The Analysis of the Functions of Civil Liability. Constants and New Valences

• Author: Mirela Costache
• Pages: 109-113

Legal Sciences in the New Millennium

109

The Analysis of the Functions of Civil Liability

Mirela Costache1

Abstract: Occupying a prime position next to the current national law, within the new civil regulations,

the civil li ability claims the same two classic functions, the reparative and the preventive-educative one.

Enacted under the general desideratum of maintaining social order, and in particular the defense of

subjective rights of man, of respecting the rules of conduct that the law or local custom impose, the first

two paragraphs of article 1349 of the Civil Cod e shall formulate, without being ambiguous, the ideational

content of the two functions governing cumulatively the civil liability: the preventive and reparative

function. Using content analysis, through documentary descriptive research and rich analysis of the

specialized literature, this study aims at identifying the contents of the above mentioned concepts,

presenting a point of view on the regarded issue.

Keywords: civil liability; prejudice; preventive-educative function, restitutio in integrum; reparative

function

1. The Current System of Civil Liability and its Inherent Functions

Finding ourselves at the crossroads of two major forms of liability of equal importance to civil law, it

is noted the classical vision of addressing the issue, meaning that the current Civil Code establishes,

traditionally, the same two forms of civil liability, permanent standards for specialized literature and

jurisprudence – tort liability2 and contractual liability3.

In this context, the overall pattern of civil liability (Pop, 2010, pp. 425-516) completes better its shape,

“without daring novelties” (Vasilescu, 2012, p. 569), but with a new and an applicable broader

regulatory structure. The quoted author analyzes the advantages and disadvantages of maintaining the

same civil liability cases, as the common law legal system of liability, applicable whenever special

norms do not intervene. It finds equally the failure that would have generated another approach, the

futile effort to modernize something that has never become obsolete. The common denominator of

civil liability remains the same: the restoration owed to the one who suffered a prejudice, regardless

the forms of expression of this principle, as “every effort of intellectual unification of the liability

becomes more a chimera than a win for the main coherence of the legal issues raised by the liability.”

(Vasilescu, 2012, p. 570)

1 Senior Lecturer, PhD, “Dunarea de Jos” University of Galati, Romania. Address: 47 Domnească Street, 800008 Galati,

Romania, Tel.: +40.733.180.154, Corresponding author: costache_mirrela@yahoo.com.

2 The tort liability is based on mandatory provisions of art. 1349 Civil Cod e, par. (1): “Everyone has the duty to respect the

rules of conduct which the law or local custom requ ires and without bringing prejudice, through its actions or inactions, legal

rights or interests of others.”

3 Regulated by article 1350 Civil Code, the contractual liability supplements the legal support and by the rules enshrined in

Book V has, in Chapter II, “Compulsory execution of obligations” under art. 1516 -1548. It consists of contractual obligation

of the debtor to restore the damage caused to the creditor by his act, consisting of unlawful non-enforcement of creditor’s

performance due to its creditor, under the concluded contract.