Unit III: Limits of Repair
To narrow duty to repair, there are several applicable systems, according to whether they come to play or not to blame or willful misconduct of the responsible as to the extent of damages:
· target system: the extent of duty to repair set out in a uniform way, regardless of the person's guilt. No blame goes to carve or deception, being uniform in both fields. It is followed by the German Code.
· subjective System: both contractual and extra order affects playing or if there is fraud or negligence to establish the extent of compensation, widening the spread. It is followed by the Swiss Code of obligations.
· Mixed system: is occurring in our country, based on the French Code (Domat and Pothier). Distinction between the tort area, where the extent of damages is uniform, and the contract, which if taken into account if the debtor has acted with negligence or fraud for broader compensation limit.
posture with our Code began to be criticized, which postulates re unification of repair (Third National Congress of Civil Law), the limit of both must be the same. This was reflected in all recent reform projects (1987, 1993, 1998) as a unification of civil liability systems, and not taking into account the fraud.
Torts
In this field, as a general principle, the responsibility is longer. While the responsibility not to compensate all damage caused to the victim should do about that which is within the limits set by law and defined by its normal alignment to the cause: the repair should be complete.
The law limits the duty to compensate damages are caused immediate and mediate the wrongful act. However, when the author does intentionally and enters his view the harmful outcome that the crime caused the victim must also respond to such a result even if unpredictable, that is coincidental (905).
Contractual Liability
Within this orbit is necessary to distinguish the obligations are not intended to give sums of money of those their purpose is to sums of money.
Obligations are not intended to give sums of money
Before the reform, the responsibility in case of intentional damage includes intrinsic and extrinsic, that is, those incurred in other goods as well, but they are limited to the immediate and foreseeable consequence of the breach.
After the reform of the law 17,711, was set up another scheme, characterized by differentiation according to whether or not the debtor's fraud. Items that are applied are 520, 521, 522:
The article 520 states that "In the recovery of damages and interest only include those who were immediate and necessary consequence of the lack of compliance with the obligation." There are three positions on what constitute the "necessary consequences"
· Aguiar: are those that inevitably will result from the breach. Is criticized for being too strict, limiting greatly limit the liability of the debtor.
· Orgaz: needed is the consequence that does not happen freely and naturally, but is determined by the event of default. He does not add much criticism.
· Garcia Goyena Project: mainstream understands to be the intrinsic damage, which was expressed well in this project of reform, from the Roman law, and included in the Code by Pothier French. Are the harmful consequences when the contract could be expected. Only account for the damage affecting the thing, with the contract: the intrinsic damage.
is said within the last position, that damage is intrinsic extrinsic. Alterini and defines the intrinsic damage as all the parties understand or should understand working with care and foresight. " In conclusion, the answer for everything that comes as a contractual duty or appear to be expressly provided implicitly, by good faith, the inner contents of the contract.
Second, the Article 521 states that "If the failure to comply with the obligation to be malicious damage and interests also include the consequences meditate." Referred to in the case of willful default the answer to mediate predictable consequences. Borda understood that the word "maliciously" means needing a willful failure but with intent to injure. Nobody is their position.
Finally, Article 522 states that "In cases of compensation for breach of contract the judge may order the person responsible to repair the moral outrage they have caused, according to the nature of the event for liability and circumstances the case. " Refers to the possibility of granting moral damages, which is the theme of unity II.
Obligations are intended to give sums of money
pecuniary obligations have the following specific aspects regarding the compensatory scheme:
· only damage was compensates moratorium.
· The law presumes the guilt of the debtor.
· The specific interest is the way compensate for the damage because the money is an essential good, fruitful and an instrument of change.
· interest is granted regardless of what the damages are actually suffered by the creditor.
The Section 622 provides that the defaulting debtor owes the agreed interest on the obligation, since its expiration. Otherwise, the legal interest, and not be adopted this the judges will determine the interest to be paid. In addition, 17,711 law adds a paragraph which provides in the alternative, in case of unforeseen procedural malice by other laws, the implementation of additional interest to compensatory, serving a repressive function of that behavior.
regard to further damage or supplemental two positions:
· Constraints: default interest depleting compensation. This is the majority position, followed by the French Code, and is based on our right in the arts. 520, 521, 622, 1722, 2030. Makes three exceptions:
- Where the parties contemplate the additional damage.
- When there is fraud in the debtor.
- By law, such as the partner who takes money from the cash for own use (1722), or the debtor to pay for surrogacy (2030).
· Wide: beyond the interest arrears, the creditor can prove that it has suffered major damage and charge. Code is followed by German, Swiss and Italian, and Busso and Borda. They are based on two articles to support this position:
- Art 622: said that interest is payable moratoria, but does not exclude others.
- Article 508: says that the debtor is also liable for damages that their delays caused by them to the creditor in enforcement obligation.
Penal Clause
penalty clause is called the provision ancillary to a principal obligation for which the debtor must satisfy a some benefit if it does not comply with due, or if you comply belatedly (652). Thus, the penalty clause plays an ambivalent role:
· for damages Function: is a settlement default for any damages arising from the breach or challenged in compliance. Not in the natural course.
