Unit IV: Liability Defences
The defenses of responsibility are all situations that prevent the duty to repair concrete on who appears to be responsible to make eliminate one of the assumptions of liability.
defenses are generally operating at all levels of liability (contract and tort); and special defenses, operating in a particular sector of responsibility, whether in contract or tort. Within
general defenses are, according to which element affecting:
· illegality: here are the causes of justification, which are self-defense, the state of necessity , compliance with a legal obligation and self-help.
· Liability subjective firstly the lack of guilt, and second causes of insanity:
- Lack of insight: minors, insane not in lucid intervals, unconscious.
- Failure intent: ignorance or error.
- Lack of freedom: coercion
· Causation: are fortuitous, the fact of the victim, and the fact that a third party this would not be answered.
On the other hand, there are specific defenses , which are:
· Contractual Liability: they are waived or restrictive clauses of the blame, the disappearance of basis of the legal business, and the theory of unenforceability.
· contractual liability: here we have the indirect responsibility of the parents, the responsibility with the intervention of things, and responsibility for animals.
I - Case Act of God
regard to his concept there is a doctrinal division, since in the art. 514 is given a concept, but in other arts. (889, 893, 1522) cumulatively speaking of unforeseeable circumstances and force majeure, and other times just to force majeure (1526). Thus there are two positions, with its variants:
1. distinctive posture: generally considered that are not equivalent expressions but refer to different facts, containing two sub-stances:
- conceptual difference: both have the same effects. Thus, for some unforeseeable circumstances are facts of nature and human force majeure events. For others, are fortuitous events and force majeure events unpredictable predictable but irresistible.
- practical difference: for them, force majeure is in discharge, while not a fortuitous event (Exner, Josserand).
2. equalizing Posture: understood that both are conceptually the same, and have the same in discharge of liability. It is followed by the Code and the majority of the doctrine.
Thus, the fortuitous event or force majeure is unforeseeable or unavoidable outside the debtor that absolutely prevents the fulfillment of the obligation. This concept is correct, but it focuses Llambías from the scope of contractual liability.
Thus, we can enumerate the following requirements of accident or force majeure, distinguishing between those general and those belonging to the contractual liability:
1. General
Done unpredictable: this should beyond the normal ability of foresight that is required of the debtor. Thus the criterion of assessment is objective (in accordance with what society establishes as a duty objectively forecast due to an average debtor) and concrete (taking into account the particular circumstances).
2. inevitable Done: refers to the helplessness of the debtor to avoid the facts. Unpredictability is relevant only to the extent it is unavoidable. The criterion is also goal-specific.
3. events unrelated to the debtor: this should be outside the control of the debtor, that is, beyond its current attitude, even if you set the casualty when the fact is related to an instinctive activity or physiological the debtor (involuntary disease retracted). The debtor is not released if it was your attitude or your fault that causes the impairment.
4. 
Done occurring after the establishment of the obligation: the obstacle should arise after the establishment of the obligation. Conversely it could be ignored by the parties, annulling the obligation due to the impossibility of the object.
5. Cont Resp
Done now the obstacle must be present at time of completion, does not suffice to be a mere possibility. In addition, the event may have existed at some time during the existence of the obligation, but have ceased at the time of compliance.
6. Incidence of fact: the above items relate to the fact in itself considered while the latter element takes into account the impact of the act, and what consequences occur: an insurmountable obstacle for the fulfillment. This inability is:
- Objective: delivery is impossible without consideration of any extrinsic to it, involved the personal circumstances of the debtor.
- Absolute: must create an obstacle that can not be overcome by human effort. Although it can be exorbitant for the provision unenforceability (criterion of good faith).
examples are fortuitous natural forces, acts of public authorities, strikes, wars, fires, diseases, etc.
Finally, with regard to effects of accident or force majeure, the general principle established in the art. 513 provides that liability of a debtor, which is released. But there are three exceptions:
1. The debtor stipulates that the creditor will bear the accident, either in terms of responsibility or a covenant of warranty.
2. That was fortuitous because of the debtor (that is improper because it would be fortuitous.)
3. The debtor is in default, unless it is irrelevant, that is, if the thing also have perished at the hands of the creditor.
II - Causes of Justification
A wrongful act may not be apparent when the circumstances justify its implementation come from the agent. Among these justifications are self-defense, the state of necessity, obedience and self-help, in which situations, and potential conflicts of duties or legitimate interests, the agent is not responsible po have complied with the duty of pre-eminent rank, or without abuse for having protected a legitimate interest.
Self Defense
when someone is given against an unlawful and unprovoked assault, used a rational and sufficient to prevent or repel it, not accounting for the damage may cause. Thus, the conditions for legitimate defense set are:
1. illegitimate aggression: is unfair attacks brought against the person or property of another.
2. potential rather than actual aggression: the attack produce harmful effectiveness when defending the victim.
3. Aggression against persons or property: also in those of another with which it can be morally identified as your spouse, children, etc.
