Liabilities as a result of harm, Non-contractual obligations...

Obligations as a result of harm

Non-contractual obligations

Obligations as a result of harm are attributable to non-contractual obligations, which also include liabilities due to unjust enrichment. From contractual obligations such obligations differ in that their occurrence is conditioned not by the will of the parties expressed in the contract or otherwise, but by other grounds specified in the law.

By virtue of the obligation as a result of causing harm, the person who caused harm to the person or property of another person (physical or legal) must compensate him in full, and the victim has the right to demand compensation for the harm caused to him.

Causing harm to the person or property of another person, with the exception of cases provided for by law, is a civil offense for which civil liability is to be incurred. Carrying such responsibility is the content of the obligation of the offender in the obligation that arose as a result of the harm. Responsibility that is extra-contractual in nature, according to a tradition derived from Roman law, is commonly called tort, and the obligation it contains is tortious.

Tortious responsibility should be distinguished from contractual liability, which arises from the failure or improper performance of a contractual obligation. However, in some cases, the rules governing non-contractual relations also apply to individual obligations arising from contracts. So, according to Art. 1084 CC harm caused to the life or health of a citizen in the performance of contractual obligations, as well as in the performance of duties of military service, police service and other relevant duties, is reimbursed according to the rules provided for in Sec. 59 ГК, if the law or the contract does not provide for a higher level of liability. Similarly, the issue of the carrier's liability for harm caused to the life or health of a passenger (article 800 of the Civil Code) is being decided. The basis for the occurrence of a tort obligation is the fact of causing harm. In paragraph 1 of Art. 1064 CC is indicated for causing harm to the person or property.

Causing damage to property means a violation of the property of the person in the form of a reduction in the amount of his property or value. In the case of causing personal injury , it is about harming life (death of the victim) or human health (bodily harm, illness). Both in causing damage to property, and in the prevailing degree when causing harm to the life or health of a citizen, property damage is liable to compensation. Only in cases stipulated by law, Compensation for non-pecuniary damage (item 1 of Article 151, item 2 of article 1099 of the Civil Code).

Moral damage are physical or moral suffering caused to a citizen by the unlawful conduct of another person.

According to the current law, according to the general rule, moral damages caused by actions violating personal non-property rights or encroaching on other intangible goods belonging to the citizen are subject to compensation. In violation of the moral rights of a citizen harm is liable to compensation only in cases directly provided by law.

For the onset of responsibility for causing harm, it is not enough just the fact of its infliction, it is also necessary to have a number of circumstances called conditions of tort liability.

A tort liability and, accordingly, tort liability arise if the following conditions exist:

• wrongful conduct of the person who caused harm;

• the causal relationship between the wrongful conduct of the harm-bearer and the harm that has arisen;

• The fault of the person who caused the harm.

According to paragraph 3 of Art. 1064 Civil Code, damage caused by lawful actions is liable to compensation in cases provided for by law. Consequently, as a rule, compensation for damage caused by unlawful, unlawful actions.

With the notion harm causer behavior Inaction is recognized as unlawful if the person was required to perform a certain action, but did not do so.

As a general rule, the harm caused by lawful actions, is not refundable. Lawful, in particular, recognizes the damage in the performance of a person's duties, prescribed by law, other legal acts or professional instructions. Equally, it is considered as the lawful infliction of harm by an action for which the consent of the victim himself is but subject to the legality of this consent.

The most well-known case of lawful harm is to inflict it in the state of necessary defense. According to Art. 1066 Civil Code, damage caused in the state of necessary defense is not subject to compensation, if it has not been exceeded.

The law allows only one exceptional case, when the damage caused by lawful actions must be compensated: the damage in a state of extreme necessity. The state of emergency, as follows from part 1 Art. 1067 CC, is a situation in which the danger threatening to the cause of harm or other persons could not be eliminated by other means, i.e. without causing harm to the victim. Although the actions committed in this case are recognized as lawful, the damage caused by them is subject to compensation by virtue of direct indication of the law (paragraph 3 of Article 1064, part 1 of Article 1067 of the Civil Code).

According to Part 2 of Art. 1067 of the Civil Code, taking into account the circumstances under which such harm was caused, the court may impose the obligation of its reimbursement on the third party for whose benefit the harm caused, or to exempt from compensation in whole or in part both the third party and the person who caused the harm.

As a necessary condition for the emergence of liability for causing harm is also the existence of a causal link between the act (inaction) of the harm-bearer and the harm that has arisen.

