VICARIOUS LIABILITY – A REALITY OF THE NEW CIVIL CODE

Abstract

In the field of contractual liability, the vicarious liability may appear, at first glance, as an idea that is irreconcilable with the principle of relativity of the effects of the contract and with that of its binding force, expressly consecrated by our Civil Code, at art. 973 and, respectively, art. 969. Yet, to tarry with a strict, literal interpretation of these legal provisions would mean to remain at the social, economic and political conception of the year 1864, refusing to take into account today’s social, economic, political and even legal realities. Therefore, it is necessary to perceive these legal rules differently, namely in line with the current development of legal relations, characterized especially by complexity, in various areas, where the diversity of the obligation assumed under a contract requires the cooperation under various forms with other law subjects; it may even happen that sometimes the performance of the obligation by its debtor is impossible without the assistance of aids or other substitutes. The principle of vicarious liability is not expressly consecrated in the present Civil Code, but its applicability has been accepted by the majority of the legal doctrine and embraced by the judicial practice. The legislative gap is, however, bridged in the texts of the new Civil Code, which, under art. 1519, entitled Liability for the acts of third parties, is concerned with the formulation of this principle: If the parties do not agree otherwise, the debtor is liable for the damage caused by the fault of the person whom they used to carry out the contractual obligations. Key words: contractual liability, vicarious liability, fault, non-performance of the contract, new Civil Code