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What Does Guilt Mean in Romanian Civil Law?

To establish civil tort liability for the author of an illicit act, four essential conditions must be cumulatively met: the existence of damage, an illicit act, a causal link between the illicit act and the damage, and the guilt of the person committing the prejudicial act. The burden of proving these conditions lies with the person who seeks compensation for the damage suffered.

What Is Civil Tort Liability?

Civil tort liability, also known as extracontractual liability, is the legal obligation to compensate for damages caused to another person unjustly, outside of any contractual relationship between the victim and the perpetrator of the illicit act.

Guilt: An Essential Element of Civil Tort Liability

As mentioned earlier, the existence of guilt on the part of the individual who committed the illicit act is a fundamental requirement for establishing civil tort liability.

Guilt represents the psychological attitude of the author towards the illicit act and its consequences. While this definition is similar to that found in romanian criminal law, the concept differs in its scope of application between civil and criminal law, even though they share common elements. In both contexts, guilt consists of two factors: the intellectual factor (the individual’s capacity to understand the significance and consequences of their actions) and the volitional factor (the conscious decision to engage in or refrain from a particular action). These factors are interdependent, with the intellectual factor typically preceding the volitional factor, as the person mentally anticipates the consequences of their actions before materializing them.

Forms of Guilt in Civil Tort Liability

Similar to criminal law, civil law recognizes two forms of guilt: intention (dolus) and negligence (culpa).

In civil law, intention, known as “dolus”, characterizes actions where the author either aims to cause a particular outcome or foresees the result and accepts the risk of its occurrence. There are two types of dolus:

-direct dolus (direct intention): the perpetrator foresees the outcome of their action and aims to cause it (e.g., a person intending to steal an object).

-indirect dolus (indirect intention): the perpetrator foresees the outcome of their action and, although not aiming to cause it, accepts the risk of its occurrence (e.g., a thief who uses force against a victim resisting theft, despite not initially intending to assault them).

In both cases, intention involves both the intellectual factor (awareness of the illicit nature of the act) and the volitional factor (the decision to engage in the act).

Negligence (Culpa) arises when the author foresees the result of their action but unjustifiably believes it will not occur, or fails to foresee it altogether, despite being able and obligated to do so. Negligence is divided into two types:

-negligence with foresight (imprudence): the author foresees the result of their action but hopes it will not occur (e.g., a person who allows their usually friendly dog to roam free without a leash, despite the awareness that the dog may become aggressive if provoked).

-negligence without foresight (neglect): the author does not foresee the result of their action, although they should have (e.g., a driver who forgets to check the tires before driving, leading to an accident).

In both cases of negligence, the intellectual factor is evident: in imprudence, the author foresees the outcome but hopes to avoid it, while in neglect, they do not foresee it, even though they should have. The volitional factor, however, is present only in imprudence.

There are also degrees of negligence, determined by the level of intensity:

-gross negligence (culpa lata): any person with a minimum level of diligence would have foreseen the outcome.

-ordinary negligence (culpa levis): the person acted without the level of care expected of an average, reasonable individual.

-slight negligence (culpa levissima): the outcome could have been avoided only by a person with exceptional diligence.

Understanding these forms of guilt in the romanian civil law is important, especially when multiple parties share liability for a single damage. In such cases, the compensation is divided proportionally based on the degree of participation in causing the damage. If this degree cannot be determined, it is divided according to the intention or severity of negligence (article 1382 and article 1383 of the Civil Code).

Conclusions

In conclusion, without guilt, a person cannot be considered the author of an illicit act, making guilt an essential condition for establishing civil tort liability. Although the elements and forms of guilt have been borrowed from criminal law, they play a more significant role in determining the type of punishment in criminal cases. In contrast, in civil law, the application of the forms of guilt is more of an exception, as the primary goal of illicit acts is the compensation for damages incurred, regardless of whether the act was committed with intent or negligence.

                                                                                                      Didem Tosun

Legal intern – R&R Partners