4. Lack of sufficient provocation on the part of the victim: not caused the aggression.
5. Need sound environmental used: is legitimate only when the means used is proportionate to the attack received, and enough to stop it.
necessity as a defense to liability because, as someone to avoid a serious and imminent evil which has been strange, cause harm to another. In such case he shall not be liable if the injury is incomparably less than avoided, and there was no other means to prevent the latter. So are their requirements:
1. Que el agente sienta el temor fundado de sufrir un mal inminente y grave.
2. Que el agente no sea culpable del peligro que lo amenaza.
3. Que el daño ajeno sea el único modo de evitar el peligro que amenaza al agente.
4. Que el daño ajeno sea incomparablemente menor al evitado.
5. Que el daño ajeno sea de carácter patrimonial.
Due Obedience
Another reason precluding the agent's responsibility is the obligation to obey a lawful superior. In this case, the agent is faced with a conflict of duties, then, or disobeys and incurs criminal offense, or due and makes the harm to others.
As a general rule, the agent is exempt from responsibility for their subordinate status, which is stated to obey, a minor who is or ought to be aware of the unfairness of the order received. Examples are police officers.
vigilante justice (Self Help)
While in principle one can do justice by their own and must resort to the courts in search of solution, is supported by doctrine and by different codes, in case of emergency, the operator may itself to provide protection of their right and even impose their adherence to violence, provided it is not possible to obtain in a timely intervention by public authority and where any delay can result in loss of or frustration of the right. While
Civil Code contains no express provision in this regard, it follows from the provisions art.2517 empowering the owner of a property to remove without notice things which have put into the same without your consent.
III - Causes of insanity
The causes for which is left to impute the act to the agent, may relate to the subject in itself considered or the subject in relation to the act he has done. Thus we find the failure of discernment, intention, freedom, unable deaf, irresistible force.
Failures
Here taken for three reasons:
1. Small Child age: children who have not attained the age of 10 lack discernment and therefore is not voluntary harmful act that will work (921). But these acts are efficient to generate liability reflects its parent, guardian, etc.
2. Insane: are devoid of discernment of the insane acts that were not practiced in lucid intervals, whether declared or not (921). There are also liability reflects. Similarly, the act of the insane can lead to compensation equity of art. 907.
3. accidental unconsciousness: there is an absence of discernment and therefore irresponsible when the agent has acted for any accident without the use of reason (921), such as low toxicity, disorders, hypnosis, drunk, etc. For that to happen, the unconscious must be unintentional, which can be proved by any means
Intent Failure (Error)
The error is a false knowledge that has something and is a cause of exemption from liability when the mistaken belief rests on the substance of the principal fact constituting the wrongful act (critical error). A secondary accidental error or no excuse.
For the error may be invoked as a cause of insanity of the harmful event must be two criteria: the error must be in fact (not law) and excusable (it has been no reason to miss).
Failure Freedom (Violence)
In this case the agent is the author of the measure adopted by him, although he has practiced against their intimate love and only the fear of the evil that was threatened if refused to act that way: here is itself a cause of insanity, because even when coercion is exercised targeted the subject's will not go away, but it is fundamentally flawed by their freedom to be affected.
Both in this case, as in the failure in intention, although the damage does not assume any liability of the agent, it may be required to repair, not by way of responsibility, but on grounds of equity, depending of the provisions of art. 907.
Unable Deaf
responsibility has been controversial declared incapable of deaf-mutes who can not be understood in writing. Llambías believes that his accountability is normatively correct, whether injunctions or not, unless it is proved their lack of discernment at the time to act.
Irresistible Force
According to art. 936 there is a lack of freedom in the agents when they employ, against an irresistible force. In this case the subject of the act is only apparent as the author worked. Do not play here a real cause of insanity sino la ausencia de autoría del agente.
IV - Falta de Culpa
En los supuestos legales en que la culpa se presume es posible eximirse de responsabilidad probando que no hubo culpa de parte del imputado. La prueba de la falta de culpa consiste en la demostración de que se actuó con las diligencias, prudencia, cuidados, pericia, etc. que requería la naturaleza del hecho atendiendo a las circunstancias de las personas, tiempo y lugar. En tal caso, el autor del hecho puede eximirse de responsabilidad.
Puede también excusarse la responsabilidad alegando y probando a circumstance outside the orbit of action of the defendant, where the damage was caused by an accident, or the fault of the victim or a third party to that. Thus we have:
1. Blame the victim:
- exclusive Blame the victim: if the damage has been caused by the sole fault of the victim, there is no liability (art. 1111). Not every victim is made of outside agency: it must be culpable.
- Blame the victim concurrent with defendant's guilt: Code has no explicit solution. The solution is currently the law of most countries is the so-called system of "compensation of sins." As for how to distribute the blame, in general, our courts do in regard to the gravity of the respective faults (and not equal). The intentional tort one absorbs the blame.
- concurrent Blame the victim at risk of the thing the defendant: In case of risk of both, the Supreme Court established the criteria to determine that the risk does not exclude mutual application of Art. 1113.
