great obscurity; this involves, on the one hand, extending the notion of fault, namely
the due proceedings are extended to conducts which have not been due before (for
instance, to carry out certain examinations which previously have been inexistent); on
the other hand, paradoxically, the use of those instruments may create risks which
were previously inexistent and which now generate new causes of response.
(b) Situated at an extreme, Ulrich Beck talks about the “total risk society” to
point out the new risks created by a highly technological world whose characteristics
differ from those known so far
15)
.
In fact, in various occasions, such damages are not caused by an individual
conduct, but determined by collective, sometimes indefinite behaviors, (think, for
instance, in various companies that pollute a river, throughput a number of years,
during which new ones appear and older ones are closed etc.); in their turn,
damages are caused not only to certain persons, but also to diffused interests and
to homogenous individual interests, as well (the people living in the neighborhood
of that river, or those living downstream, the populations relying on the water
supply for household, agricultural etc. use). These changes imply new visions
over classical legal notions such as causality and legitimation. At the same time,
they imply the necessity to modify the ways conflicts are solved, since the
traditional procedural law proves to be clearly insufficient for their solution.
Moreover, on the one hand, there are reasons to consider new and possible
exemptions, such as for instance, “the risk of development”, namely, risks which
were unpredictable at the time when the technological conduct occurred, since the
scientific knowledge was insufficient for this predictability, but which, subsequently
and surely, causes significant damage (for instance, a drug whose serious secondary
effects are verified many years later). In Argentina, the jurisprudence showed
reluctance in accepting the notion of risk of development as exemption from liability.
In this regard, and against the silence of the law, it was decided that “Laboratories
must respond for the risks of development when introducing on the market a product
in default such as the antihemophilic concentrate which enabled the contamination
with the HIV virus even though it may be argued that the scientific knowledge of the
time did not allow the discovery of the defect”
16)
.
15)
B eck, Ulrich, Risk Society; Towards a New Modernity, translated by Jorge Navarro and
others, Ba rcelona, Paidós, 2006. This work has been published by the same publishing house i n
1994 under the title of “Risk Sociology”.
16)
Cám. Nac. Civ. sala H, 3 /8/2009, JA 2009-IV-218, ED 235-546 y en Responsabilidad c ivil
y seguros 2009 n° 11 p. 77.
5
On the other hand, new causes emerge forcing to take action since, even
though there is a scientific uncertainty, there is also the probability to produce
serious damage; thus, the caution is visualized as a notion different from the
prevention. In this sense, the Argentinean lawmaker examined the prevention
principle in the environment general law n° 25675
17)
.
(c) The situation described, including the plurality of risks, allows talking
about, as already mentioned, a true “law of accidents” and, consequently, about
the necessity to insure against these risks. Reference is made, then, to a real
“assurancielle” society, that is, a society in which everyone needs to be insured,
and whoever is not insured, becomes a true outsider of the system; hence,
whoever does not own a life insurance is not even able to get a loan from the
bank, which would ask for this “warranty” to whoever requests a loan.
The situation described above shows a system overwhelmed by norms,
insufficient to adequately solve new conflicts.
§ 4. Watertight compartments; the shifting of frontiers and its paradoxes
Perhaps one of the causes of the overflow is that, as always, the rules
governing the compensation of damage, alleged to belong to tight, separate,
distinct areas, regulated in different ways: contract and tort liability, damage
caused by the State and by particular individuals, national and international law,
reparation or punishment etc.
The boundaries of these areas are presented as real borders, whether by such
means, using its etymology, fronts to defend against enemies, real and imaginary alike.
I will prove that despite the almost “corporate” defense, the areas have been
contaminated by each other throughout time, especially because there are common
principles, subject to the peculiarities that characterize each area.
§ 5. Private and public law. Certain contaminations of the civil law
deriving from the public law and vice versa
More than half a century ago, René Chapus wrote a book whose title makes it
a true paradigm of the interplay between damage pertaining to the public law and
to the private law: “Public Liability and Private Liability. Reciprocal influences
of the administrative and judiciary jurisprudence”
18)
.
17)
As follow up to the Declaration of Rio, the Argentinian legislation disposes: “Where there
are threats o f serious or irreversible damage, the lack of information or scientific certai nty should
not be used as a reason for postponing cost-effective measures, depending on the costs of
preventing environmental degradation”. The above statements do not disregard the criti cisms of
the precautionary principle. See, for instance, Sunstein, Cass R., Ri sk and Reason, Security, Law
and Environment, Bs. As, Katz, 2006; by the same author, Laws of Fear. Bey ond the
precautionary principle, trans. De V.I.Weinstabl and other, Bs As, ed. Katz, 2 009.
18)
Paris, 1954, LGDJ.
6
These reciprocal influences are verified both in the countries that, like
Argentina, have a single jurisdiction, and in those of dual jurisdiction (a judicial
one, for the damage caused by individuals, and another administrative one for
those which originate in the State).
