Hacia una nueva teoría de la responsabilidad

Abstract

The late Roman law found five sources of the obligations (contracts or acts, "quasi-contracts", delicts o crimes, "quasi-delicts" and the law) that explains, at least, the reason of de necessity to act (or not to act) to provide to another an advantage of its interest defended by the juridical system. But that solid dogma that gave the impression of being the culmination of the scientific analysis, didn't resist the debate, neither responses to the cultural and social developments, and for this reason all modern specialist of the law is necessarily unhappy with those ideas.The author tries to find the essential juridical structure, common to the origin of those obligations that don't arise from contracts or direct order of law, to identify, if it is possible, an unique juridical regime that unifies the. figures that today are denominated "liability". His propose is to change the focus of attention of the problem, leaving aside the behavior as an essential element of the responsibility, to see mainly the damage or the affectation of the interest of the person, and generalize the topic, basing .it in the most elementary and unquestionable axiom in the social organization: If the society is a formula to protect the people and does it promote its well-being, all damage are out of law and should it to be compensate o reimbursed for the probable damage's agent -the responsible subject – The damages can be consequences of personal actions, but also by material or immaterial elements that integrate the "individual's juridical environment", that is to say their orbit of interest (their patrimony, people under their custody and their social impositions), so we can present the concept of a prejudicial interference among these orbits of interest and immediately the elements of the theory flow: When there are a damage in some element that compound the interest's orbit of a person, for the interference with an element of another orbit of interest, it will be indemnity, unless it damage was lawfull. The legality of damage is given by the law, the subject that was affected, or simple accident or hazard.