Non-contractual civil liability in Mexico. An evolving concept.
This institution contemplates, on the one hand, the responsibility of those who voluntarily enter into an obligation through the execution of legal acts and, as a result of their non-compliance, are liable before those affected, a figure known as “contractual liability”. And on the other hand, it also foresees such liability as a result of non-fulfillment of obligations, whether voluntarily or involuntarily, by the party who causes harm derived from said non-compliance, known as “non-contractual liability“.
Non-contractual liability, commonly occurs when performing illegal acts (civil, not criminal); As, for example, it can be to injure or even the death to a person derived from an accident or sinister.
At the same time, noncontractual liability has two nuances: subjective liability and objective liability.
Failure from the party responsible for their obligations causes the affected person to claim liquidated and moral damages.
Such non-contractual liability in Mexico has a state legislative competence, therefore, it is regulated by the Civil Codes of the States, it is to be mentioned that its protection is more or less subject to the reservation of some scopes that differ in the Legislation of each different State, regarding San Luis Potosí, we find its enforcement in the article 1746 and its following of the Civil Code of the State.
Prior to 2011, extra-contractual civil liability in most States was limited only to the payment of damages, whose quantification formula was in turn limited by using, for such purpose, a portion of the amount determined for the event of work injury or death, in virtue of the Federal Labor Law, which foresaw a maximum payment of seven hundred days of the minimum salary in the event of death, a smaller amount that did not represent a real risk or a substantial economic penalty for the person causing the damage.
However, the issue is relevant in Mexico, as this institution began to experience constant changes resulting from legislative and administrative amendments, which caused the claim of these economic sanctions to be very different nowadays.
This is so, because from the beginning, the labor authorities created what they called professional minimum wages and, therefore, the aforementioned “minimum wage”, applied to the days of the formula for quantifying the caused damages, would no longer have as a reference the smallest of such wages, but that which corresponded to the profession of the affected individual, and therefore has a much larger salary base.
On the other hand, and from the amendment of the Federal Labor Law of 2011, the days subject to payment for damage repaired were increased drastically; in the case of death, the days for the quantification amounted to five thousand days.
To this we must add that most of the States began including in their civil legislation, in addition to the terms of liquidated damages, the figure of “moral damages“, which implies additional and different compensation to those previously mentioned, whose quantification would be subject to the assessment and interpretation of the Judge, and in some cases limited to an amount no greater than the payment of liquidated damages.
However, today, and as a result of different events, and different jurisprudential interpretations done by the Supreme Court of Justice of the Nation, it has been considered that, for the quantification of damages through these damage reparation figures, traditional damage should not only be taken into account, but also the quantification of damage under the concept of “loss of profit” (lucrum cessans) which provides the possibility of a wider quantification, as well as giving punitive and not only restitutive effects to the reparation of damage, through what has been considered as “punitive damages” in Mexico and, thus, avoiding the damage from being caused again.
For all of this, and given the evolution that the enforcement of civil liability has had in Mexico, is that we make clear the need for individuals and companies to protect themselves against the possible existence of such damages, and that even if caused in an involuntary wat, such contingencies should be anticipated.
MGM.