In modern terms, this contamination is proven without any subterfuge in the
following circumstances:
(a) A notion typical to the administrative law is incorporated to the private
law, the so called “faute du service”. Thus, art. 1353 of the Catala Project, one of
the most popular attempts to reform the French Civil Code, provides: “The fault
of the moral person extends not only to the one committed by a representative, but
also to the one resulting from a default in the organization or in the performance”.
The organization or performance default is a typical State liability notion
which has “contaminated” the commercial liability.
(b) It is emphasized that there is no reason to distinguish between damage
caused by aspects related to individuals and to the State; the regime should be
unique; therefore, for instance, there is no reason why, in terms of traffic
accidents, the answer should be different depending on whether a car of the same
type belongs to a public department or to an individual.
(c) We point out the notorious injustice of a difference deriving from the
administrative law concerning the direct action against the tortfeasor. What I mean is: a
sector of the Argentinean doctrine and jurisprudence denies to the victim direct action
against the clerk, granting exclusive action against the State. In other words, in the field
of public law, in the relationship victim/tortfeasor, the way has been opened to the
doctrine of the so called “clerk immunity”. In this regard, it is settled that “in the matter
of clerks’ liability, the sole responsible before the victim is the State, since the natural
person is not standing as defendant to answer”
19)
. According to the magnificent
expression dear to Lisandro Segovia
20)
, the liability of the clerks is a “dogma of the free
government”; unfortunately, in practice, it is eliminated by the analyzed tendency, since
the State rarely files an appeal against the clerk; moreover, it emphasizes a remarkable
inequality in relation to the private clerk who causes damage, and who, on the contrary,
is not liable to the victim, it is appropriate to legally free the private clerk from the claim
filed by the victim, as it is the case with the French jurisprudence in recent years
21)
.
19)
CS Salta, 24/5/2002, Díaz, U c/ Provincia de Salta, North-Eastern Law 2003, year 7, n° 1
p. 60. In this case, the claim against the former Minister of Education of the Province, the clerk
who subscribed the resolution was rejected.
20)
See, authored by me, Liability of the lawyer, of the court clerk and of the judge, Lessons
and Essays, Bs As, 1998/19 99, N ° 72/74, p. 37; The duty of the judges to repair the inflicted
damage, in Damage Law Magazine, N° 9, State Liability; Rubinzal, 2000, p. 93.
21)
In one way or another, this step has been taken in Argentina by Cám. Nac. Civ. sala G, as at
9/9/1998 (LL 1999-A-99), in a case of liability of a television channel for the inadequate use of the
image of a person. The court accepted the exemption of fault of standing as defendant filed by the
“program coordinators” based on the provisions of art. 80 of the Law 22.285 (Radiotelevision Law)
7
Before answering the question, it is necessary to clarify based on which
requirements this immunity of the private clerk would be produced. The requisites
are the following:
* A dependent relationship derived from a contract which implies true legal
subordination, either under private or public law.
* An omission of the diligence of the clerk which is intrinsically related to the
ordered mission, that is, it is inseparable.
* The clerk only acts culpably; if the damage has been produced by negligent
conduct, even in case of possible negligence, he/she preserves his/hers liability intact.
* The clerk acts exclusively in the interest of the company and not on his/her
own interest.
* The principal is organized in the form of a company.
Note that the immediate consequence of the clerk’s immunity is the fact that
the victim is deprived of a responsible person and, in this sense, undoubtedly, it is
a step backwards in the evolution of the civil liability; on the other hand, it might
seem inconsistent that the clerk should be civilly free, but, at the same time, may
be held accountable criminally if the culpable act is punishable by criminal law.
However, the following aspects should be taken into consideration: on the one
hand, the criminal liability, far from being an obstacle, ratifies the morality of the
response; in effect, the civil law would not put obstacles, in the corresponding
field, for the sanction of a conduct which, even though only faulty, affects
interests which the criminal lawmaker considers relevant. On the other hand,
although the victim loses a possible responsible person, this loss is normally more
formal than real as the clerk does not benefit from financial support.
Nevertheless, in relation to the previous aspect, the situation is dramatic in
Argentina. Many employees of transportation companies face the following situation:
in carrying out the function entrusted, they are the protagonists of an accident causing
damage to a third party; the company they are working for is bankrupt and with a
complex process of insolvency in progress; certainly, and as a consequence of the
accident, the employees are fired by the company, but their household– unaffected by
the family property or by any clause of no-seizure– is mortgaged so as to obtain funds
to indemnify the victim. The employee, thus, cannot avoid the execution of the good
where he resides with his family; meanwhile, in his turn, the clerk who has caused an
analogous damage is immune
22)
.
of which text stated: “The holders of the means of radio broadcasting and the acting person shall be
responsible for the content and development of the broadcastings and shall be subject to the sanctions
established by the present law, notwithstanding the provisions which might correspond to the
application of the penal law. The holders shall have the obligation to inform the Federal Radio
Broadcasting Committee about the facts imputable to its own personnel or to third parties, in those
broadcasting processes which may lead to the application of administrative or penal sanctions”.
