The jurist Ulpiano argued that there were only three principles of irreproachable life for the Romans: a) live honestly, b) do no harm to others, and c) attribute to each one what is theirs. The second of these rules is known in the legal field with the Latin phrase Alterum non laedere. "Not harming another" is the basis of civil liability, whether contractual (when the link that unites the parties is a contract of any kind) or non-contractual (when one of the parties damages the patrimonial sphere of the other without breach a contract). In the Salvadoran judicial sphere, it is very common for lawsuits for breach of contract to file through the Courts, but not for non-contractual liability; Why are non-contractual claims not so common?
I propose that the foregoing is due to the lack of development of the culture of tort claims by the legal profession itself in the country. In other Latin American latitudes such as Mexico, Colombia, Argentina or Chile, among others, the culture of non-contractual claims is as frequent as those of a contractual nature. There are lawyers or entire law firms dedicated to claims for accidents in supermarkets, claims for damage to the physical integrity of people for acts that do not necessarily constitute crimes, patrimonial damage suffered by companies due to others that have committed unlawful acts, and even communities that They claim non-contractual damages from Municipalities or the State for negligence committed by their officials.
The lack of culture to make non-contractual claims lies in the ignorance of the essential elements of civil liability, which are the same for both contractual and non-contractual liability. According to contemporary doctrine, we can establish four essential assumptions of non-contractual liability: a) existence and accreditation of a hurt caused; b) illegality of that damage produced by an unlawful act or omission; c) existence of a liability attribution factor; and d) a causal link relationship between the unlawful act or omission and the damage caused. In order to develop the culture of non-contractual claim, each of the assumptions based on current doctrinaires such as Mario Montoya Gómez and Marcelo López Meza is briefly exposed below.
a) The damage: Civil liability is built on this assumption. Without damage there is no sanction of any kind, unlike what happens in criminal law. There must necessarily be an impairment that justifies a sentence to repair. Civil liability is not intended to penalize conduct, but to compensate damage. The damages caused by fault do not correspond to punishments, but to compensations that do not imply penalties, but mitigation of damages.
The damage must meet six requirements: 1) certainty, is one whose occurrence is not conjecture or doubt, but demonstrable as to its existence and extent. 2) personality, that is to say that it must be a damage that belongs to the person claiming it. 3) framing in a compensable category, doctrinally these categories can be divided into direct damage, consequential damage, moral damage and loss of chance. 4) transcendence, that is, to be compensable, the damage must be significant. 5) legitimacy, that is, that the injured right must be legitimate and legally protected. 6) subsistence, it is determined that the damage must subsist at the time of its repair.
b) Unlawfulness: this budget is based on our constitution. Article 8 of the same establishes: "No one is obliged to do what the law does not mandate or to deprive themselves of what it does not prohibit." In this sense, if the secondary law or administrative regulation mandates to do or omit a certain action, the individuals subject to said legal norm are obliged to comply with it, otherwise they are responsible for compensating the damage caused. Unlawfulness or illegality -a term that is used as a synonym in civil law-, consists of a procedure that infringes a legal duty pre-established in a norm or rule of law and that causes damage to another, forcing its reparation to whoever is responsible in by virtue of an imputation or legal attribution of the damage.
c) Responsibility attribution factor: The factors of attribution of responsibility are the reasons that justify that the damage that a person has suffered is repaired by someone, that is, that it is financially transferred to another. An attribution factor is the answer to the question why this agent should repair that damage. In our legislation, fault is established as a determining factor for tort liability. Guilt can be divided into three: a) as negligence, when the subject omits a certain activity that would have prevented the harmful result, does not do what he should or does less; b) as imprudence, when –on the contrary- one acts hastily, without fully anticipating the consequences that this thoughtless act may lead to; that is to say, what is not due or more than what is due is done; and c) as lack of skill, that is, ignorance of the pertinent rules and methods, since it is obvious that every individual who exercises a profession must possess the theoretical and practical knowledge of it, and act with the necessary foresight and diligence in accordance with those .
d) Causal link: The causal relationship, or causal link between the conduct of the person responsible and the damage caused, is the basis of civil liability. It is the element that links the damage, directly, with the fact and, indirectly, with the factor of subjective imputability. Causation, in essence, is probability. Probability is the possibility or chance of a particular event happening. Causality is not, in law, more than an acceptable probability; In this sense, the adequacy relationship between action and result therefore represents a probability relationship.
In conclusion, in order to develop a culture of non-contractual claim, we must observe in daily life any type of violation of our patrimonial sphere, and see if the previous four assumptions of non-contractual responsibility are found. As an example, a person trips into a 50 cm hole in the unmarked sidewalk and fractures his hand (injury). The hole was dug by the telephone company for the purpose of installing a telephone pole, not for causing damage (fault). The municipal or company regulations indicate that danger signs must be placed when starting said work (unlawful). The fractured hand is the result of the lack of marking of the hole and not the fault of the victim since he was traveling on the correct path (causal link). In our reality, such a person will simply go to a hospital and pay their own damages. By not having the culture of non-contractual claim, it will not claim the damages caused, not only to the worker who omitted the proper signaling, but also to the company responsible for the work.