Unit V: Accountability Species
I - Self-Made Liability for
are responsible for the fact itself when running the acts done willfully or negligently.
Extracontractual Scope: Crimes and Torts
crime when we are facing an illegal act performed knowingly and with intent to injure the person or rights of others. While l civil tort is a wrongful act been guilty of harmful elements are:
· legal transgression (illegality).
· allocation factor (mens rea in the crime, blame the tort)
· Damage.
· Causation.
Thus, with the influence of the Law 17,711, the offense is different from the tort in:
1. Solidarity in the crime but there is solidarity between the subjects back no action (1081, 1082). In the tort, but also solidarity action is back (1109), showing two derogations solidarity, giving a simple pooling: a condominium hotel, a ship or parents because of the thing or children (1121), and the tenant or usufructuary in action against the owners of the ruined building.
2. compensation Extension: in tort is answered in the field of contract by the immediate consequences and mediate, and the contractual field for the immediate and necessary. In crimes in the orbit is answered by the immediate consequences tort, mediate and casual, and contractual environment for the immediate and necessary, and mediate.
3. Mitigation of responsibility: in tort can be mitigated based on equity, not crimes.
Regarding the differences between civil offense and criminal offense, we can enumerate:
1. Scope: civil offenses are on the Civil Code, and penalties in the Penal Code.
2. harmful intent: in tort is necessary (intentional tort), whereas in criminal matters may be manslaughter.
3. Damage: in tort damage is always required, in the criminal laws, but it is established.
4. Purpose: in tort compensation is sought, while that the criminal punishment.
5. Sentence: in tort for damages is, in the punitive criminal. Moreover, in civil measured in relation to damage while in prison is measured according to the seriousness of the offense and the danger of the author.
6. Extinction of action: in tort, the action is not extinguished by the death of the person, in the criminal act itself is extinguished by the death of the accused. Subject
passive responsibility: in tort pueden serlo las personas físicas y las de existencia ideal; mientras que en el delito penal sólo pueden serlo las personas físicas.
Los delitos contra las personas , relacionados fuertemente con el derecho penal, son los más graves, y con lo cual haremos una enumeración de ellos con su explicación y forma de reparación:
1. Homicidio: el delincuente debe pagar todos los gastos hechos en la asistencia del muerto, en el funeral, los necesarios para la subsistencia de la viuda y de los hilos del muerto, más el agravio moral, todo lo cual será fijado by the judge. They are entitled to demand compensation for funeral expenses that whoever has paid, while the other spouse and the heirs necessary, if not the author or accomplice of homicide or could not have been avoided.
2. Injuries: injuries or offenses are physical, psychological or aesthetic, must be compensated for the payment of all medical expenses and convalescence of the injured (damages) and all profits that failed to do so day of full recovery (profit). In addition to this the moral outrage.
3. Crimes against individual freedom: should be compensated the full amount of the total gains for the victim ceased until the day it was fully restored to his freedom, more compensation for moral outrage.
4. Crimes against decency: are cases of abduction, rape and rape, the victim should be compensated the moral outrage (which ceases if married then) and material damage.
5. libel: must repair if the victim proves that the crime caused him harm, and should cover the damages, lost profits and moral outrage. The indemnity does not apply when the defendant proves the truth of the accusation.
6. slanderous accusation: is the false accusation of a crime through legal action, requiring that they acted with knowledge of the falsity must be compensated what was paid as compensation for libel or slander in addition to all that the victim has spent on his defense and all proceeds stopped sense because of the slanderous accusation, without prejudice to any penalties or fines Penal Code.
In regard to the crimes against property , apply the terms of the obligations to restore the thing to its owner, being the following:
1. Theft: if the thing is not destroyed, is returned with all accessories, in addition to compensation for all damage was caused even by accident. If the thing is completely destroyed it compensates the value of the thing, plus the civil and natural fruits that might have had in the hands of the owner.
2. Misused Money: money is restored, interest is paid in place since the day of the crime, plus compensation for any other damage had been caused to the victim for the deprivation of capital.
3. destruction of another's property: if total destruction is paid the value of the thing destroyed more to repair all the damage. However, if the destruction is partial, the compensation is made by paying the difference between the current and original value, plus the repair for any damage.
Contract Scope: Guilt and Dolo (Middle-Result)
The obligations of result, the typical final interest sought for by the creditor falls within the legal relationship with which the debtor is required to provide the lender that interest.
other hand, the obligations of medium, the final typical interest does not fall within the required bond, and the debtor is not obligated to provide that interest, but must provide the means that lead to such interest (physician-patient .)
