CONTRACTUAL LIABILITY AND TORT LIABILITY IN THE NEW CIVIL CODE. SIMILARITIES AND DIFFERENCES

CONTRACTUAL LIABILITY AND TORT LIABILITY IN THE NEW CIVIL CODE. SIMILARITIES AND DIFFERENCES Florin LUDUȘAN, Dimitrie Cantemir University, Bodoni Sandor 3-5, Tîrgu Mureş, Mureş, România. Abstract: The New Civil Code establishes civil tort liability (articles 1349-1395) and civil contractual liability (articles 1350 and 1516-1548). From the point of view of the editors of the New Civil Code, civil liability in its essence is unique, namely, it forms a single legal institution, non-unitary in terms of its legal status, meaning that it comes through in two forms: the tort liability, of common law and the contractual liability, special and derogatory. The institution of liability, being based on common essential elements, is undoubtedly unitary. Two branches come from this common core. Considering that in a case, the liability arises from the breach of the obligations of all members of society, while in the other case, liability means the breach of an obligation that would not have existed if a contract had not been concluded between the victim and the agent, the regulation of the two liabilities depicts differentiating features of technical organization, unessential, which, undoubtedly, typically differentiate them, without being able to transform them into two completely different institutions. Keywords: civil liability, contractual liability, tort liability 1. REGULATION OF THE CONTRACTUAL LIABILITY IN THE NEW CIVIL CODE. According to article 1350 of the New Civil Code, "any person has to carry out his / her contractual obligations" (paragraph 1), "when, without justification, he / she fails to fulfill this duty, he /she is responsible for the damage caused to the other party and is required to repair this damage according to the law" (paragraph 2). The third paragraph of article 1350 of the New Civil Code shows that "if the law does not provide otherwise, neither party may eliminate the application of the contractual liability rules to choose in the favor of other more favorable rules", expressly establishing the principle according to which none of the contracting parties may eliminate the application of the contractual liability rules for the damage that was caused by the lato sensu and unjustified failure, that is unlawful, of the contractual obligations, in order to choose for other rules that would be more favorable. Therefore, the contractual creditor is not entitled to choose between contractual liability proceedings and tort liability proceedings in order to get compensation for the prejudice caused by the illicit failure to perform the duties that the contractual debtor has [1, p. 203-204]. The rules that make the general legal system of contractual civil liability are provided by the New Civil Code, in Book V (on liabilities), Title V (fulfillment of obligations), Chapter II (enforcement of obligations), sections 1-4 (general provisions, putting in default the debtor, enforcement in kind, fulfillment by compensation) in articles 1516-1548. Article 1516 paragraph 1 of the New Civil Code provides the creditor's right to entire, accurate and timely fulfillment of the obligations the creditor has the right to entire, accurate and timely fulfillment of the Page 36

obligation. Article 1073 of the old regulation, the Civil Code of 1864, provided as follows: "the creditor has the right to obtain the exact fulfillment of the obligation; otherwise he is entitled to damage recovery". Article 1530 of the New Civil Code stipulates the creditor's right to damages: "the creditor is entitled to damages for the compensation of the prejudice caused by the debtor and which is the direct and necessary consequence of the unjustified, or as the case may be, culpable failure to fulfill the obligation". Article 1082 of the Civil Code of 1864 shows that "the debtor is justly condemned to the payment of damages or for the failure to fulfill the obligation or for the delay of the fulfillment, although he did not act in bad faith, except for the case when he justifies that the failure arises from a foreign cause, which cannot be attributed to him. 2. DEFINITION OF CONTRACTUAL LIABILITY. Legal doctrine defines civil contractual liability as follows: a) the obligation of the debtor to repair the prejudice caused to the creditor by the failure to fulfill, improper fulfillment or delayed fulfillment of the duties arising from a valid contract [2, p. 274.]; b) civil contractual liability is an application of the civil liability rule to a qualified assumption, namely, that of a prejudice arising from the failure to fulfill a pre-existing contractual obligation [3, p. 31]; c) the contractual liability is a form of civil liability, which is distinguished by the fact that the illegal, damaging action generating it consists of the failure to comply with the contractual obligations undertaken by the debtor and its purpose is to repair the damage caused to the creditor in kind or by compensation; contractual liability is a particular application of the civil liability principle in the cases where the damage is caused by the failure, improper or late fulfillment of the obligations arising from a valid contract [4, p. 775]; d) the debtor's obligation to pay for the damage caused to the creditor by the failure to fulfill, or the improper or late fulfillment of the obligations arising from a valid contract [5, p. 240]; e) the contractual liability is the obligation of the debtor of a contractual obligation to repair the damage caused to the creditor by the failure to fulfill lato sensu this obligation, namely its late or improper fulfillment, or by the failure to fulfill it in its restricted acceptance, as this breach of the contract may be attributed to him [6, p. 