· compulsive function: adds a psychological stimulus that moves the debtor to meet the principal supply to avoid the penalty, which can be fed burdensome.
Some argue that it also has an adjudicative function (Borda, Busso) as a compact commissory, where the creditor chooses to punishment instead of compliance. This is not true, since the penalty is not part of the contract as a main effect. In addition, there can be added certain obligations which only go to the penalty clause with a compelling feature, as is the case of natural obligations.
The stipulation of a sentence he began in Rome as the only way to make binding commitments aimed at something other than money, but later extended to all types of obligations. In modern law the penalty clause is often used, since it has the practical purpose of facilitating the exercise of the rights of the creditor, releasing it as proof of damage experienced by the failure of the debtor, and releases of judicial discretion about assessing the damage. From the standpoint of the debtor, is also advantageous because it limits their liability to the amount specified, freeing it from the contingency of having to deal with excessive compensation for its economic potential.
The penalty clause can be classified into:
· Moratorium: is prescribed for the case of delay in fulfilling the obligation.
· Compensatory: is agreed that in those cases of definite non-performance of the obligation, which, unlike the previous one, can not be combined, but replaces it.
regard to the characters, they are:
1. Accessory: depends on other obligations, aiming to secure.
2. Subsidiary or Surrogate: comes in place of the principal service, telling the creditor with a right of option (659). This is understood to refer to the compensatory penalty clause and not the moratorium itself is cumulative, nor in cases where it is expected that payment of the penalty provision does not extinguish the principal. Also comes in lieu of compensation (655). This feature allows us to differentiate the penalty of the requirement optional, as is the creditor's option, except that the parties set otherwise.
3. Immutable: the amount of the penalty, in principle, is not subject to modification or revision, even if the creditor does not suffer damages, or damages are greater (655, 656). Raises certain exceptions, in the course of partial or irregular compliance with the obligation, where the penalty is reduced proportionately (660), the intent of the debtor the creditor may prove greater damage to the stipulated and in the case of unfair penalty clauses, where the judge intervenes to set them to order from (656).
4. Conditional its operation is subject to the non-performance of the principal service.
5. Definitive : which distinguishes it from the astreintes, because once set up definitively the debtor's assets.
6. strict interpretation: because it represents an exceptional right of the creditor, with than when it is agreed for the failure can not be transposed to the simple delay. As for the
time of its institution, the penalty clause can be agreed on the date of creation of the obligation, or subsequently. Regarding the form , the Act contains no special requirements to apply the general principles, only to be clear, is always present within the contracts. As for the modalities it may assume, are those of all obligations, term, condition and position.
respect to the subject , usually the recipient of the penalty and forced into it are, respectively, creditor and debtor of the obligation. However, there is no impediment to dissociate these qualities and appear as beneficiaries or third party receivables (deposit) the amount of the penalty. Finally, what makes object of punishment, can be any type of benefit that may be of a general obligation, which must be possible, determined, capable and legitimate valuable consideration. The
effects of the penalty, by the alternative, the creditor has in compensatory option, and the accumulation holidays. For its ancillary nature, if the principal obligation is extinguished, the clause also criminal dies, but not vice versa. This is not true in the case of natural obligations, where the penal clause is more virtual.
The penalty, though subsidiary and ancillary, is by its nature a real obligation. Therefore, it is governed by general principles of the bonds, unless the damage, which can not be proved either in its existence or its amount.
The penalty is extinguished as a result of the termination of the principal obligation and under obligational nature, is extinguished by the other modes of extinction: payment, confusion, transaction, clearing, etc.
Finally, Article 654 the states that "incurred the penalty prescribed, the debtor does not fulfill the obligation within the time agreed, though just cause had not been able to verify." The expression < just causes> regards subjective, and not fortuitous.
Comparison with Other Liabilities
criminal Clause alternative obligation
· In the alternative obligation all benefits due have the same rank and equal number are the subject of the obligation, while the penalty clause is incidental and not part of the purpose of the provision.
· If one of the alternative benefits are lost by accident, the obligation remains for other benefits, whereas in the bonds with a penalty clause if the principal supply is lost, nothing should because the obligation is extinguished.
· Typical of the obligations with a penalty clause is the choice of order of payment, while the penalty clause obligations with no choice.
criminal liability clause optional
· If the debtor-side look at the voluntary obligation the obligor is entitled to a benefit change another option which does not have an obligation with a penalty clause.
· If you look on the side of the creditor, it is noted that the obligation clause This penalty may be imposed for the rendering produced after the delay, as without this law the creditor of a voluntary obligation.
criminal and conditional obligation clause
· obligation in the penal clause the link is strong and safe, and the creditor's right and true today. In contrast, the conditional obligation, the same bond begins to be uncertain, and consequently, the creditor is possible.
Clause criminal and drag
· The penalty clause works only in favor of the creditor, while the advantage of both parties sign (double or nothing).
· The debtor subject to a penalty clause can not avoid paying the penalty provision, however can do who gave or received the signal, losing the signal delivered folded or restoring the signal received.
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