Damages for breach of contract

indemnización contractual


What are the legal requirements for entitlement to compensation for damages in case of breach of contract?

Article 1.101 Civil Code regulates the compensation for damages in case of breach of contract. If there were a contractual relationship, It would be a tort, regulated in Article 1902 and the Civil Code which prescribes within one year.


1.- Existence of a contractual relationship: Is needed to “the realization of the harmful event happens within the orbit of the agreement rigorous and precise development as bargaining content” (STS 11.10.1991, STS 16.12.1983).

2.- Try the damage occurred: You can not make a sentence about some future damages even know if they come to occur. However, itself admits that can be tested by presumptions "If the link is logical and in accordance with the rules of human judgment" (STS 22.07.1995).

3.- Liability to a particular person: There must be a person with an intentional behavior, negligent or delinquent, namely, that incurs guilt broadly. (STS 29.07.1994). There dolo when a failure to voluntarily occurs and conscious. Negligence is the omission of the diligence required by the nature of the obligation and appropriate to the circumstances of people, Time and place (article 1.104 the C.Civil). Incurred delinquency when the deadline is missed for a delivery (article 1.100 Civil Code).

There breach of the obligations, in addition to cases of fraud, neglect or default, if for any wrongful act causes injury altering the performance of an obligation (STS 31.03.1997).

4.- Causation: They must prove that there is a causal relationship between the breach and the damage (STS 31.01.1992).


The limitation period is 5 years old (article 1964 Civil Code).

In the case that in the same case concur, contractual liability and tort, the injured party may choose between the two action.

Concepts comprising

Compensation for damages includes both present injury, as the gain has ceased to obtain (lost profits) or if the debtor had good faith, foreseeable because of failure (damages). If the debtor acted with malice, absolutely must compensate for all damages (article 1.107 Civil Code).

It is controversial whether once requested compensation for damages, the court can change the action (contract or tort) exercised. When in doubt, the best option is to propose actions as subsidiaries, so that we leave in an appeal incongruity of the judgment.

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