Damage

  Criminal law, crimes
He damage It is the legal gain that a person fails to obtain or the expenses caused by an act or omission of another that contravenes a Legal standard. The damage gives rise to compensation, but it must be proven or recognized, and there must also be a causal link between the action or omission and the damage.

It is regulated in the Civil Code. It should not be confused with damage, although both concepts go hand in hand.

In fact, the Civil Code recognizes the Compensation for damages, which covers the material value of the loss and the profits forgone.

The compensation of damages It includes not only the value of the loss they have suffered, but also the value of the profit that the creditor has failed to obtain, subject to the provisions contained in the following articles.

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Article 1106 of the Civil Code

Types of damages compensable

Every person, physical either legal, is exposed to suffering or causing harm and harm in her daily actions, not only to other people but also to the social environment in which she works, and assumes the civil liability to compensate for the same.

Without embargo, Not all damages are compensable. Compensable damages may affect a person's assets or integrity, or both.

Based on this criterion we arrive at a first classification of damages:

  • Material damage. It translates into an economic loss. Among the material damages are the damages and lost profits.
  • Moral damage. It is of a non-pecuniary or extra-property nature. It can translate into moral damage and physiological harm or harm to the life of the relationship. Among these damages are those that affect the integrity, honor or reputation of the victim.

According to the origin

On the other hand, the origin of the damage must be taken into account, that is, whether or not the actions or omissions are expressly punishable by law.

This is how contractual and extra-contractual civil liability arises, the latter arising from acts or omissions that, without being expressly included in the laws, generate personal or property damage to another person.

1. Damages due to breach of contract

The Civil Code expressly determines in its article 1101 that those who in compliance with their obligations committed fraud, negligence or late payment are subject to compensation for damages.

Those who in the fulfillment of their obligations incur fraud, negligence or late payment, and those who in any way contravene the tenor of those obligations are subject to compensation for damages caused.

Article 1101 of the Civil Code

Not all breaches of contract cause compensable damages, but only consequential damage and loss of profits.

It must be taken into account the existence of a penal clause in the contract. In the event of non-compliance, the penalty clause may replace compensation for damages in order to ensure compliance with the main obligation, unless the right to demand has been expressly reserved.

2. Extracontractual damage

In this case, the non-contractual damage has the same origin, but the damage is caused to a person with whom the causer had no relationship before the damage occurred.

It is regulated by article 1902 of the Civil Code.

He who, by action or omission, causes harm to another, intervening blame or negligence, is obliged to repair the damage caused.

Article 1902 of the Civil Code

Among the non-compensable extracontractual damages are situations such as self defense, state of need, consent of the injured party or fortuitous event.

3. Harm without harm

There may be harm without harm, for example, breach of leasing contract.

Requirements for compensable damage

So that the damage suffered give rise to compensation The following requirements must be met:

  • The damage must be real.
  • There must be a causal relationship between the action or omission and the damage caused to the property or person.
  • The damage must be demonstrable based on expert actions or recognized by the deceased.
  • The damage must be emerging, real and effective. Let us remember that consequential damage is a certain and verifiable fact that is proven by the specific and accredited expenses that the victim had to make based on the event. That is, a real and effective loss.

Exceptions from the Civil Code: Contractual breaches are not always compensable. For example, in the event of default, compensation will consist of the payment of agreed and legal interest.

Damages compensable in Spanish legislation

According to the Civil Code and other laws, the following are among the compensable damages:

  1. Failure to comply with the obligation to promote the constitution of the guardianship.
  2. Breach of contracts due to fraud, negligence or late payment.
  3. Any contravention of signed contracts.
  4. Intrusions on the rights referred to in the Organic Law of the right to honor, personal and family privacy and one's own image.
  5. Expropriation of leased rural properties according to the Forced Expropriation Law of 1954.
  6. Deprivation of basic consumer rights and different situations mentioned in the General Law for the Defense of Consumers and Users.
  7. Improper collection for credit contracts.
  8. Damage caused by acts of the registrars, according to the Mortgage Law.

The Compensation must be of a reparatory nature. In the Civil Code there is no rule for assessing damage, but only that it must include the value of the loss suffered and the profits lost due to the event.

For the purposes of set compensation, the type of action of the deceased must be taken into account, that is, whether he acted in good or bad faith, if there was blame or fraud or if it is a contractual or extra-contractual damage.

Expiration and prescription of the claim for damages

The deadlines for claiming damages They are a complex issue.

There are different deadlines for the claim, expiration and prescription of the claim for damages, depending on whether it is a judicial action or another type of claim, and also depending on whether it is a contractual or extra-contractual damage and in this case, the type of contract.

Therefore, there are different possibilities, namely:

  • Insurance contracts: The deadlines depend on the policy. In general, the claim expires after 5 years if it is life insurance, or 2 years in the case of property insurance.
  • Civil Code: establishes a general period of 15 years for the injured party for any contract that does not have a specific claim period. The legislation of the Autonomous Communities must be taken into account. In the case of hidden defects, the expiration period is 6 months.
  • Commercial Code: establishes a period of 3 years for breach of commercial contracts or liability of the manufacturer or seller. It is 2 years in the case of travel contracts.
  • Extracontractual liability: The statute of limitations is one year.
  • Responsibility of the Public Administration. One year to claim compensation. In the event of a denial of said claim in writing, a period of 2 months applies for the presentation of the demand judicial, which extends to 6 months due to administrative silence.