This classification is attributed to the French author demog. The classical doctrine (Llambías, Borda) believes that this distinction affects the rules of evidence of guilt, the outcome for the creditor must prove the breach, or cause source (title) and that the debtor's fault is assumed, while in the media, the creditor also must prove the guilt.
The modern doctrine is understood that this classification affects the foundation of contractual liability. Thus, the obligations are the only medium in which responsibility is subjective, while the outcome the basis of liability is objective (Must show accident, ie, a break in the chain of causation).
II - Responsibility reflects, indirect or vicarious
the vicarious liability when someone is committed by another person act work, so having to deal with repairing the damage caused.
The basis, according Llambías is the idea of \u200b\u200bguilt. It is a fault in the monitoring of the other person placed under the authority of, or is it a fault in the choice of the other person to perform certain tasks and the development of which the damage occurs outside. For other authors is based on the objective factor is the guarantee.
Responsibility for dependents
Art. 1113 provides that the obligation of which has caused damage extends to any damage caused by those under his authority. For this to be of, these requirements must be met:
1. Whether it be a wrongful act.
2. That harmful event is implemented by a dependent, that is, who has been placed by another for the execution of a task under the orders or directions of the person on whose behalf it work. It is not necessary to have the contract involved.
3. the clerk has acted within the framework of concern it deserves:
- In exercise of the function when the dependent work the harmful act practicing the order received.
be answered - On the occasion of the function: when means-end relationship between the function and damage, ie, if the performance of the role is what has become a necessary condition for the injury, so that if there had been that charge the damage had not occurred. Be answered.
- occasion of the function: where that function has not given an opportunity for the occurrence of the harmful event. The principal must respond.
4. That harmful event is attributable to the clerk.
5. That the victim justifies the harm.
6. What is the relation of causality between the dependent and the damage caused.
The victim can sue both the perpetrator (1109) as its principal (1113). You can also sue them, and if you just pay for the obligation is extinguished.
He who pays the damage caused by their dependents, may be repeated, since the main has vicarious liability against the victim, but he in turn is an indirect victim because of his dependent. This action will not play back if the author is not responsible for the consequences the same, as if he lacked the insight to act.
Responsibility for the fact of
To Llambías, the foundation of such responsibility lies with the guilt of those who have neglected the performance of an incapacitated person that he was confident. For other authors is the security factor. Regarding the
responsibility of parents, father and mother are jointly liable for damages caused by their minor children subject to parental authority, and living with them, that is, if parents do not live that is responsible exercising the ownership, unless at the time the damage was in the care of another parent. Thus
are required:
1. That the children are minors.
2. who are under the custody of the alleged charge.
3. That the minor children live with their parents.
no responsibility if the child was placed in a facility of any kind, and is on a permanent basis under the supervision and authority of another person. Nor do they prove that if parents were unable to prevent harmful acts.
If voluntary or legal emancipation, does not govern this liability reflected. Regarding the so-called emancipation of trade, although some say that only liable for acts arising from that activity, Bustamante Alsina believes that custody disputes.
This responsibility is sometimes indirect staff and other subsidiary or reflected. It's personal from the parents when the child who caused the damage is less than 10 years of age, in this case being the perpetrator responsible for lack of discernment, and parents are responsible for their guilt, and no action against recursoria son for the amount of compensation paid to the victim, except that with the fact it had enriched the author (907). In contrast, vicarious liability parent is a subsidiary or reflected if the child commits a wrongful act is more than 10 years and is responsible for its own act, in this case, parents have recourse.
The responsibility guardians and conservators is in the art. 1114 which states that the provisions on the parents exists in respect of guardians and conservators for the acts of people who are dependent. This scheme does not apply to the zoning of property of persons absent or disqualified persons curators, and the latter are capable.
If the damage is caused by a deranged injunction, it is estimated that there is no return action, but in case of unjust enrichment cause, equating to less than 10 years for his lack of discernment. Not so with the deaf who can not be understood in writing.
Responsibility of owners of educational establishments
Art. Vélez 1117 of the Code, following the French, laid the presumption of guilt of the principals and teachers for breach of duty of care.
For a long time, the justice of the solution adopted by Velez was not put into question, but then the school moved its dynamic nature: of that teaching personal, domestic, there was almost nothing. The teaching-learning process happened to develop in very different circumstances from which the massive stands. The doctrine began to claim that evaluates to "humanely" proof of the absence of the director's fault.