7]; f) contractual liability is a special, derogatory liability; given that the parties have concluded a contract, the damaged contracting party may get compensation only on the basis and within the limits established by the contract, which is the law of the parties; the contract is the document by which the parties have chosen to obey the rules they have established, providing rights and obligations; thus, either party is bound and obliged, under the contract, to submit to the same contractual conditions the disputes arising from the failure to fulfill or improper fulfillment of the contract, hence, to act based on the special liability, the contractual one [7, p. 141]; the civil contractual liability is a form of civil liability in cases where the damage is the consequence of the breach of contractual obligations; civil contractual liability requires the existence of previous relationships between the damaged party and the offender, arising from their agreement; without this report legal relation, the prejudice would not have occurred [8, p. 187]; contractual liability is that form of civil liability arising from the failure to fulfill contractual obligations, which consists of the debtor s repair in kind or by compensation of the prejudice caused to the creditor [9, p. 679]. 3. TORT LIABILITY IN THE NEW CIVIL CODE The New Civil Code includes the regulations concerning the legal status of tort liability in Chapter IV, Title II, Book V, articles 1349-1395. Civil tort liability involves a compulsory legal relation that arises from an illegal act causing prejudices; a relation in which the offender or another person called to respond has the obligation to repair the prejudice. Civil tort liability arises as a civil sanction, so it considers the assets of the person responsible for the illegal action, and in the case of the person s death, the compensation obligation shall be transferred to his / her heirs [8, p. 238]. According to article 1349 of the New Civil Code, (1) Any person has the duty to follow the rules of conduct, which the law or local custom requires, and shall not prejudice the rights or legitimate interests of others through his / her actions or inactions. Thus, the general obligation of any person to comply with the rules of conduct, which the law or local custom requires, and not to prejudice the rights or legitimate interests of others, through his / her actions or inactions, is imperatively provided for. Page 37

Therefore, we may learn that the illegal act is a behavior, action or inaction, which affects the rights or interests of other persons, ultimately, it breaches the legal standards or local custom [10. p. 156; another definition of G. Boroi and L. Stanciulescu in Institutii de drept civil in reglementarea noului Cod civil, Hamangiu Publishing House, Bucharest, 2012, pag. 246, says that: The illegal act, as element of civil tort liability, is any action or inaction by which, breaking the rules of objective right, prejudices are caused to the subjective right are or even to the interest of another person. We also consider the following remarks about the illegal act: a) not only the crime, but also the omission might be an element of civil tort liability, to the extent that the legal standard requires a person to act in a certain way, and he / she has not complied with the legal provisions; b) for the assessment of the illegal action, good habits are taken into consideration, to the extent that they are included in the legal rules refering to moral; c) for the assessment of the illicit action, the local customs are taken into consideration; d) an illegal action is not only when a civil subjective right is prejudiced, but even when particular interest of another person would be prejudiced], and the prejudice is a negative consequence suffered by the person as a result the illegal action of another person [8, p. 239]. Paragraph (2) of article 1349 of the New Civil Code stipulates the principle of liability of all persons who have discernment related to the prejudices caused by an illegal action, in the following terms: "If the person who has discernment breaches this duty, he / she shall be liable for all the prejudices caused, being obliged to compensate them entirely" and paragraph (3) of the same article 1349 of the NCC lists the other assumptions of liability stating that: "In the cases specifically provided by the law, a person is obliged to repair the prejudice caused by the actions of others, things or animals under his watch, and the of ruin the building. Although the fundamental principle of legal liability, according to which everyone shall answer for his / her own actions, is valid and applicable in civil tort liability, because of the necessities of social life, the applicability of the civil tort liability has also been extended to other situations than the ones created by the action [11, p. 382-383]. 4. SIMILARITIES BETWEEN THE CONtRACTUAL LIABILITY AND TORT LIABILITY Both liabilities are forms of civil liability responsibility [12, p. 135] have an identical structure [13, p. 236] and require the fulfillment of the same structural elements, cumulative presence of four conditions: illegal action, prejudice, causality relation of the illegal action and prejudice and guilt. Both contractual liability and tort liability are dominated by the idea of repairing the prejudice caused by the illegal action on the assets, in both forms of liability, the repair should be integral, namely, it should cover both the damage caused (damnum emergens) and the earnings, benefits not achieved (lucrum cessans) [14, p. 97]. In both cases, the repair of the damage is done in kind or when this is not possible, by money equivalent, which represents the value of the prejudice. 