КОНКУРЕНЦИЈA ДЕЛИКТНЕ И УГОВОРНЕ ОДГОВОРНОСТИ (ПРОБЛЕМ ИЗБОРА ОДШТЕТНОГ ЗАХТЕВА)
COMPETITION BETWEEN TORT AND CONTRACTUAL LIABILITIES - The Problem of Choice of the Claim for Damages -

Summary/Abstract: When a violation of a contractual obligation amounts also to an action in tort, the issue arises as to whether the person suffering damage should be entitled to choose the ground of his claim for damages, putting thus into effect that kind of liability which is more suitable to him. Comparative law mostly witnesses to the adoption of the system of free choice of the claim for damages. Those favouring the opposite solution claim that the freedom of choice disturbs the regime of contractual liability, while leaving the contract without effect. However, even in the systems where cummulation of claims is prohibited, departures are allowed which favour the person suffering damage (cases of wilful causing of damage which is also a criminal offence; successors of the person suffering damage, etc.). The problems is complicated also by practical difficulties in a series of cases (some of which are reviewed as characteristic) where the courts can not positively determine the kind of liability at issue. Determining the ground of liability frequently falls within the competence of higher court.

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