The entitled person is the owner of the educational establishment for the iniquity involved to assume responsibility to school principals and teachers in the current conditions of school life. Neither satisfied to charge the victim with evidence of the teacher's fault, because it would lead, in most cases, to leave the injured without compensation to which entitled.
The nature of the responsibility that the new law (24 830) has been established headed by the owner of the educational establishment will be tort for damages caused by the younger students and in the case of damages suffered by students, will contract, because breach of safety requirement. Should not respond by over 21 years.
The safety requirement of the owners of the establishments of learning is based on the security factor, leaving as the only defense the law enunciated by the fortuitous event.
should be noted two significant aspects of the new 1117: one related to the scope or extent of liability of owners of educational establishments, where it should be pointed out that the law makes schools responsible for damages incurred when students are "under the control of the education authority." The other regards the duty of establishing an insurance liability, under penalty of sanction.
regard to the liability of teachers, it can be implemented in two ways:
· When the educational institution has paid the injured party can bring action back, because you answered by the act of another, against the principal or teacher, proving that they have breached the duty of care.
· The victim can sue directly to teachers, in terms of 1109 because of his own act, demonstrating the guilt incurred by the teaching professional.
NOT FORGET THE RESPONSIBILITY OF THE HOTEL FOR THE EFFECTS INTRODUCED BY TRAVELERS!
Debtor's liability for its subsidiary (indirect)
Liability for auxiliaries is when a breach of the obligation is due to the fault of third parties that have been made by the debtor in the obligation. The Code brings no general regulation on non-contractual liability, but only refers to special cases in which charges the borrower for the fault of the auxiliary.
Arguably third helper is anyone not under obligation to the creditor who acts as assistant or substitute of the debtor, or will this initiative, in activities related to compliance with the obligation. This vicarious liability can be:
· Para algunos, el deudor es responsable por una cuestión de garantía.
· Para otros, el deudor es responsable por la teoría del riesgo.
· Otros consideran que el deudor es responsable por la representación.
· Para Giovini y la mayoría de la doctrina, el deudor es responsable por la teoría de la estructura del vínculo obligatorio.
La Teoría de la Estructura del Vínculo Obligatorio está basada en dos principios: primero la legal irrelevance of substitution between the debtor and the third, and second the equivalence of the behavior of the debtor and the third. Thus, the first principle, the debtor is free to develop their duty as they see fit (except intuition personae), and often choose the representation as a means to comply. What is not acceptable is that the debtor can be granted unilaterally as a debtor to another person. This determines that it is irrelevant to the legal system that a third party which has been breached. Regarding the second principle, taking into account what has been said and by the structure of obligational relationship, the damage being caused to the creditor by the failure the third is as good as if it has provoked an act of the debtor. The only means to free the debtor is fortuitous.
To speak of the responsibility of the debtor by the act of a third party, you need the following four conditions:
1. A pre-existing obligation between the creditor and debtor.
2. A third party that is totally alien to link obligational.
3. That same third party was introduced by the debtor in the obligation, ruling that acts voluntarily and the relationship between them. Will not be legitimate the obligations intuito personae, and it is wrong to say that between the debtor and third there is a relationship of dependence, since the relationship can be both fact and law.
4. The damage resulting to the creditor for breach of the third would be as long as it is related to the fulfillment of the obligation, given the contractual obligation due under the contract is given, which leads two distinctions:
- must distinguish the actions of the subsidiary's obligations, the mere factual circumstances of default (as if the power goes out
- Distinguishing intrinsic damage related to the enforcement activity, and extrinsic, unrelated to that activity. The debtor responds only by the former.
The creditor has a concurrent action against aides who have incurred guilt against the debtor, but its action is not contractual in nature, but tort, and that the creditor must be able to exercise all elements of the acts illegal.
The debtor has a right of recourse against his assistants, to recover the compensation that has to pay to the creditor because of them, except the law of contract of employment when there is negligence.
