Last updated: 28 July 2026.
Quick answer. Spanish law distinguishes two grounds of contractual liability. Fault or negligence (culpa) is the omission of the diligence required by the nature of the obligation and the circumstances of persons, time and place (Article 1104 of the Civil Code); courts may moderate this liability under Article 1103, and the parties may alter it by agreement. Wilful misconduct (dolo) is the debtor’s conscious, deliberate failure to perform — no intention to harm is needed. It aggravates liability: under Article 1102 any waiver of the action to enforce it is null and void, the courts cannot moderate it, and it is never presumed — the creditor must prove it.
The consequences of misconduct depend on which type of misconduct are attributable to the debtor and to what extent.
There are two causes of Liability:
Fault, Negligence Or Culpa
- The fault or negligence, as a consequence of misconduct, refers to when one party is careless, neglectful or does not apply the proper expertise to the acts within the contract. The amount of diligence required in each contract depends on the nature of the actions and the characteristics of the person obliged.
- Article 1.104 of the Spanish Civil Code states that: ‘the debtor’s fault or negligence consists of the omission of the diligence required by the nature of the obligation that corresponds to the circumstances of the persons, time and the place.’
- GROSS NEGLIGENCE (CULPA LATA)
- This affirms that the amount of negligence depends on the standard of diligence in which the party acted. So, if there was hardly any diligence, this means gross negligence (culpa lata).
- NORMAL NEGLIGENCE (CULPA LEVE)
- Normal diligence would constitute ordinary negligence (culpa leve) and high diligence would mean slight negligence. This distinction is important if in a case, gross negligence is considered as deceit.
- Proof of negligence or deceit – rather than proof of negligence or deceit, the Spanish courts normally reverse ‘the burden of proof,’ that enforces the creditor to prove negligence, and rather asks the debtor to prove the diligence of his conduct or justify their misconduct.
- Liability caused by fault of the debtor can be altered via agreement of the contract’s parties.
- This is due to the flexible and non-binding nature of Article 1.103 which states ‘liability arising from negligence is equally enforceable in the performance of all kinds of obligations, but may be moderated by the Courts on case by case basis.’
- Also, due to Article 1.102 which does not include liability for deceit but that ‘liability arising from wilful misconduct is enforceable for all obligations. Waiver of the action to enforce it shall be null and void.’
Deceit
- Deceit (or intention) entails the debtor consciously not fulfilling nor performing the acts agreed on in the contract. Even if there is no intention of harm, deceit in misconduct is defined as a conscious and deliberate act. Moreover, deceit, as a form of misconduct, is worse than fault or negligence as it aggravates the liability of the debtor.
- As it is a graver form of misconduct that fault and negligence, the Spanish courts cannot mitigate nor change the liability if it is a result of deceit. Moreover, the action to enforce liability of deceit cannot be removed and deceit shall never be presumed, it has to be proved by the creditor.
For advice applied to your case, see our Civil Litigation practice area.
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Frequently asked questions
Culpa (fault or negligence) is careless or unskilled performance: the omission of the diligence required by the nature of the obligation and the circumstances of persons, time and place, as defined in Article 1104 of the Spanish Civil Code. Dolo (wilful misconduct or deceit) is the debtor’s conscious and deliberate failure to perform what was agreed, even without any intention to cause harm, and it is treated as the graver form of misconduct.
The degree of negligence depends on the standard of diligence with which the party acted: gross negligence (culpa lata) where there was hardly any diligence, ordinary negligence (culpa leve) where diligence was normal, and slight negligence where diligence was high. The distinction matters because gross negligence may be treated as equivalent to wilful misconduct.
Yes. Article 1103 of the Civil Code provides that liability arising from negligence is enforceable in all kinds of obligations but may be moderated by the courts on a case-by-case basis. The parties may also alter negligence-based liability by agreement, given the flexible, non-mandatory nature of that rule.
No. Under Article 1102 of the Civil Code, liability arising from wilful misconduct is enforceable in all obligations and any waiver of the action to enforce it is null and void. Unlike negligence, the courts cannot mitigate or modify liability that results from dolo.
For negligence, the Spanish courts normally reverse the burden of proof: rather than requiring the creditor to prove fault, they ask the debtor to prove the diligence of their conduct or justify the breach. Wilful misconduct is different: dolo is never presumed and must be proved by the creditor.
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