The condition for the onset of tort liability (although not always binding) is the fault of the harm-doer. The existence of such a condition is evidenced by the norm of paragraph 2 of Art. 1064 CC, according to which the person who caused the harm is exempt from compensation for harm, if he proves that the harm was caused not through his fault. By guilt is traditionally understood as a certain mental attitude of a person to his behavior and its consequences. A characteristic of civil law is the establishment of the presumption of guilt the cause of harm: such a person is convicted until he proves otherwise. The peculiarity of civil-law regulation of relations arising in connection with the infliction of harm also consists in the provision of Art. 1064 Civil Code of the possibility of the existence of a duty to compensate for harm and in the absence of fault of the causer of harm, i.e. in establishing the possibility of liability without fault. Such exclusion is provided, for example, by the rules on liability for harm caused by a source of increased danger (clause 1, article 1079 of the Civil Code); about the responsibility for the harm caused by illegal actions of bodies of inquiry, preliminary investigation, Office of Public Prosecutor and court (item 1070 GK).

The current Civil Code provides for the first time the protection of the rights and interests of individuals and legal entities from the risk of causing harm in the future. According to Art. 1065 of the Civil Code, the risk of harm in the future may be the basis for an action to ban activities that create such a danger. If the harm caused is a consequence of the operation of the enterprise, construction or other production activity that continues to cause harm or threatens further harm, the court is entitled to oblige the defendant, in addition to compensation for harm, to suspend or terminate the relevant activity. The court may refuse to bring an action to suspend or terminate such activity only if it is contrary to the public interest. This refusal does not, however, deprive the victims of the right to compensation for the harm caused to them.

Any subject of civil law may be the culprit of harm (debtor): a citizen (an individual), a legal entity, and public legal entities - the United States, its subjects , municipalities.

By law, the obligation to indemnify harm may be imposed on a person who is not the causer of harm , while the duty of such person to pay compensation to the victims over compensation of harm (item 1 of item 1064 GK).

A citizen can be recognized as the subject of a tort obligation, responsible for the harm done, provided that he has the ability to answer for his actions - delictuality. This quality is enjoyed by adults, as well as minors who have reached the age of 14 (Article 26 of the Civil Code). To non-selective, ie. who are not able to answer for the harm caused, are minors under the age of 14 years, persons recognized incompetent, and persons who caused harm in such a state when they could not understand the values ​​of their actions or manage them (Article 1073, 1076, 1078 CC) . In cases where harm is caused by actions of a nonindependent person, the persons indicated in the law are responsible for the harm caused to them, which become subjects of tort obligations (Article 1073, 1076 of the Civil Code).

As a subject of responsibility for causing harm, a legal entity can act. In this case, actions of a legal entity are actions of its employees or members committed by them in the process of performing their labor or membership corporate functions.

According to paragraph 1 of Art. 1068 Civil Code, a legal entity compensates for harm caused by its employee in the performance of labor (official, official) duties. The term worker is conditional, since workers are recognized as citizens who perform work on the basis of an employment contract (contract), as well as citizens who perform work under a civil law contract, if at the same time they acted or should have acted on the instructions of the relevant legal entity and under its control for safe conduct of business (paragraph 2 of item 1 of Article 1068 of the Civil Code). Similar rules apply to cases of injury to an employee by a citizen (an individual entrepreneur) in which a citizen who hired a person who caused harm to work or has entered into a civil law contract for the performance of work is liable.

The Civil Code contains a special norm, in accordance with which economic partnerships and production cooperatives compensate for harm caused by their participants (members) when the latter carried out entrepreneurial, production or other activities of a partnership or cooperative (paragraph 2 of Article 1068).

public legal entities. For example, harm caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, unlawful The use of administrative punishment in the form of arrest and in other cases specified in Cl. 1070 Civil Code cases, reimbursed by the treasury of the United States, and in cases provided for by law, at the expense of the treasury of the subject of the United States or the treasury of the municipal formation.

Persons who together have caused harm, are accountable to the victim in solidarity. However, on the victim's request and in his interests the court has the right to entrust such persons with shared responsibility (Article 1080 of the Civil Code).

According to Art. 1081 of the Civil Code, a person who has compensated harm caused by another capable person has the right of recourse (recourse) to this person in the amount of the compensation paid, if other size is not established by law.

The damage causer who has reimbursed the harm done together has the right to demand from each of the other causers the share of the compensation paid to the victim in the amount corresponding to the degree of guilt of this causer. If it is impossible to determine the extent of the fault, the shares are considered equal.