Liability for Damage Caused Things to Intervention
The man has things to its many activities, and here we are interested in the event that harm taking the thing active involvement in it (Alterini). If damage occurs without active intervention of things (no things or there but they do not cause damage), we are governed by art. 1109, while if the damage occurs with active intervention of things (whether damage to things or things) we are governed by art. 1113, paragraphs 2 and 3.
damage "with" thing "for" the thing
damage with the thing is the "made man": the thing is used as an instrument of human action. Damage the thing is the "fact of the thing": The damage is caused by the risk or defect of the thing. It is assumed that if a traffic accident is due to a defect or fault of the driver there is damage to the thing, and if the same accident is because of a brake failure, no harm for the thing. The system
Code Velez basis of liability was the fault of either the owner for not having used its legal powers on the thing in order to eliminate this potentially harmful condition, or guardian, of the blame on the guard this thing.
Art. 1113 refers to the owner or custodian of the thing. The owner is the owner, who has the real right of ownership of the thing. The guardian is, as Llambias, who in fact and on his behalf has the handling and use of the thing, we say "in fact" because we ignore the title or right that is available on the deal: the robber, which lacks all right, is the custodian of the thing he has the power on her, and say "their own" because if he uses anything he does as a slave of another, the guardian shall be the principal and not dependent.
Guardians are, for example, legitimate holders of the thing with the right to use and enjoy (tenant, borrower), which lack this ability (trustee, repository), and even illegitimate holders (robber, usurper). Alterini add is this burden on the owner a "presumption of saved" rebuttable, and that when the guard is exercised by a third party, the owner becomes the remainder beneficiary. According
Llambias, the guardian characters are:
· Tenure material thing no obligation to monitor something that you do not.
· powers-monitoring, governance and control over the thing: power fact that becomes effective on one thing regardless of title or right to have or not to exercise .
· autonomous and independent exercise of power: if he has the thing he uses as directed another, he is a guardian, a character that will block those who give the orders.
Under the new scheme incorporated by the Reformation, are responsible for damage to things: 1) the agent has used the thing, who is said to be guilty of injury, 2) the owner of the thing with that one has culpably caused the injury of the victim, may be exempted proving their lack of guilt, and 3) the guardian of a thing which seems unlikely, as no warning other than the agent why someone could be qualified as guardian of the thing used.
Regarding the allocation factors and exoneration of responsibility In damage to the thing presumed the guilt of the owner or guardian, which to exempt must demonstrate that their part was not at fault (1113). The subjective factor is to blame.
The damage caused by things, liability is strict (risk set), and the owner or keeper only fully or partially exempt from liability proving the guilt of the victim, the guilt of a third party who may not respond or unforeseeable circumstances. Art. 1113 provides that either the owner or guardian is responsible when things had been used against their will express or implied.
If the thing belongs to several condominium owners, the compensation should make each of them as the party had in the house (1135). In contrast, when the responsibility lies with several guards of the same thing, all of them jointly and severally liable against the victim, but we will pay the total refund is action against the other (1109).
Liability for damage caused by animals
This occurs when an animal damages the rights of another person or when the damage itself committed in the animal which is owned by another. The general principle states that is responsible for the damage caused by a pet owner or ferocious, but had been under the care of their dependent or damage was not in the general habits of their species, and the keeper of the animal, which is the person who by account is responsible for the care and government of the beast.
The basis of this responsibility lies with the guilt factor, although some say it is based on the risk created.
responsibility of the owner and the guardian are mutually exclusive: the owner's liability ceases when the animal moves being under the control of another person acting on their own. But the guardian who are responsible for damage caused by the animal can derive a recourse action against the owner, if he proves that he was guilty for not warning the characteristics of potentially harmful animal. It should be also responsible for a third party who had excited the animal thereby causing harm others.
responsibility ceases when:
· The owner conveys to another the keeper of the animal.
· The animal was released or lost through no fault of the person responsible for storage.
· Damage came caused by force majeure.
· Damage attributable to the fault came from the damage suffered.
· The animal was excited by a third party (responsible for the third).
· The injured animal to another animal, because it was causing it.
If the damage is caused by a fierce animal that does not report useful for keeping or service a property, the responsibility of the owner or guardian is inexcusable (1129), unless the victim voluntarily exposed danger. The damage caused by one animal to another shall be compensated by the offending animal's owner, provided that when there is no provocation from the victim.
Contrary to what happened in Rome, the owner of an animal can not escape the obligation to repair the damage by offering to leave the property of the animal (1131).
Contract area: the debtor's responsibility for the things used in the performance of the obligation
The basis of liability of the debtor in relation to the things used in the performance of the obligation is the duty of preservation or security, which concerns the protection of physical integrity required in accommodation contracts, hospital, public entertainment, etc.
0 comments:
Post a Comment