22)
See, authored by me, Direct Action of the Victim ag ainst the Defendant, Au thor of the
Damage. The French Jurisprudence tendency which declares the “Immunity” o f the defendant
acting within the limits of his/her functions in Rev. de Daños, Bs As., Rubi nzal, 2003-I-85.
8
It is true that the solution should come from an insurance system that works,
but, for the moment, the Argentinean reality only displays its failure. It is true that
the victim has the right to be indemnified and, with respect to the damage infliction,
the victim is even more independent than the clerk, but there is no denial that, in
practice, this is a “war between the poor”. The Justice cannot solve the problems of
the Economy, but maybe it can eliminate a part of the inconsistencies of the legal
system. Hence: it either takes steps towards the immunity of the defendant
according to the aforementioned requisites, or it eliminates the immunity of the
clerk; otherwise, with respect to the principle of the equality before the law, the
regime in force does not pass the test of constitutionality.
(d) Probably, one of the clearest movements of the interplay of the frontiers is
produced when the law authorizes an administrative body to establish damage caused
by one individual to another. This solution appears in the law of the protection of
consumers subsequent to the reform operated in 2008 by Law 26.361 which provides:
“Article 40 bis: Direct damage. It is construed as damage or prejudice to the
rights of the user or the consumer, capable of valuable consideration, caused
immediately on its goods or its person, as a consequence of the action or omission of
the provider of goods or of the service provider. The enforcement authority may
establish the existence of direct damage to the user or consumer resulting from the
infringement of the provider of goods or services and may force the provider to
compensate, up to a maximum value of FIVE (5) Total Basic Basket for the
Household 3, published by the National Institute for Statistics and Census of the
Republic of Argentina (INDEC). The administrative act of the enforcement authority
shall be appealable by the provider according to the provisions of article 45 of the
present law and, once final, with respect to the direct damage established, it shall
constitute enforceable document in favor of the consumer. The amounts which the
provider shall pay to the consumer as direct damage established by administrative
path shall be deductible from other compensations which may correspond to it under
the same concept for actions possible to be instituted at the judicial headquarters”.
Certain authors argue that this provision is not constitutional, as an
administrative body establishes compensations which, according to the legal
system, should be liquidated by the court. I admit the difficulty of incorporating
the article transcribed in the system (as the category of direct damage is not easily
incorporable in the general regime of the civil code). Nevertheless, I clearly
understand that the lawmaker claims it offers a quick solution to minor damage
suffered by the typical consumers and, thus, avoid the long duration of the legal
trial. Moreover, the rights of both parties are sufficiently guaranteed: those of the
debtor, who may be listened to by an independent authority at the appeal to the
resolution of the administration; those of the creditor, who finds an enforceable
document in case the debtor does not pay, and if he pays, the collection of the
fixed amount does not impede him to claim other amount before the court.
9
§ 6. Contractual and tort liability. Trends towards unification
The binary liability system, specific to the French civil code, has been
followed by most nineteenth century codes thus establishing clear distinctions
relative to the prescription term, the extension of the recoverable damage, the
notion of clerk and assistant, the regime of liability exemption clauses etc.
However, in certain occasions, the limits between both fields are difficult to
mark
23)
; in other, the solution is quite unfair. This is why it is not surprising that,
in various areas, the difference has already disappeared, such as in the area of the
damage caused to the consumers (either in the national laws or in the EU
directives) or in traffic accidents, such as in the French law which governs them,
called Badinter law
24)
.
§ 7. Subjective and objective liability. Paradoxes
The differences between the subjective and objective liability are
characterized by paradoxes.
On the one hand, the position of the victim is favored; the notion of fault is
extended and the “objective fault” is accepted, an expression which includes a
contradiction in terms, since strictly speaking, it is essential for the fault to be
attributed to a subject with ability to discern.
On the other hand, suppositions according to which the victim’s situation is
extremely difficult are verified and special faults are required, that is, more
exigent; in other words, the proof of the mere fault of the defendant is not
sufficient, a plus being required. Thus, for example, in recent years, the
jurisprudence of the Argentinean Federal Court is truly aligned with the theory of
the real malicia, which imposes for the proceedings of the actions for damage
against the media when the offended is a public official, the proof of intent or at
least a gross fault, definitely closer to the intent
25)
of the defendant.
Moreover, at the other end of the pendulum, aggravating circumstances are
shown in the position of the offender, at least, in the area of the prescription
period, which are amplified. Thus, for example, Art. 2270-1 of the French civil
code (according to the version set by law n° 98-468, 17/6/1998), provides: “The
23)
I have made a reference to this aspect in my article The dual system of contractual and rort
liability in Arge ntina. Reflections over the inconvenience of its survival, publi shed in Rev . Anales
Derecho UC, temas de Responsabilidad civil, Legis, Sgo. de Chile n° 3, M arch 2008 p. 29 and foll.
24)
For an analysis of this law, please see Chabas, F., Traffic accidents, Paris, ed. Dalloz, 1995.
