The Problem of Concurrence of Contractual and Aquilian Liability: A Historical-Dogmatic Perspective.

• Grant number: 12/11384-1
• Support Opportunities: Scholarships in Brazil - Post-Doctoral
• Start date: October 01, 2013
• End date: April 30, 2014
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Eduardo Cesar Silveira Vita Marchi
• Grantee: Edson Kiyoshi Nacata Júnior
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The damages caused by a single fact can be the object of different legal rules, whose effect determines that the person who caused the damage is liable both for an absolute tort (extra-contractual liability, also called «aquilian» liability) and a relative tort (contractual liability).The Roman sources seem to offer evidence regarding the treatment of this problem by roman jurists. They discuss «actionenrechtlich» (i.e., from the perspective of action) to determine whether the action that lies in favor of the creditor is the actio legis Aquiliae or the actio ex contractu (v.g., actio locati ou conducti) to protect the interests of the person who suffered the damage as part of a contractual relationship. This phenomenon is not strange to the modern legal experience and various propositions and theories regarding the problem can be identified. Grosso modo, (a) one posits the concurrence of rules; (b) another supports the primacy of the legal rule concerning relative torts, and (c) the other advocates a mixed or intermediary solution.Our point of departure consists in the solutions adopted with regards to the problem of the concurrence of contractual and aquilian protection regarding the same fattispecie in Roman juridical sources. Next we intend to investigate how this problem is treated by the Brazilian legal system, in order to elucidate the influences it has undergone and the options available within the context of the legal system to which it belongs, namely, the romanist.