One of the fundamental principles of coexistence in human society is the prohibition of causing harm to others (alterum non laedere or neminem laedere). The application of this principle is regulated in the provisions on non-contractual civil liability provided by Articles 608–647 of the Civil Code. For particular sectors, the causing of damage may also be regulated by specific laws. On the basis of this liability, the purpose is that anyone who infringes the rights and legitimate interests of another is obliged to compensate him. Through compensation, the aim is precisely the full restoration of the injured party to the previous condition in which he would have been if the unlawful act had not occurred.
Article 608 of the Civil Code states:
“The person who, unlawfully and with fault, causes damage to another in his person or in his property, is obliged to compensate for the damage caused. The person who caused the damage is not liable when he proves that he is not at fault. The damage is considered unlawful when it results from the violation or infringement of the rights and interests of another, which are protected by the legal order or by good morals.”
Consequently, if the unlawful act and its causal link with the damage are proven, a relationship of obligation arises, consisting of the subjective right of the injured party to claim compensation and the obligation of the responsible person to pay it. Furthermore, by causing damage “to the person or property” of the injured party, it is understood not only the connection between him and the damage, but also the distinction between infringements of a pecuniary nature and those of a non-pecuniary nature to the rights and legitimate interests of the injured party. Article 609 of the Civil Code states that:
“The damage must be the direct and immediate consequence of the act or omission of the person. The failure to prevent an event by the person who has the legal duty to avoid it makes him liable for the damage caused.”
Thus, in order for there to be civil liability for the causing of non-contractual damage (pecuniary and non-pecuniary), four conditions must cumulatively exist, as follows:
1. The damage (pecuniary or non-pecuniary).
2. The unlawful act (unlawful action or omission).
3. The causal link between the unlawful action or omission and the damage caused.
4. Fault (in the form of intent or negligence).
– Pecuniary and Non-Pecuniary Damage
The existence of damage itself means that from the actions or omissions of one subject, another subject has suffered harm to his person or property. Depending on the nature of the infringed right, the damage may be pecuniary or non-pecuniary. Article 640 of the Civil Code provides: “The pecuniary damage that is compensated consists of the loss suffered and the loss of profit. Also compensated are the expenses reasonably incurred to avoid or reduce the damage, those that were necessary to determine the liability and the extent of the damage, as well as the reasonable expenses incurred to secure compensation by out-of-court means.”
With regard to damage, Articles 486 and 640 of the Civil Code distinguish the loss suffered as a reduction of assets, known as actual damage (or emergency damage), and the loss of profit. Pecuniary damage results in the impairment of the injured party’s property in the narrow economic sense, that is, the unlawful loss of property. Therefore, compensation for pecuniary damage aims to restore the injured party’s property to its previous condition.
As for non-pecuniary damage, the Constitution of the Republic of Albania, in its preamble, has foreseen among its objectives the building of a state of law and the guarantee of fundamental human rights and freedoms. The Constitution provides: “… the dignity of man, his rights and freedoms, … social justice … are the foundation of this state, which has the duty to respect and protect them.” According to Articles 3, 15, and following of the Constitution, special and equal protection of pecuniary and non-pecuniary goods of man is foreseen.
Non-pecuniary damage, provided in Article 625 of the Civil Code, as a broad and comprehensive category of non-contractual damages, includes any type of damage suffered from the infringement of non-pecuniary rights and interests that form part of human values and that are not subject to direct economic evaluation in the market. In essence, this provision recognizes the right to compensation for any type of non-pecuniary non- contractual damage, which is “different from pecuniary damage.”
– The Unlawful Act
Facts are qualified as unlawful when they result in the violation or infringement of the rights, freedoms, and interests of others, which enjoy protection from the legal order or good morals (the Constitution, international acts, laws and by-laws, or the general principles of law).
The facts that may cause damage may take the form of actions or omissions. The unlawful action or omission is a voluntary and conscious conduct of the person. Unlawfulness is qualified as an objective category. Article 609/2 of the Civil Code provides: “The failure to prevent an event by the person who has the legal duty to avoid it makes him liable for the damage caused.” Thus, according to this provision, the person who, because of a legal norm or any other rule, does not fulfill a standard established by law, bears civil liability for all damages that result as the direct and immediate consequence of the unlawful act. Therefore, even omission brings the same liabilities as action.
– The Causal Link
The causal link is provided in Article 609 of the Civil Code. It is assessed as the existence of an objective, direct, and independent connection from the will of the person causing the damage, between the unlawful action or omission and the resulting consequence. Thus, according to this provision, in order for there to be a causal link between the unlawful act and the damage caused, the latter must be the direct and immediate consequence of the action or omission of the person. Therefore, the action and the consequence must follow one another without interruption in time. The proof of the causal link is an essential condition for the acceptance of the civil liability of the author of the unlawful act and for the determination of the corresponding civil obligation.
– Fault
Fault is the subjective attitude of the person in relation to the unlawful action or omission and the consequences that result from it. It implies the internal psychic will to perform the action and to ensure or allow the occurrence of the consequences. This attitude appears in two aspects: the intellectual element and the volitional element. The intellectual element concerns the subjective possibility to foresee, or not, the consequences that may result from a given action or omission. The volitional element is related to the intention or not of their occurrence. It does not matter whether the person knows exactly which law he has violated; what matters is that he knows or has had the possibility to know that his action or omission is blameworthy by society. The absence of knowledge of the laws does not exclude a person from civil liability.