25)
The exaggerated and wrong application of the thesis of the real malicia is obvious in
certain sente nces in which it has been invoked even though none of the collectors should be an
official clerk; t his occurs with the one dated 8/6/2010, in re Canavesi, Eduardo Joaq uín and other
c/ Diario 'El Día' Soc. Impr. Platense SACI, Rev. D. de Flia y de las personas, year 2 n° 7 (August
2010), p. 282; as clearly pointed out by the dissident vote of Mss. Carmen Argibay, the case
affected the parents of a deceased young girl, who had no public activity whatsoever, and the
publication wrongly attributed the death to abortion practices.
10
tort liability acts are prescribed within ten years starting with the manifestation of
the damage or of its aggravating circumstance. If the damage was caused by
torture or other acts of barbarism, violence or sexual aggressions committed
against a minor, the action prescribes within twenty years”.
§ 8. New liabilities. Bank liability. Exaggerations? The causal relationship
The need to find people with financial means to pay the damage caused a
large opening in search for potential perpetrators. This phenomena is verified by
bank liability; “gone are the days when financial entities were considered
impeccable bodies, to the point of granting them the special power of self-creating
executor instruments based on the confidence aroused by the banks operating in
our markets; the days when banks were considered impregnable citadels are
turned to the times in which an objective liability is sought based on who is more
able to assume greater responsibility”
26)
.
Nowadays, the courts receive various claims, more or less reasonable; for
instance, the claim of a buyer of a department against which he financed the
construction of a building, imposing technical conditions and providing the
money as the work progressed under his control
27)
. Moreover, since the doctrine
raises the question of suing the bank that finances an important work, which could
not have been possible without this financial support and which, subsequently, is
harmful to the environment
28)
. There are those who say, forgetting, or perhaps
based on a new adequate causality concept, that the banks which supported the
authoritarian governments in Latin America are responsible for the damage
caused by these illicit authorities (people disappearance, deprivation of property,
increase of the external debt etc.)
29)
.
26)
Ka bas de Martorell, María E., The Bank today; critical revision of the liability criteria:
national and foreigner experience with special application to the Republic of Argentina of the
third millennium, in Banks’ liability before clients, Bs. As., ed. Rubinzal, 2006, p. 19 . The author
insists on this p osition in a more recent work, co-author with Martorell, Ernesto, New advances in
the field of aggravating bank liability, LL 2010-E-1060.
27)
Cám. Nac. Civ. y Com. Fede ral, sala II, cited in an article authored by me Liability of the
professionals in c onstructions, especially for the collapse of long term works, in Rev. Derecho de
Daños, Bs. As., Rubinzal C ulzoni, 2004-2, p. 7. In exchange, since the documents established in
the were not collected it has b een decided that “If the demanded official body ( Autarchic
Provincial Institute for Planning and Housing) acted as financial agent promoting the execution of
housing plans, but has left the direct relationship with the buyers of the apartments to a
construction company, the liability will not be attributed for the defaults of the constr uction, since
it does not have any legal relatio nship or solitar y obligation title with the buyers” (Cám. de Apel.
Concepción del Uruguay, Sala Civil y Comercial, 12/10/2001, Law Litoral 20 02-1331).
28)
Buyle, Jean Pierre, La resp onsabilité du banquier, dispensateur de crédit, en matière
d’environnement.
29)
Bohoslavsky, Juan Pablo, Abusive credits. Overborrowing. State, companies and consumers,
Bs As, Abaco, 2009.
11
§ 9. From the inviolability of the patrimony to the inviolability of the
person. Constitutionalization of tort law. Consequences
Nineteenth-century codes focused their interest in the patrimony of the
person. A sample of the weight of this interest is the large number of articles
devoted to the domain system, easements, mortgages etc., especially when
compared with the few rules regarding the person and their basic rights.
This perspective changed dramatically in the second half of the twentieth
century with the “new constitutionalism” which had much influence on the entire
legal system, operating as one of its consequences, which has been called the
process of constitutionalization of private law.
The new perspective impacted various sides of the civil liability law.
On the one hand, it emphasized a greater protection of the victim who had
suffered bodily injury. Thus, for example, in terms of exemptions, the Catala
Project states: “Art 1351: The partial exemption can only result from a fault of the
victim who has participated in the production of damage. In case of attack on the
physical integrity, only negligence can lead to partial exemption”. Coincidently,
to regulate the provisions of the limitative clauses, art.1382-1 of this project
states: “Nobody can exclude or limit the compensation of a bodily injury that he is
responsible for”.
On the other hand, a “rapid increase of the damage fattispecie worthy of
compensation”
30)
has been registered. There is an obvious crisis of the classical
typology (pecuniary damage and moral or extra –pecuniary damage) which is being
replaced by a series of species which should be included in the category personal
damage
31)
; however they did not manage to achieve a clear conceptualization, such
as health damage, biological damage, life project damage, family peace damage,
personal relationship damage, existential damage etc.
The appearance of these types is justified, inter alia, by the verification of an
evolution that has gone through three stages: Firstly, “you are what you own”; from
there, the most important is the pecuniary damage. Secondly, you are what you
earn, hence the emphasis is laid fundamentally on the yield damage; thirdly, you
are what you enjoy, protecting the so called life project damage and other similar.