The United States, a US entity or a municipal entity in case of compensation for the harm caused by the judge in the exercise of justice, have the right to recourse to this person if his guilt is established by a court verdict that has entered into force.

The same public entities in case of compensation for harm on the grounds provided for in Art. 1069 and 1070 Civil Code, as well as decisions of the European Court of Human Rights have the right of recourse to a person, due to unlawful actions (inaction) of which the specified compensation was made (paragraph 3.1 of Article 1081 of the Civil Code).

The other party to the tort obligation is the victim, ie. A person whose property or identity is harmed by the actions of another person. Victims (creditors) in obligations from causing harm can be any subjects of civil law, including legal entities and public legal entities.

In the case of the death of a victim as a party, a disabled person is a disabled person who was dependent on the deceased or who had the right to receive the contents from him by the day of his death; the child of the deceased, born after his death, and also other persons specified in cl. 1088 GK.

In a tort obligation, the victim has the right to demand compensation for the harm caused to him, and the person responsible for causing harm must satisfy this requirement.

The victim's claim can be satisfied by the harm-doer voluntarily. In the event of a refusal or evasion of the perpetrator of the harm from fulfilling this requirement, the victim may file a suit with the court.

In paragraph 1 of Art. 1064 CC established the most important principle of tort liability - the principle of full compensation for harm, ie. reimbursing it in full. However, the law provides for some exceptions to the principle issued, allowing a reduction or increase in the amount of liability of the harm-bearer.

Reduction of the amount of compensation is allowed only in two cases, directly provided by Art. 1083 CC. First, the amount of compensation should be reduced if the gross negligence of the victim himself (including the degree of fault of the victim and the inflictor) contributed to the occurrence or increase of the harm. Secondly, the court can reduce the amount of compensation for harm caused by a citizen, taking into account his property status (except when the harm is caused by acts committed intentionally). At the same time, further reduction of the amount of compensation for harm is allowed, taking into account the change in the property status of the citizen. Thus, a court may, at the request of a citizen who caused harm, reduce this size if his property position due to disability or the achievement of the retirement age has worsened in comparison with the situation at the time of award of compensation for harm. However, this rule is also not applicable if the damage was caused by deliberate actions (item 4, article 1090 of the Civil Code).

It is also possible that the law or the contract establishes the obligation of the harm-bearer to pay compensation to the victims of compensation over compensation for harm (para 3 of clause 1 of Article 1064 of the Civil Code). For example, compensation for non-pecuniary damage, as provided for in Section 3, Art. 1099 CC, is carried out irrespective of property damage, which is subject to compensation, i.e. in excess of his refund.

Depending on certain circumstances, the amount of compensation for harm can change. So, the victim has the right to demand an increase in the amount of compensation for harm caused to life or health in case of disability (n. 1 item 1090 GK) or due to the growth of the subsistence minimum in accordance with the law in the corresponding US subject at the place of residence of the victim, and in the absence in the corresponding subject to the specified amount of the amount of the citizen being paid Amendment of harm caused to the life or health of the victim must be no less than the subsistence minimum per capita as a whole for the United States (statute 1091 CC), which is established in accordance with the law, .

Often, harm occurs as a result not only of the acts (or inaction) of the causer of harm, but also the behavior of the victim himself. From the legal and moral point of view, it is obvious that in such cases the person who caused the harm should not be liable without taking into account the guilt of the victim. So, if the damage arose from < strong> intent of the victim, it is not refundable. In cases when the gross negligence of the victim himself, was facilitated by the occurrence or increase in harm, the amount of compensation should be reduced in accordance with the degree of fault of the victim and the inflictor of harm (paragraph 1, para. I, item 2, article 1083 of the Civil Code). In case of gross negligence of the injured party and the absence of the fault of the inflictor of damage in cases where his liability occurs regardless of the fault (in particular, when harm is caused by a source of increased danger), the amount of compensation must be reduced or compensation for harm can be refused unless otherwise provided by law. However, in the presence of these circumstances, a refusal to compensate for harm caused to the life or health of a citizen is not allowed (paragraph 2 of clause 2 of Article 1083 of the Civil Code).

The law provides for two ways of compensation for harm:

• Reimbursement in kind (giving a thing of the same kind and quality, repairing a damaged thing, etc.);

• compensation for damages.

In recovering the losses caused, not only real damages shall be accounted for, but also lost profits (Article 1082, clause 2, Article 15 GK).

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