2. third Blame: causal connection is interrupted if the damage is because the fault of someone else (who does not have any legal relationship of subordination or the victim or the alleged offender). This expresses, in the case of inanimate things, art. 1113: "only fully or partially exempt from liability proving the guilt of the victim or a third party who may not respond," and animals in art. 1125 "if the animal which has caused the damage was excited by a third party, it is responsibility, not the owner of the animal. " There are third among parents of their children, nor dependent on their subordinates.
3. Fortuitous Event: has been developed at the beginning of the unit.
V - Disappearance of Legal Business Base
While the impossibility of performance in the case chance is given by the absolute impossibility of that objective and definitive, there are circumstances in which it occurs by a difficulty to pay, since they have changed the circumstances at the time bound, ie the base disappears transaction. The difficulty of payment failure occurs in cases of frustration of purpose and foresight theory.
End Frustration
It occurs when one or both parties, by a change in circumstances, lose interest in fulfilling the contract, which has lost its purpose. It is not regulated in the Code (although the analogy is accepted as to the cause order and the adaptation), and has its roots in common law, in so-called "coronation cases" of 1901: in London were rented balconies to watch the parade coronation of Edward VII, who, sick and canceled it created a conflict.
As shown in the example, the common purpose was to see the parade, which gave substance to the agreements, as well as that tenants had incorporated into the contract. And while the benefit was achievable, it was not the purpose, lack of interest provision for tenants.
requirements to be a frustration of purpose are three:
1. supervening circumstance unrelated to the parties, extraordinary and unpredictable. Must be able to affect any person who has been in the same situation of the parties.
2. should have changed the general state of things, whose existence was necessary for the purpose of the contract be met.
3. The aim should be unattainable even if the benefit is possible by determining the disappearance of the cause of action.
unpredictability
1198: "In the commutative bilateral contracts and the unilateral implementation onerous and Commutative delayed or continuous, whether the provision by one party will turn excessively burdensome for extraordinary and unforeseen events, the aggrieved party may demand the termination of the contract. The same principle applies to contracts random when hardship occurs for reasons extraneous to the contract at your own risk. In contracts for continued implementation of resolution not extend to the effects already served. No resolution shall, if the injured party would have been guilty or were in arrears. The other party may prevent equitable resolution offering to improve the effects of contract. "
We can list the following requirements:
1. The contract is onerous (supply-consideration).
2. The contract is commutative (that is aware of the advantages of both parties.)
3. The contract is for execution in time (delayed or continuous).
4. or unforeseeable extraordinary events (the doctrine requires the first 5 characters of a fortuitous event.)
5. That the provision by one party becomes too costly (unreasonable extraordinary sacrifice.) The doctrine says "... or too cheap."
6. should be no default or negligence on the part of the victim.
The aggrieved party may seek the termination of the contract, retroactive to the day when the obligation was contracted. The parties shall be returned at least the benefits delivered.
| | | unpredictability |
| Incidence of fact: | The fact that sets the casus makes the performance of the obligation impossible in an objective, absolute and permanent. | The fact does not preclude compliance, even if it becomes too expensive (or cheap) to the debtor. |
| Effects: | The obligation is extinguished due to the inability to pay. | The obligation is extinguished by removal of the cause, the time of adjustment, whether by termination or novation. |
| Scope: | More broadly, it applies to the fulfillment of obligations and wrongful acts. | More restricted, it only works in the case of certain contracts (listed above). |
VI - provision limiting or exonerated of responsibility
This issue is about the guilt waiver, which is when the debtor should be exempt from full or partial responsibility for their negligent breach. Separate issue is the waiver of compensation by the creditor, after the breach.
Our Code does not include a rule to regulate it, so there are three positions:
· Classics: accepts the validity of the exemption clauses of the blame because in principle are prohibited (Salvat). It is based on the autonomy (from 1197 to 1919 CNA).
· Mosset Iturraspe, Wheat Dams can dispense both ordinary negligence as very slight, but is not eligible for immunity from negligence, equating it to fraud.
· Llambías, Alterini: is dominant, differentiating between the disclaimers (total waiver) and extent (partial exemption):
- DISCLAIMERS: is inadmissible because it takes seriously the obligatory link to the extent that the debtor could ignore any proceedings without incurring liability. It is also as if forced to adverse terms of morality and decency.
- Clause limited to: in principle apply, as their operation is limited to exempt the debtor from any particular fault that he may commit, or mark a cap on your liability, such as a limitation on the amount. However
partial waiver of the blame is prohibited in certain cases: first when the law forbids, in the case of responsibility of hoteliers for the effects introduced by the visitors (2232), or the art. 37 of the consumer law. Second, cases in which clauses are contrary higher principles, such as public order or good faith. Finally, it can not be biased in contracts or accession, which are those that the conditions of the contract are established by a party, and the other is limited to accepting or not.
In regard to the waiver of intent , as a related topic, is expressly prohibited by art. 507: "The intent of the debtor may not be required to contract the obligation."
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