Carlos Fernández Sessarego, the speaker of the trialist doctrine in Peru,
believes that the change of view (from the pecuniary to the person) is due,
essentially, to the fact that the human being is a “psychosomatic unit built and
sustained on its freedom”. The attack to the psychosomatic unit leads to biological
damage, health damage, well being damage, while it is in that unit that appears the
30)
Patti, Salvatore, Lesioni del diritto all’attività sessuale e risarcimento del danno. A proposito
di Cass. 11.11.1986 n° 6607 e Cass 21.5.1996 n° 6607, in NGCC 1997 Parte seconda, p. 37.
31)
I have made a reference to this category in Kemelmajer de Carlucci, Aida, “Personal
Damage. Does the Argentinian Law can benefit from the praetorian creation of the Italian
jurisprudence?”, Private and Community Law Magazine n° 1, Santa Fe., Rubinzal, 1.992, p. 69/100.
12
body or soma and the psyche. Moreover, since this unit is sustained by freedom,
the attack to this fundament leads to the so called damage to the life project or to
the phenomenal freedom
32)
.
This new typology has various practical implications within different legal
systems.
In Argentinean legislation, the emphasis is placed on the legal capacity, since
the reading of art. 1078 of the Civil Code, detached from the constitutional values,
leads to a restrictive solution, and, therefore, according to the text, the moral
damage can only be claimed by the victim and if death results from the act, by its
heirs-at-law.
In Italian law, however, the question is that of repairable damage, while from the
same vision, non-material damage can be claimed only in cases specified by law.
With a constitutional view, however, Argentinean law opens to legal
capacity
33)
while the Italian law opens to new types of damage when rights
protected by the fundamental law of the State are affected. In effect, the
constitutional reading of the texts referring to the civil liability is a must
nowadays. This reading implies the examination of the constitutional values
according to the cultural patterns existent at the time of the decision and not to
what the norms dictate (in other words, an original interpretation is replaced by an
“activist” one); this methodology leads to the incapacity of distinguishing between
contractual and tort liability when the inviolability of the human being is at stake,
and, at the same time, as a sort of compensation, a minimum of tolerance
necessary in the social life requires not to compensate useless, minor pecuniary
damage. The compensation must be complete (both for the pecuniary damage and
for the non pecuniary damage) but it should not exceed limits; to this end, the
judge transforms into a custodian for not repairing the same damage with different
labels. Finally, judicial discretion is not arbitrary; therefore, the judge must
reasonably fundament all his decisions
34)
.
32)
The work of Carlos Fernández Sessarego on this theme is large; see, for instance, Legal
protection of the person, Lima, Universidad de Lima, 1992. I was genero usly offered by the autor,
in person, one of his last contributions, the article Damage to the life Project in contemporary
doctrine and jurisprudence
33)
From there, in recent years the non-constitutionality of art. 1078 of the Civil Code has been
declared and the demand of moral d amage from the fellow man or woman has been legally
capacitated (its posture ha s been assimilated to that of the spouse); to the brother (although it does
not have a legitimated section in the succession) etc.
34)
See, authored by me, Existential damage, as non pecuniary dama ge in the Italian appeal at
the end of 2008, in Rev. Derecho de daños, Bs. As, ed. Rubinzal, t. 200 9-3-61.
13
§ 10. New types of damage: the discriminatory conducts, the moral
collective damage; the undue delay of proceedings
The constitutional view has also generated the appearance of new situations that
are considered worthy of custody and, therefore, of compensation. The birth of one
liability implies the assertion of a fact which demands a response from the law; the
fact demanding this reaction from the law is the one which created a disorder, an act
of injustice, a social disturbance; however, these facts change over time
35)
.
Therefore, for instance, today damage caused by discriminatory conducts are
repaired, which until recently, had no entrance in the court. Anyway, it is
necessary to be clear about which these conducts are. Two cases solved in
Argentina show that the judges should be able to distinguish.
Reasonably
36)
, a court rejected the claim filed by a blind person who had the
intention to take a loan with a bank; the financial institution asked for the presence
of two witnesses of the consumer at the time of presenting the documentation; the
disabled person demanded damages stating that they had discriminated him by
imposing requirements which were not applicable to the clients without this
disability. The court argued as follows: art 42 of the National Constitution
provides that “the consumers and users of goods and services, in the consumption
relationship, have the right to protection of health, security and economic
interests; to true and adequate information; to freedom of choice and to dignified
and equitable treatment”. The requirement of the bank (presence of two able
witnesses) tended to protect the right of the actor (the blind person) to receive
adequate information, and, at the same time, to certify an ideal environment which
the financial institution accomplished by the obligation to inform. Therefore, there
was no discrimination whatsoever, based on the article 4 of the Convention for the
rights of the disabled persons, approved by law 26.378, which provides that the
specific means which are necessary for the acceleration or the achieving of
equality for disabled persons, are not construed as discriminatory. In this case, the
requirement of the bank aimed precisely at protecting the consumer of the
financial service by ensuring that the agreement is given freely.
