Fault and Deceit (Dolo and Culpa in Spanish Law)

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.