When You Must Pay for Harm
Civil liability answers who bears the cost of a harm? Two doors lead there, dividing obligations into separate legal regimes.
| Contractual | Extracontractual (Tort) | |
|---|---|---|
| Link | A breached agreement | The general duty not to harm |
| Duty | The contract's terms | Reasonable diligence |
| Case | Late builder, bad delivery | Traffic accident, falling sign |
Extracontractual liability stems from Article 1902 of the Civil Code: whoever by action or omission causes damage to another, with fault or negligence, must repair the damage caused.
Liability needs three elements like a circuit in series: Fault, Damage, and Causation. If any element is missing, the claim collapses completely.
The Elements and Business Risk
To trigger Article 1902, all three elements must hold simultaneously:
- Fault or negligence: falling below the diligence of a reasonable person. Accidents without negligence stay where they fall.
- Damage: a real, provable harm. Includes actual loss (daño emergente), lost profits (lucro cesante), and moral damage.
- Causation: the conduct must directly cause the damage. Force majeure or the victim's act breaks this chain.
Business exposures: An employer faces vicarious liability for employee torts. Manufacturers face strict liability where fault drops out of the formula.
Pitfall: Courts increasingly presume fault in risky activities. The defendant must prove diligence, turning managerial arithmetic—probability times magnitude—into an urgent necessity.