EL DISTINTO ORIGEN DE LA RESPONSABILIDAD CONTRACTUAL Y EXTRACONTRACTUAL: APORTACIONES PARA UNA REVISIÓN CRÍTICA DE LAS CONTROVERSIAS JURISPRUDENCIALES Y DOCTRINALES PLANTEADAS ANTE ESTA DUALIDAD.

Abstract

As we all know, civil liability, meaning the need to repair damage done to a person, can and in fact does have different origins; it may be contractual, caused by a party's breach or defective performance of a contract, or it may be extracontractual. In the latter case, there is no link between the parties. They may not even know each other. Even so, one does damage to the other that must be repaired. Although in both types of liability it is the obligation of the person doing the damage to repair it, the fact is that the two types of liability are regulated differently, which means the channel through which the damaged party claims indemnification matters. At first sight, the choice might be thought to be a no-brainer. If there is a contract between the parties, the right thing to do is take action for contractual liability, which has a 15-year statute of limitations. Otherwise, the correct course is to take action for contractual liability, which one can do up to one year after the harmful event occurred. But it so happens that there are grey areas where it is not clear whether the damage was done within the strict orbit of a contract (as the Supreme Court requires in order for contractual liability to be claimed) or, on the contrary, extracontractual liability action is the way to go. To this we add, as further evidence, that the amount of the indemnity in extracontractual liability is usually larger than in contractual liability. Furthermore, the same harmful event may give rise to a violation of the rule of neminem laedere and involve, at the same time, a breach of contract that gives rise to a whole conjunction of liabilities, making it hard to choose which type of legal action to take. The upshot of the duality of regulations involved is that there are numerous conflicts, as shown by this paper, which gives a thorough analysis of the pertinent case law and the contributions of legal thought.