Analiza teoriilor privind fundamentele etico-filosofice ale răspunderii civile
Analysis of theories on the ethical-philosophical foundations of civil liability

Summary/Abstract: The present study aims to synthesize the theories that have been developed over time, starting with Roman law, the first law of a commodity-producing society. Thus, in the context of the development of Roman law, the idea that civil liability is based on the moral assessment of the conduct of the tortfeasor has gradually been accepted in most cases. For a long time, however, the concept of fault remained insufficiently defined and could not be imposed and accepted as a general principle and an absolutely necessary condition for civil liability in all situations. By contrast, in the law of the Middle Ages, under the influence of Judeo-Christian thought, particularly in French feudal law, guilt was thoroughly defined. Thus, coloured with the religious idea of sin, guilt gradually became a general and mandatory condition of civil liability, being expressly and generally enshrined in the texts of the French Civil Code of 1804 and, subsequently, in the Romanian Civil Code of 1865. The subjective concept has been synthesised in law into a general principle of civil liability and is essentially considered to be based on culpable conduct. Subsequently, from the last years of the 19th century onwards, as a result of the accelerated pace of technical and economic development and the results of the industrial revolution, which were reflected in new mechanisms, machines and increasingly complex production capacities, life and work became increasingly difficult to reconcile with the care and prudence needed to avoid accidents and the particular dangers that could have harmful consequences. Under these circumstances, fault-based civil liability became incapable of meeting practical needs in those cases where the damage was caused by accidents of all kinds. These were some of the reasons that led to the emergence of new orientations towards a different basis for civil liability than the fault of the liable person. Thus, so-called strict liability theories of no-fault liability were developed. The objective theory with the widest audience has been and is the theory of risk, in its different variants. Following criticism of both the theory of subjective liability and the theory of objective liability for risks (risk-profit, risk of activity, risk of authority), the legal doctrine of the second half of the last century argued for a mixed, dualistic theory which, in its various variants, admits that, in certain situations, reparatory liability is subjective, being based on the idea of fault, and in other situations, it is objective, i.e. without the fault of the person liable. The most important of the mixed or subjective-objective theories is the guarantee theory. Analysing the relevant provisions of the new Romanian Civil Code, the author concludes that the mixed or subjective-objective theory of civil liability is enshrined in our law. Thus, in principle, civil liability is subjective, based on the proven guilt or fault of the person liable. There are important exceptions to this principle, where civil liability is objective, without fault, based on the idea of guarantee, based on the risk of authority or, where appropriate, the risk of activity, such as liability for damage caused by the act of another and liability for damage caused by property, animals, ruin of the building, etc. As regards preventive civil liability, without certain damage, which is incurred for the prevention of events which may result in damage, it is based on the precautionary principle enshrined in the Treaty on the Functioning of the European Union and other regulations of the competent European authorities.

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