5. DIFFERENCES BETWEEN THE CONTRACTUAL LIABILITY AND TORT LIABILITY The relationship between contractual liability and tort liability. Tort liability consists of the "obligation of the person who has caused a prejudice to another person, through an illegal extra-contractual action that is attributable to him/ her, to repair the damages caused thereby, [6, p. 7] and civil contractual liability is a form of civil liability which is distinguished by the fact that the damaging illegal action generating it consists in the failure to fulfill the obligation undertaken in the contract by the debtor and its finality is the repair in kind or by equivalent of the prejudice caused to the creditor, at the same time being a particular application of the principle of civil liability in the cases where the prejudice is caused by failure to fulfill, improper fulfillment or delayed fulfillment of the obligations arising from a valid contract" [15, p. 816-817]. Civil tort liability is the common law of civil liability [7, p. 136], while the relevant regulations in the field of contractual liability have the character of special standards [15, p. 812]. Hence, it results that in all cases in which special legal regime of contractual liability is not applied, the legal rules that form the common law system, which is that of tort liability, shall operate, regardless of the origin or etiology of the breached obligation [1, p. 153]. Thus, civil tort liability will be used whenever the prejudice is caused by a person in breaching of a general legal obligation, the obligation not to harm the rights of others by illegal actions; while civil contractual liability Page 38

occurs only when the creditor suffers a prejudice due the failure to fulfill, late or improper fulfillment of contractual obligations, the breached obligation being a real contractual obligation, which he has undertaken based on the agreement provided for in the clauses of the contract. Contractual liability is committed by persons voluntarily united, while tort liability unites people as a result of chance [16, p. 11]. As related to their ability to respond, in tort cases, a person is liable if he / she had discernment on the date of committing the illegal action [2, p. 298]. Thus, according to article 1349 paragraph 1 of the New Civil Code "Any individual has the duty to comply with the rules of conduct imposed by the law or local custom and not to affect by his / her actions or inactions, the rights or legitimate interests of others. This text (article 1349, paragraph 1) provides imperatively the general obligation of any person to comply with the rules of conduct imposed by law or local custom, while paragraph 2 of the same article 1349 stipulates the principle of liability of all persons who have discernment related to the prejudices caused by an illegal action stipulating that: The individual who, having discernment, breaches this duty, shall be liable for all prejudices caused, being obliged to entirely repair them. As for the contractual liability, the legal competence of the offender should be complete [14, p. 97]. According to article 38 paragraph 1 of the New Civil Code "the complete legal competence commences on the date when the person becomes an adult" and paragraph 2 "A person becomes an adult at the age of 18. The differences between the two forms of liability also consist of proving the guilt, to make the offender liable. In the field of contractual liability, the debtor is presumed guilty. Thus, the contractual creditor should prove the existence of the contract and of the failure to fulfill it, as it is presumed that the debtor is guilty, until proven otherwise. The guilt presumption may be opposed only by proving the force majeure or accidental case, the creditor's fault or unavoidable act of a third party. As for tort liability, as principle, the guilt of the offender must be proven by the injured individual [7, p. 138]. At the same time, as regarding the extent of the damages, there is a distinction between tort liability and contractual liability. The common feature is that in both forms of liability, the repair is entire, namely, it should cover both the damage caused (damnum emergens) and also the gain, benefits not achieved (lucrum cessans). The difference is this: in case of tort liability, the offender has the obligation to cover both the predictable and the unpredictable damages, direct or indirect, while, in the case of contractual liability, the debtor is liable only for damages foreseeable upon the signing of the contract. A feature of contractual liability is that, under procedural aspect, the commitment is subject to the putting in default of the debtor, a formality not necessary in the case of tort liability [15, p. 816]. According to article 1521 of the New Civil Code, "the putting in default of the debtor may operate automatically or upon the creditor's request. According to article 1522 paragraph (1) "The debtor may be put in default either by a written notification by which the creditor asks for the fulfillment of the obligation, or by summons. (2) If the law or contract does not provide otherwise, the notification shall be sent to the debtor by the officer of the court or by any other means that provides proof of communication. (3) The notification should provide a deadline for the fulfillment, taking into account the nature of the obligations and circumstances. If the notification does not provide for such a period, the debtor may fulfill the obligation within a reasonable period, calculated as of the date of the notification. The putting in delay consists of unilateral expression of will by which the creditor warns the debtor and asks him imperatively to perform the obligation(s) undertaken, because of his forgetfulness, negligence or deliberately, he has not fulfilled his obligations until that