Prescription of legal actions due to non-contractual responsibility when there are joint defendants

Non-contractual responsibility is regulated by Article 1902 of the Civil Code:

“Whoever by action or omission causes damage to another, intervening guilt or negligence, is obliged to repair the damage caused”

Extra-contractual responsibility covers not only damage caused by the individual himself, but also damages caused by a third party depending on him. Article 1903 states that this action is enforceable against the acts of those persons to whom an individual is responsible of:

“The obligation contemplated in Article 1902 of the Civil Code is enforceable not only for one’s own acts or omissions, but also for those persons to whom that one is responsible”

Regarding the term for the extra-contractual responsibility legal action is the shortest provided for in our Civil Code. Thus, article 1968.2º CC provides that these actions prescribe for the course of one year:

“The action to enforce civil liability… for the obligations arising from the fault or negligence in question and included in section 1902, from the time the aggrieved party became aware of it”

The one-year prescription period can be interrupted by an extrajudicial claim of the creditor. Or, by the exercise of the action before Courts or the acknowledgement of the debt by the debtor. However, what happens when there are two debtors/defendants? Is it enough to claim against one of them to interrupt the prescription period for both of them?  Or it will be necessary to claim to each of the debtors?

This is a very controversial subject in the Courts whose criteria has been changing over the years. Therefore, we will see in this article how it varies depending on whether the co-defendants are self-supporting or improper. Likewise, we will see the changing criteria by the Tribunals.

Prescription in case of “proper and improper” joint responsibility

Proper joint responsibility is imposed by a previous agreement or by law. Improper joint responsibility is declared by a Court’s ruling.

This distinction was made by the agreement reached at the General Meeting of the Judges of Supreme Court’s Civil Section. On March 27th 2003, it was agreed that the interruptive effect only applied in cases of joint responsibility. In other words, the interruption of the limitation period with respect to one of the debtors also applies to the other. The above does not extend to improper joint responsibility, excepting when it should be understood as agreed: “without prejudice to those cases in which, for reasons of connection or dependence, prior knowledge of the fact of the interruption may be presumed”. And “provided that the subject in question has also been sued”.

The above’s agreement has led Courts to take a restrictive approach in their examination and evaluation. And, to oscillate the acceptance of this prescription exception. Let’s see some examples in the following point.

Application of the interruptive effect of the prescription in joint-responsible defendants

One of the most typical examples is the lawsuits filed by insurance companies against energy sales and distribution companies. Generally, these are actions of non-contractual liability for electrical damage suffered in the facilities of their insured individuals. The problem appears when a period of one year has elapsed since the incident and only a singular claim has been made against one of them. Is the other one discharged due to prescription?

Seville’s Second Instance Court in Sentence number 498/2007 accepts the exception of prescription formulated by the Energy Sales Company. It considers that having not carried out any interruptive action, the action against the sales company is prescribed. It reads as follows:

“In response to this exception, on which, inexplicably, the sentence of instance remains silent, the court understands that it must be accepted, in accordance with the doctrinal criteria established in the agreement of the General Board of Judges of the First Section of the Supreme Court of 14 March 2. 003, which is echoed in the judgments of the same court of 27 March and 5 June of the same year, stating  that not all the rules provided for solidarity (joint responsabilty), determined by contract or by law, are applicable to improper solidarity, of jurisprudential creation, which derives from non-contractual liability, when there are several parties involved in the production of the damage, which would occur in this case between the two defendants, one as a supplier of electricity and the other as a marketer of the same and subscriber to the corresponding supply policy, and in particular that the rule provided for in the first paragraph of Article 1 is not applicable to such solidarity. 174 of the aforementioned code, according to which the activity interrupting the prescription in relation to one of the jointly and severally liable parties reaches and benefits the others. In this case, the interruption produced with respect to Iberdrola Distribución Eléctrica, S.A.U., through the bureaufax sent to it by the plaintiff insurance company, cannot reach Endesa Distribución Eléctrica, S.L.U., with respect to which there is no record of any interruptive action, and therefore the exception of the limitation of the action must be accepted, with the consequent revocation of the appealed judgment and the rejection of the claim, as regards the latter. (…)”

However, years later, the same Court, (different Section) fails to follow that sentence. We refer specifically to Judgment No. 77/2014 of 10 March. In this decision, despite the fact that the same agreements were reached by the Supreme Court, the Court decided to extend the interruption to the sales company. Considering that the extrajudicial claim made within the period of one year to the distribution company is sufficient. We have extracted below part of the Judgment:

“ENDESA pleaded the prescription of the action because, deriving its responsibility from extra-contractual or aquiline fault, no claim had been made by the injured party against it but after the one-year period established by article 1968.2 of the Civil Code (LEG 1889, 27) had elapsed (…)”.

“The Supreme Court ruling of 24 March 2013 analyses this question, stating that the doctrine has recognized, alongside the so-called “own solidarity”, regulated in our Civil Code (articles 1.137 and following), which is imposed, by default, “ex voluntate” or “ex lege”, another form of solidarity, called “improper” or “in solidum” obligations, which arise from the nature of the offence and the plurality of subjects who have contributed to its production, and which arises when it is not possible to individualize the respective responsibilities. To this last kind of solidarity, not all the rules provided for own solidarity are applicable and, in particular, Article 1.974 of the Civil Code in its first paragraph cannot be taken into consideration, much less when the alleged act was unjustified, by its own definition, with respect to those who were not brought into the process, based on an alleged responsibility “in solidum” (solidarity is not presumed according to Article 1. 137 of the Civil Code), which was declared for subjects other than those who were later linked by the design of the actor, to whom the singularity of a pronouncement established on the basis of the factual circumstances alleged and proven in the previous case cannot be extended, without the possibility of unilateral representations of solidarity without proven cause, precisely because of the inexistence of the expressed antecedent link “ex voluntate” or “ex lege”.

It is therefore necessary to make a statement on the proper or improper nature of the solidarity existing between the marketing company and the electricity distributor. As said responsibility is established by article 109 of the aforementioned Royal Decree 1995/2000, according to which “the responsibility for compliance with the individual and area supply quality indices corresponds to the distributors who sell energy to consumers or allow energy to be delivered through access to their networks, without prejudice to the possible repetition, for the proportional part of the breach, by the distribution company against the company which owns the transmission facilities, responsible for the delivery of energy at the points of connection between the transmission facilities and the distribution facilities”. As a result, the aforementioned joint and several liabilities of the electricity distribution companies, in this case ENDESA, arises from the above-mentioned regulations, and the nature of solidarity can therefore be predicted, with the result that claims made within one year against the marketing company will have interruptive effects, without the proposed exception being applicable”.

Conclusions

In conclusion, it should be noted that;

• The lawsuit for non-contractual responsibility can be exercised against both, damages individually caused and damages caused by its dependent individuals.
• This action has a prescription period of one year from the moment the aggrieved party became aware of the damage.
• Prescription’s interruption in the case of joint-defendants differs if it is a question of own solidarity or improper solidarity.
• According to the Supreme Court, not all the rules provided for joint-responsibility apply. The one determined by contract or law, are applicable to the improper one, which is determined by Judgment.
• If “appropriate” joint-responsibility is the case, activity interrupting prescription to one of the joint responsible, reaches and benefits the others. If it is “inappropriate”, the interrupting activity must be carried out in front of all those individuals jointly responsible.
• According to case law, there is not a clear criterion regarding the type of joint-responsibility that energy sales companies have with their distribution companies. And therefore, the scope that the lack of interruptive action against one of them can have.

If this article has been of interest, we also suggest you to read the following article published on our website:

Penalty clause and its moderation in courts