On the other hand, another claim was filed by a consumer
37)
who had been
forced to take off his clothes, under the suspicion of theft. The court stated: “No
one can deny the right of commercial establishments, especially the supermarkets,
35)
Viney, Geneviève, À propos de la responsabilité: app arition et évolution d’un concept
juridique, en Cendon, Paolo (a cura di), Scritti in onore di Rodolfo Sacco. La comparazione
giuridica alle soglie del 3° millennio, Milano, ed. Giuffrè, 1994, t. I, p. 1187; of the same author,
Les métamorphoses de la responsabilité, Rapport de synthèse, in Paris, ed. Presses Universitaires
de France, 1997, p. 324.
36)
Cám.Nac. Civil Sa la H, 29/03/2010 in See Civil Liability and Insurances 2010 n° 8 , p. 57,
JA 2010-II-356 and ED 238-381.
37)
Cám. Nac. Civil Sala I, 12/0 5/2005, Montoya, Isabel Mariana and others c/ Supermercados
Coto CICSA, in 2005-III-295 y ED 215-292.
14
to use the necessary security means in order to avoid the theft of merchandise, by
means of appropriate devices, provided that these means should not be translated
into a dishonor or an offense to the client“. Therefore, two clients should be
compensated, if they were wrongfully accused of having hidden a part of a
shaving machine in the supermarket and if they were verified in a public sector, as
it results from the declarations of the police.
Another strange resolution
38)
placed liability jointly on the managers of a
company administrating a club; they participated in the general shareholders
meeting during which they decided that the spouse from a second marriage of any
shareholder could not be admitted as affiliated while the previous spouse still
existed as shareholder, for damages caused to a shareholder and to his new spouse
in virtue of the repeated rejection of his request for admission; the court
understood that the defendant intervened in the execution of a discriminatory act
provided by the provisions of art. 1 of Law 23.592
39)
.
Before the new vision, there is no need to call the attention on the appearance of
collective moral damage caused by the loss of cultural values. Hence, for instance, a
few years ago
40)
, a traffic accident caused the destruction of a group of sculptures
situated in a public area of the city of Tandil, province Bs. As.; given the
impossibility to recover the work by restoration, the judge ordered a compensation
amount designed to form a public patrimony (acquisition and preservation of
cultural works), as provided today by the general environmental law n° 25.675
41)
.
Undue delays of proceedings generate new liabilities of the State for the
malfunctioning of the legal system. A paradigmatic case is decided by the Court
of the province of Mendoza, as the person complaining about the unjustified delay
38)
Cám. Nac . de Com. Sala D, 29/7/2009, Rev. D. de familia y de las personas, year 1 n° 2,
2009, p. 259.
39)
Art. 1 of the cited law provides: “Whoever arbitrarily impedes, obstructs, restricts or whatever
affects the full exercise on equal bases of the fundamental rights and guarantees acknowledged by the
National Constitution, shall be forced, at the request of the affected party, to leave without effect the
discriminatory act or to cease en and repair the caused moral and material damage”.
40)
Cám. Civ y Com de Azul, 22/10/1996, JA 1997-III-224; ED 171-378; La Ley, Bs. As., 1997-272.
41)
This law regulates the collective damage and creates a compensation fund. Art. 34
provides: “The Environmental Compensation Fund shall be created and shall be administrated by
the competent authority in each jurisdiction and it shall be designed to guarantee the
environmental quality, the prevention and mitigation of harmful and dangerous e ffects on the
environment, the attention to environ mental emergencies; likewise, the protection, preservation,
conservation or c ompensation of the ecological systems and of the environment. Authorities shall
be able to determine that this fund should contribute to sustaining of the costs of the restoration
actions which might minimize the damage produced”. On the other hand, art. 28 states: “Whoever
causes environmental damage shall be objectively responsible for the reinstatement of the state
prior to the production of the damage. In case this should not be technically viable, the substit ute
compensation established by the ordinary judicial body shall be deposited in the Enviro nmental
Compensation Fund which is created by the present, which shall be administrated by the
applicable authority, without prejudice to other legal actions which might co rrespond”.
15
was the victim of the crime
42)
. The undisputed facts were the following: on the
12/1/1979, the parents of a 17-year old announced the disappearance of their son,
who had been last seen at a hunting party, together with some friends. Ten months
after the complaint, testimonials began to arrive; seven years later, the prosecutor
requested the opening of the procedures again; the file was kept secret until April
1997, despite the fact that, since 1993, the parents had requested the removal of
the secrecy of the investigation. On the 6/3/1998, the parents filed a complaint for
damages against the State; they invoked serious irregularities related to the judge
and the undue delay of the proceeding. The province filed the motion to dismiss,
which was accepted by the Court of Appeal; appealed before the provincial court,
the maximum local legal authority understood that in relation to the first claim of
the complaint, the sentence was not arbitrary since the parents initiated the
complaint after the expiration of the legal term starting with the moment they had
knowledge about the reported irregularities. However, the answer to the question
related to when does the prescription period begin to be calculated when the
undue delay in the proceeding is attempted to be compensated, was wrong. The
sentence recalled the reasonable pattern established by art. 4 of the Italian law n°
89 of 24/3/2001, called Legge Pinto, which provides: “The claim for
compensation may be filed during the pendency of the proceeding within which
the violation is verified or, under penalty of expiration, within six months from the
moment when the resolution, which concludes the proceeding in question, has
become final”. Taken into account the fact that, in this case, the civil demand had
been filed when the criminal trial had not been over yet, the action was not
prescribed. With respect to the proceeding in the action for damages, the Mendoza
Court recalled a precedent of the Interamerican Court of 27/11/2008 (Valle
Jaramillo c/Colombia) in which the victim argues that the Columbian legal
system is too long in the clarification of the crime committed.