moment. In our civil law, as for the contract law, in principle, the debtor is considered in default by the mere fact of the failure to fulfill his obligation at maturity. On the contrary, it is necessary to formally put him in delay that is to advise him to fulfill his obligations immediately or until a certain moment. The rule is explained by the implicit assumption that as long as the creditor has not received the services, he is passive, the failure to fulfill the obligations or the delay in the performance of the obligations has not caused any damage and that he has tacitly agreed to an extension of the maturity of the debtor s debt [1, p. 217]. In the case of civil tort liability, the debtor is automatically in delay, the compensation being payable by the offender causing prejudices, without formal notice. Another difference between the two forms of liability refers to the situation when the illegal action has been committed by several offenders. In the case of civil tort liability the offenders are solitary liable. Article 1382 of the New Civil Code provides that "Those who are responsible for a harmful act are held solidarily liable to Page 39

compensate the prejudiced". In the previous regulation, namely the Civil Code of 1864, article 1003 provided: "When the offense or quasi-offense is attributable to several persons, these persons are solidarily held liable for damages. The debtors are solidarily liable when they have the same obligation, so each may be held liable separately for the entire obligation, and its fulfillment by one of debtors exempts the others in front of the creditor (NCC 1443). Legal passive solidarity is a real guarantee to obtain the receivable, against the risk of insolvency, being an obligation for each solidary debtor to repair the entire damage. Subsequently, the debtor is entitled to seek legal remedy against the co-debtors, by which he recovers a part of the damages, according to their contribution. As related to the obligation, the full payment of the damages made to the creditor by one of the co-debtors exempts the others [17, p. 1457]. As for the contractual liability, in principle, the debtors obligations are divisible. The obligation is divisible between several debtors when they have the same obligation in front of the creditor, but each of them may be forced to fulfill the obligation only separately and within the limit of his part of the debt (article 1422 paragraph 1 NCC). According to article 1445 of the New Civil Code "the solidarity between the debtors is not presumed. It exists only when it is expressly stipulated by the parties or required by the law", while the Civil Code of 1864, article 1041 provided that "the solitary obligation is not presumed, it should be expressly stipulated. Another difference between the two types of liability concerns the non-liability agreement. In the case of tort liability, the non-liability agreements concluded before the offense are essentially null and void, while in the case of contractual liability, the non-liability clauses are valid within certain limits, according to their agreement, the parties may change, within certain limits, the legal provisions concerning the consequences of the failure to fulfill the obligations by the debtor. In the contractual clauses, the parties may agree to increase or diminish the amount of the compensation. The contracting parties may also stipulate sanctions which are not related to the civil tort liability, as the penalty clause, for the case of the failure to fulfill the obligations undertaken. BIODATA - Florin LUDUȘAN is university assistant at Dimitrie Cantemir University, Bodoni Sandor 3-5, Tîrgu Mureş, Mureş, România. REFERENCES 1. Pop, L., Tabloul general al raspunderii civile in textele noului cod civil, article published in Revista romana de drept privat, no. 1/2010 2. Lupan, E., Raspunderea civila, Accent Publishing House, Cluj Napoca, 2003 3. Anghel, I.M., Deak, Fr., Popa, M.F., Raspunderea civila, Stiintifica Publishing House, Bucharest 1970 4. Costin, M.N., Costin, C.M., Dictionar de dreptul afacerilor, 2 nd edition, Hamangiu Publishing House, Bucharest 2012 5. Pop, L., Popa, I.F., Vidu, S.I., Tratat elementar de drept civil. Obligatiile. Universul Juridic Publishing House, Bucharest 2012 6. Eliescu, M., Raspunderea civila delictuala, Publishing House of the Academy of the Socialist Republic of Romania, Bucharest 1972 7. Statescu, C., Barsan, C., Drept civil.teoria generala a obligatiilor. 9 th edition, reviewed and added, Hamangiu Publishing House, Bucharest, 2008 8. Boroi, G., Stanciulescu, L., Institutii de drept civil in reglementarea noului Cod civil, Hamangiu Publishing House, Bucharest 2012 9. Durac, G., Noul Cod civil, Comentarii, doctrina si jurisprudenta, vol. II., art. 953-1649, Mosteniri si liberalitati, Obligatii, Hamangiu Publishing House, Bucharest 2012 10. Pop, L., Tabloul general al raspunderii civile in textele noului Cod civil, article published in Revista Romana de Drept privat, no. 1/2010 Page 40

11. Farcas, A.V., Teoria generala a dreptului, Universul juridic Publishing House, Bucharest, 2011 12. Statescu, C., Barsan, C., Tratat de drept civil. Teoria generala a obligatiilor, Publishing House of the Academy, Bucharest, 1981 13. Albu, I., Drept civil. Contractul si raspunderea contractuala, Dacia Publishing House, Cluj- Napoca, 1994 14. Angheni, S., Drept civil. Teoria generala a obligatiilor, Oscar Print Publishing House, Bucharest 1993 15. Costin, M.N. Costin, C.M., Dictionar de drept civil de la A la Z, 2 nd edition, Hamangiu Publishing House, Bucharest 2007 16. Angheni, S., Clauza penala in dreptul civil si comercial, Oscar Print Publishing House, Bucharest 1996 17. Boila, L.C., Noul Cod civil Comentariu pe articole, art. 1-2664, Editura C.H. BECK, Bucuresti 2012 Page 41