Tort Liability in Spain (Art. 1902 CC): Negligence, Causation and Damage

Non-Contractual Civil Liability: Art. 1902 of the Spanish Civil Code

Article 1902 of the Código Civil (Spanish Civil Code) provides: "A person who by act or omission causes damage to another, where fault or negligence is involved, is obliged to repair the damage caused." This is the general clause governing fault-based (Aquilian) liability under Spanish civil law.

Requirements for Liability (Art. 1902 CC)

The settled case law of the Tribunal Supremo (Spanish Supreme Court) (STS of 14 March 2019; STS of 26 September 2022) requires four elements to be established:

1. Act or Omission

The conduct may be active (doing something that causes harm) or passive (failing to take required action where a duty to act exists). Liability by omission requires a prior duty to act arising from statute, contract, or a risk situation created by the defendant.

2. Fault or Negligence

Art. 1902 CC requires the presence of fault (as opposed to strict liability regimes). Fault is understood as the failure to exercise the standard of care required in the specific circumstances, the "good father of a family" standard (art. 1104 CC), applied objectively: the level of care that a prudent person, in the same situation and with the same knowledge, would have observed.

The STS of 18 June 2019 clarifies: "The benchmark is not the ideal conduct of the most diligent person, but the minimum level of care expected of any person acting in ordinary legal and social dealings."

Reversal of the burden of proof: Recent Supreme Court case law has softened the fault-based regime in high-risk scenarios, moving towards quasi-strict liability through presumptions of fault (res ipsa loquitur): where damage occurs within the defendant's sphere of activity without the intervention of third parties, fault is presumed unless the defendant proves an external cause.

3. Actual Damage

The damage must be real, actual, and quantifiable: not merely hypothetical or potential. A distinction is drawn between:

• Damnum emergens (actual loss): effective patrimonial loss (medical expenses, repair costs, professional fees)
• Lucrum cessans (loss of profit): earnings foregone as a direct consequence of the harmful event (STS of 24 May 2018: must be established with reasonable certainty, not mere expectation)
• Moral damages: non-patrimonial harm (suffering, distress, loss of quality of life). Specific proof of the harm itself is not required, but the circumstances giving rise to it must be established

4. Causal Link

The causal relationship between the conduct and the damage is the most contested element. The Supreme Court applies the theory of adequate causation (STS Full Chamber, 14 March 2019): of all the conditions contributing to the outcome, the adequate cause is that which, generally and in accordance with experience, is capable of producing it.

Concurrent causation and contributory negligence (art. 1103 CC): where the victim has contributed to the damage through their own negligent conduct, the court may reduce the damages award proportionately (Supreme Court judgments involving pedestrians crossing against a red light).

Vicarious Liability (Arts. 1903–1910 CC)

Art. 1903 CC establishes vicarious liability for the acts of others, covering:

• Parents for minor children under their guardianship
• Guardians for wards under their authority
• Employers for employees acting in the course of the duties entrusted to them, the most litigated category: STS of 20 December 2019 (workplace accident involving a subcontractor; liability of the main contractor)
• Educational institutions for damage caused by pupils during school activities

Liability under art. 1903 CC has also been interpreted with a reversal of the burden of proof: fault in the selection (culpa in eligendo) or supervision (culpa in vigilando) of the defendant is presumed.

Special Liability Regimes

Motor Vehicle Accidents (LRCSCVM)

Royal Legislative Decree 8/2004 (consolidated text of the LRCSCVM, the Motor Vehicle Civil Liability and Insurance Act) establishes strict liability for personal injury and quasi-strict liability for property damage arising from traffic accidents. The only grounds for exemption are the victim's exclusive fault, force majeure, or the act of a third party.

The damages scale established by Act 35/2015 is binding for bodily injuries in traffic accidents. The Supreme Court has consistently held that the scale's tables preclude free judicial assessment of damages.

Liability for Defective Products (Royal Legislative Decree 1/2007: LGDCU)

Strict liability of manufacturers and suppliers for damage caused by defective products (arts. 135–149 of the LGDCU (General Consumer and User Protection Act). The injured party need only prove the defect, the damage, and the causal link; fault need not be established.

Liability of the Keeper of Animals (Art. 1905 CC)

The owner of an animal, or the person who uses it, is liable for the damage it causes, even if the animal escapes or goes astray.

Quantification of Damages and Limitation Period

Limitation period (art. 1968.2 CC): 1 year from the date on which the injured party became aware of the damage, and of the person responsible. The STS of 24 October 2022 clarifies: the limitation period runs from the point at which the injured party knows who is responsible, not from the date of the harmful event itself.

Default interest: Interest under art. 576 of the LEC (Ley de Enjuiciamiento Civil: Civil Procedure Act) (statutory interest rate plus 2 percentage points) accrues from the date of the first-instance judgment in non-contractual liability cases (STS of 5 June 2018).

Conclusion

Liability under art. 1902 CC remains the general rule of civil liability in Spain, but the courts have progressively shaped it to approach strict liability in high-risk sectors. Litigants must establish all four elements, with particular attention to the causal link and the quantification of moral damages.

Lexiel enables you to search Supreme Court judgments on non-contractual liability and to draft damages claims with verified citations to the Tribunal Supremo.