§ 11. The shift of the boundary between compensation and punishment.
Punitive damages.
Another mobile boundary is the one marking the distinction between
reparation and sanction.
Savigny said that “The history of private pain is the history of its decadence”.
Nevertheless, today a sort of rebirth of the so-called “punitive damages” seems to
emerge, not only in the countries of the Common Law, where they appeared, but
also in the so-called continental, European and Latin American law, as it
originates from the doctrine and including legal work
43)
.
42)
SCMza, Garavaglia c/ Provincia de Mendoza, 16/2/2009, Rev. del Foro n° 96 p. 47.
43)
It is a reference to this question in my article “Is it convenien t to introduce the so called
punitive damage in the Argentinian law?”, Annuals of the National Acade my of Law and Social
Sciences of Buenos Aires, year XXXVIII, 2
nd
age, n° 31, 1.993.
16
These types of damages are conceptualized in the US, in the Restatement
Second of Torts, as “amounts awarded to the plaintiff, additional to and above the
real loss, with the aim to punish an extremely reproachable conduct and to
discourage the defendant and others from imitating that conduct in the future”. A
Catalan author defines them as the “Pecuniary compensation granted to the
plaintiff, in a civil lawsuit, which is additional to and independent from all
compensatory indemnifications and which the defendant is ordered to pay for
being guilty of injuring the rights of the actor flagrantly”
44)
. In Argentina they say
that it is about “A punitive, excluding, legal technical tool that courts impose on
the respondents, besides the compensatory indemnification, for conducts which
aim at obtaining benefits (goods income or saving necessary expenses) by
committing certain illegal acts qualified by their gravity”
45)
.
The aforementioned Catala Project aims at future French reform: Art. 1371: “the
author of an overtly deliberate fault, especially of a lucrative fault, can be sentenced, in
addition to the compensatory damages, to punitive damages, with the possibility of the
judge to partially benefit from the Public Treasury. The decision of the judge to award
damages must be particularly motivated and the amount should be subtracted from the
other the damages awarded to the victim. Punitive damages are not insurable”.
The reference to the lucrative fault in this work is considered a true
“revolution” given the fact that damages are not measurable in relation to the
suffered prejudices, but in relation to the character of the fault of the responsible.
In Argentina, with a scarce technique, art. 52 bis of law 26.361 regarding the
consumers’ protection, states: “Punitive Damages. To the provider who does not
fulfill its legal or contractual obligations toward the consumer, at the request of the
victim, the judge shall able to impose a civil penalty in favor of the consumer, which
should be established depending on the seriousness of the act and on the other
circumstances of the case, independently from other compensations that apply. When
more than one provider is responsible for the infringement, they shall be liable jointly
before the consumer, without prejudice to the appeal actions they should be entitled
to. The civil penalty which should be imposed shall not exceed the maximum amount
of the penalty sanction provided by article 47, paragraph b) of this law”.
The formula is not entirely correct, since the budget for enforcement is simply
the infringement of obligations; the seriousness of the conduct is taken into
account only to dispense the amount, but not so much as a requirement, contrary
to the teachings of the doctrine which, as resulting from the transcribed
definitions, requires a plus above the mere infringements
46)
.
44)
Salvador Coderch, Pablo, Punitive dammages, in Pantaleón, Fernando (respo nsible for),
Liability in the legislation, Madrid, ed., Universidad Autónoma, 2001, p. 139.
45)
Díaz, Juan C., Elías, Jo sé y Guevara, Agustín, Do punitive damage land in the Argentinian
law? Contributions to a more wider debate, in JA 2003-II-961.
46)
Ver López Herrera, Edgardo, Punitive damage, Bs As, ed. A. Perrot, 2008, p. 360 y ss.
17
§ 12. The shift of the border between local and international law. New
“repairs” when human rights are violated. The issue at the Inter-American
Court for Human Rights.
The Inter-American Court for Human Rights coined a concept of compensation
larger than the one existing in the local law. Numerous statements provide that “the
compensation of the damage suffered following the violation of an international
obligation requires, whenever possible, the full restitution (restitutio in integrum),
which consists of the reinstatement of the situation prior to the violation. Should
this not be possible, the role of the international court is to determine a series of
measures so that, in addition to guaranteeing the observance of the infringed rights,
the consequences produced by the infringements should be repaired, and the
payment of a compensation for the incurred damage should be established, inter
alia”. To the aforementioned, the positive measures that the State should adopt to
make sure that harmful acts should not take place again should be added.
These “formulas” have been taken, among other remedial measures, to remove
the obstacles to the freedom of expression, to restore the victim to his/her workplace,
to create an educational center or to open a street with the name of the missing
people, to build a commemorative monument, to remove the complaint from the
recidivists’ register, to publish the resolution, to perform a public act of recognition of
international responsibility, to make a declaration of State policy related to children in
conflict with the law, to carry out an education and vocational assistance program for
the victims, to provide a place in the cemetery for the remains of the victims, to
amend the law that has caused the infringement of the human rights etc.
It is understood that these repairs, many of them symbolic, without
compromising the individual concrete repairs and the repairs in regulatory and
institutional policy, have an extraordinary educational role and represent an
instrument for a true transformation in the future.
The decision in the case Almonacid c/Chile, of 26/9/2006, may serve to
illustrate the wide concept of reparation. The international decision acknowledges
that the spouse of Mr. Almonacid received the pension […]. The children, in their
turn, received the bonus […]. In total, in the years of application of these measures,
the direct family received transfers […] for an approximate amount of US$ 98
million [US dollars]. Moreover, two of the children used the right provided by law
19.123 regarding the access to scholarships for higher education. […] in total, the
family received scholarships amounting to US$ 12.180 [US dollars]”. “To these
traditional compensations, it should be added the fact that the Chile State proceeded
to name a street with the name of Luis Almonacid and a school with the name Villa
Professor Luis Almonacid, both in the city of Rancagua, and including the name of
Mr. Almonacid Arellano in the Memorial of the General Commentary in Santiago”.
The damage to the person also had a special treatment in the resolution given
for Cantoral Benavides” c / Perú, on the 3/12/2001. The facts verified in the case
18
are as follows: the complainant was subject to “harsh prison conditions and
restrictions, to cruel, inhuman and degrading treatments”; the actions to be
followed against him did not comply with the requirements of the due process; his
detention was arbitrary, he was presented to the press in prison garb, a lack of
judicial guarantees and protection was noted. The court understands that “The
conditions imposed on those facts prevented the realization of the vocation,
aspirations and potential of the victim, in particular and consequently in respect to
his training and his work as a professional. All this represented a serious obstacle
for his life project”. It adds that “the best way to reestablish the life project of
Cantoral Benavides consists in that the State should grant him a scholarship for
superior education, aiming at covering the costs of the professional career which
the victim should choose. Moreover, the State should cover the maintenance costs
throughout the period of study in a center of acknowledged academic quality
chosen between the victim and the State”.
These notions and others that are omitted due to the collective character of
this work generate ample consequences in the internal law in relation to
legitimation, prescription of the actions, jurisprudential criteria over certain areas
etc. when the claim for damages is based on an attack to a human right.
§ 13. A temporary conclusion
In an article published a few decades ago, expert Galgano
47)
stated: “When
one talks about civil liability, one thinks about some sort of comedy; this comedy
does not have a libretto, it only has a draft. The judge does not apply pre-
constituted, pre-established rules, but a general clause, in whose light he himself
creates the legal system that is, the plot of the comedy. The protagonist of the
comedy is the judge; the role played by the jurisprudence in this field is dominant.
This role implies a great risk since the judge may no longer be a lawful judge so
as to turn into the judge of a sole equity. The limit of these attributes resides in the
fact that this comedy also has a director, and it is us, we all are the directors, who
must control this judicial function. In fact, we should not regret the evolution that
has taken the responsibility; it has been gradual and has taken pauses and
intervals; nevertheless, the judges should be aware of the fact that the most
frequent culprits today (the companies) need to know what to abide by; thus, the
judge should apply the undetermined clauses with much prudence; otherwise,
obviously, facing a maddening jurisprudence, there appears the lawmaker to
regulate with boundaries not always reasonable”.
These words are completely applicable today. Hence, all that is left is to
transcribe them and not to comment them; it is sufficient to say that the prudence
and the principle of proportionality, once again, should guide the jurist.
47)
Galgano, Francesco, La commedia d ella responsabilità civile, en Ri v. Critica del Diritto
Privato, anno V n° 1, March 1987, p. 192.
19
References
Bohoslavsky, J. P. (2009) Abusive credits. Over borrowing States, companies
and consumers, Bs As, Abaco;
Buyle, J. P., La responsabilité du banquier, dispensateur de credit, en matière
d’environement;
Carval, S. (1995). La responsabilité civile dans sa function de peine privée,
Paris, LGDJ;
Edgardo, Ver López Herrera. (2008). Punitive damage, Bs As, ed. A. Perrot;
Galgano, Fr. (2008). I fatti illeciti, Padova, Cedam;
Husson, L. (1947). Les transformations de la responsabilité, Paris, Puf;
Picazo, D. & Luis, J. (1999). Damage Law, Madrid, Civitas.

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